Aslin v. Financial Industry Regulatory Authority, Inc.
704 F.3d 475
7th Cir.2013Background
- Aslin was counted toward FINRA's Taping Rule because he previously worked for a Disciplined Firm within the past three years.
- Brewer Financial became a Disciplined Firm on March 5, 2011; Aslin was no longer employed there but remained counted.
- FINRA notified BEST Direct on April 1, 2011 that it was subject to the Taping Rule due to Brewer Financial connections.
- BEST Direct fired Aslin on May 4, 2011 to reduce the number of Disciplined Firm brokers.
- Aslin sued claiming the Taping Rule violated his Fifth Amendment due process rights and sought declaratory and injunctive relief.
- The district court dismissed; on appeal the case was found moot because the challenged designation no longer applied by March 2012 and no ongoing controversy remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the case moot due to the lack of ongoing controversy? | Aslin contends ongoing harm from the designation. | FINRA's action is not continuing against Aslin. | Yes, moot; lack of subject matter jurisdiction. |
| Does the case fall within the capable of repetition yet evading review exception? | There is potential repeated impact if rule applied again. | Expulsions and bars are unlikely; repetition not reasonably expected. | No, not applicable; no reasonable expectation of repetition. |
| Did Constantineau control defeat of justiciability due to stigma without ongoing designation? | Aslin seeks to purge stigma of the rule. | Past designation no longer occurring; relief cannot remedy ongoing harm. | Not applicable; no ongoing designation to challenge. |
Key Cases Cited
- Honig v. Doe, 484 U.S. 305 (U.S. 1988) (mootness and ongoing case or controversy doctrine)
- Stotts v. Community Unit School Dist. No. 1, 230 F.3d 989 (7th Cir. 2000) (mootness, ongoing controversy limitations)
- Moore v. Ogilvie, 394 U.S. 814 (U.S. 1969) (capable of repetition, yet evading review framework)
- Norman v. Reed, 502 U.S. 279 (U.S. 1992) (capable of repetition; tight control of the exception)
- City of Los Angeles v. Lyons, 461 U.S. 95 (U.S. 1983) (requirement of reasonable expectation of repetition)
- Wisconsin v. Constantineau, 400 U.S. 433 (U.S. 1971) (due-process stigma does not render future relief unless ongoing)
- Weinstein v. Bradford, 423 U.S. 147 (U.S. 1975) (capable of repetition but evading review standard applied)
- United States v. W.T. Grant Co., 345 U.S. 629 (U.S. 1953) (mootness related to actions that have ceased)