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Bennie v. Munn

United States District Court, D. Nebraska

September 30, 2014

ROBERT R. BENNIE, JR., Plaintiff,
v.
JOHN MUNN, et al., Defendants

For Robert R. Bennie, Jr., individually and on behalf of Bob Bennie Wealth Management, Inc. on behalf of Bob Bennie Wealth Management, Inc., Plaintiff: David M. Newman, L. Steven Grasz, HUSCH, BLACKWELL LAW FIRM - OMAHA, Omaha, NE; Marnie A. Jensen, V. Gene Summerlin, Jr., HUSCH, BLACKWELL LAW FIRM - LINCOLN, Lincoln, NE.

For John Munn, in his official capacity, Jack E. Herstein, in his official capacity, Rodney R. Griess, in his official capacity, Defendants: Mark C. Laughlin, Timothy J. Thalken, FRASER, STRYKER LAW FIRM, Omaha, NE.

For LPL Financial LLC, Interested Party: Alison Gutierrez, Patrick B. Griffin, KUTAK, ROCK LAW FIRM - OMAHA, Omaha, NE.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

John M. Gerrard, United States District Judge.

This matter is before the Court after a bench trial on the plaintiff's claim for injunctive relief from the defendants' alleged violation of his First Amendment rights. For the reasons that follow, the Court finds that the plaintiff engaged in First Amendment-protected activity and that he may have been singled out by State officials at least in part because of the exercise of his First Amendment rights. But while that conduct was improper, the Court finds that the adverse actions taken by the defendants were not substantial enough to deter a person of ordinary firmness from continuing to exercise his First Amendment rights. So, while the Court disapproves of the defendants' conduct, the Court will dismiss the plaintiff's complaint.

SUMMARY OF FACTS

The plaintiff, Robert Bennie, at all relevant times worked as a financial advisor, specializing in wealth management and retirement planning. Filing 192 at 30. He worked as a representative of Linsco Private Ledger (LPL), a brokerage firm, under the d/b/a name of " Bob Bennie Wealth Management." Filing 192 at 31, 42-43. LPL held the investors' assets and accounts, and its compliance department helped LPL representatives comply with financial regulations, particularly rules promulgated by the Financial Industry Regulatory Authority (FINRA). Filing

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192 at 31. The compliance department, among other tasks, oversaw and approved representatives' advertising and marketing. Filing 192 at 32. The plaintiff was also politically active. He had become involved with the state Republican Party in the late 1990s, but became disenchanted with it, and began to support the Tea Party movement in 2009. Filing 192 at 12-25, 27-28.

LPL, as a broker-dealer, is subject to regulation by the Nebraska Department of Banking and Finance. Filing 173 at 1. The four defendants are employees of the Department. Filing 173 at 2. Specifically, John Munn was the director of the Department, Rodney Griess was the supervisor of the Department's Securities Investigation and Compliance Unit, Jackie Walter was a securities examiner,[1] and Jack Herstein was the assistant director of the Department in charge of the Bureau of Securities (making him Walter and Griess' direct supervisor). Filing 173 at 2.

In December 2009, the plaintiff was informed that state financial regulators had contacted LPL about a promotional software CD-ROM[2] that the plaintiff had distributed. Filing 192 at 37, 50. The plaintiff said he had distributed the last of the CD-ROMs years before, and that's why a subsequently-required disclosure was missing. Filing 192 at 40-41. Griess explained that as part of his duties for the Department, he was responsible for ensuring that advertising by investment advisors or registered representatives complied with FINRA regulations. Filing 192 at 114-15. He said the CD-ROM had been given to Walter by her husband, who had gotten it from a friend or acquaintance at a county fair. Filing 192 at 116-17. Griess received it in November 2009, and questioned whether it displayed all the proper disclosures. Filing 192 at 117-18. So, in mid-November, Griess contacted LPL about the CD-ROM, but LPL did not immediately reply. Filing 192 at 125-26.

The plaintiff also drew the attention of regulators for a television advertisement he ran in late 2009. Filing 192 at 45. In the advertisement, the plaintiff offered potential clients $100 toward the purchase of a firearm if they decided to do business with him. Filing 192 at 45. LPL had approved the advertisement, and it was consistent with FINRA rules permitting a promotional gift of up to $100. Filing 192 at 45-47. Griess spoke to Chris Zappala, the LPL vice-president in charge of marketing regulatory review, on December 30, 2009, and then wrote him a letter on the same date. Filing 173 at 2; E214. The letter included a copy of the advertisement, and asked whether LPL had approved it. E214. Griess said the advertisement was " unusual," and he " couldn't imagine" LPL had approved it. Filing 192 at 133-35.

A conference call was eventually set for February 4, 2010, to discuss the CD-ROM and television commercial. On February 1, an article appeared in the Lincoln Journal-Star newspaper under the headline, " Bennie acts as Lincoln's tea party voice." E220; see also Don Walton, Bennie acts as Lincoln's tea party voice, Lincoln-Journal-Star, February 1, 2010, http://journalstar.com/news/local/govt-and-politics/bennie-acts-as-lincoln-s-tea-party-voice/article_242e3a4e-0ec2-11df-87b1-001cc4c03286.html. In the caption for the accompanying photograph of the plaintiff, he was identified as " Bob Bennie, owner of Bob Bennie Wealth Management." E220.

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And the plaintiff's business was described in the text of the article, with the statement: " Bob Bennie Wealth Management is a business that runs the financial table, from retirement planning and estate planning to investment management." E220. But the bulk of the article described the plaintiff's political activities and views: he was described as angry, and made several comments that were sharply critical of elected officials. E220. The plaintiff said that he hadn't discussed his business with the reporter, and didn't ask the reporter to include information about his business in the article. Filing 192 at 64.

Griess said he saw the newspaper article and found it to be " also quite unusual." Filing 192 at 139. He said at trial that the sentence referring to " Bob Bennie Wealth Management" stood out to him, because it meant that the article could be an " advertisement" for FINRA purposes. Filing 192 at 140. Griess forwarded a link to the article to Zappala. Filing 192 at 141. But the email Griess sent Zappala didn't ask about the reference to the plaintiff's business--instead, in addition to the link, Griess quoted several of the plaintiff's more inflammatory remarks about ...


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