A breakaway UBS adviser who launched an RIA may have violated his non-solicitation agreements, but the firm’s grievances do not merit a restraining order, a federal judge has ruled.
The Swiss wirehouse lost its request for a preliminary injunction against Phil Fiore and the three other founders of Procyon Partners under a ruling Monday. Connecticut District Judge Victor Bolden denied UBS’ motion, citing no possible “irreparable harm” that would result without a court order.
However, the dispute between the wirehouse and Fiore isn't over as there remains a separate FINRA arbitration case.
"UBS is pleased with the court's specific finding that UBS was likely to succeed on the merits of its claim that Mr. Fiore violated his non-solicitation agreements," a company spokesman said. "Even though the court denied our motion for a preliminary injunction, UBS looks forward to vindicating its rights on its claims for monetary damages in the FINRA arbitration against Mr. Fiore."
Procyon, which is based in Shelton, Connecticut, opened doors last month with help from Dynasty Financial Partners, which issued a statement praising Bolden’s decision. The advisers, known as The FDG Group while at UBS, managed more than $8 billion in institutional assets and $400 million in individual assets. The team produced nearly $6 million in annual revenue while at the firm.
UBS had accused Fiore, partners Jeffrey Farrar, Louis Gloria and Thomas Gahan of running afoul of the Protocol for Broker Recruiting by “aggressively” courting UBS clients. The firm also alleged breaches of contract and fiduciary duties, misappropriation of trade secrets and other offenses.
A central issue was whether the departing advisers properly compiled with Broker Protocol rules requiring that they each provide a list of client information that they intended to take. UBS contended that the advisers' lists specifically excluded more than a dozen large clients.
UBS further argued that Fiore was improperly soliciting UBS clients in the interlude between his termination and the official launch of Procyon Partners. For example, the firm pointed to text messages between Fiore and Lori Disbrow, CIO and plan administrator for a public employees' retirement plan in Jersey City.
"Hey buddy," Fiore texted according to court documents, "so I’m feeling like 90% so I’m on track getting rid of whatever I had!! Thanks for caring!! I also signed with Dynasty last night just wanted you to know buddy!! Hope you are well pal!!"
The exchanges showed not only the progress Fiore was making on setting up his own RIA, but the closeness of the client-adviser relationship.
"Hey buddy," Fiore texted Disbrow, "wanted to let you know that we decided on Schwab as our custodian! About to finalize real estate – it’s getting real Lori!! I hope you are good pal!!"
"That’s great," Disbrow responded. "I’m glad everything is coming together for you :) Keep me updated! I’m doing well."
Yet it wasn't text messages that became the focus of Bolden's ruling. He found that UBS has “shown a likelihood of success on the merits” of a violation of Fiore’s non-solicitation agreement because of a June 2 email blast to approximately 1,600 recipients, which included UBS clients he had worked with at the firm before it fired him last November. The message announced the opening of the new firm and the team's transition.
“Thus, the blast email was targeted at clients of UBS, clients that Mr. Fiore and other defendants clearly hoped to attract to Procyon,” Bolden wrote in the decision.
But because UBS could not demonstrate they would be done irreparable harm in absence of a restraining order, Bolden entirely dismissed their motion. The judge also rejected some evidence that the firm submitted as part of its request as “ultimately unpersuasive and inconclusive” as part of its injunction claim.
“The court’s sweeping decision is a welcome development and the principals of Procyon look forward to continuing to focus on the growth of Procyon Partners,” a spokeswoman for the firm said in a statement.
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