Award FINRA Dispute Resolution

In the Matter of the Arbitration Between:

Claimant Wells Fargo Advisors, LLC

Case Number: 13-01895

vs.

Respondent Evan A. Sail

Hearing Site: New York, New York

Nature of the Dispute: Member vs. Associated Person

REPRESENTATION OF PARTIES

For Claimant Wells Fargo Advisors, LLC: Christophers. Griesmeyer, Esq., Greiman, Rome & Griesmeyer, LLC, Chicago, Illinois.

For Respondent Evan A. Sail: Michael Kalmus, Esq., Law Offices of Michael Kalmus, New York, New York.

CASE INFORMATION

Statement of Claim filed on or about: June 27, 2013. Claimant signed the Submission Agreement: June 25, 2013.

Statement of Answer and Counterclaim filed by Respondent on or about: September 4, 2013. Respondent signed the Submission Agreement: October 7, 2013.

CASE SUMMARY

Claimant asserted the following causes of action: breach of promissory note agreement, unjust enrichment, and conversion.

Unless specifically admitted in his Answer, Respondent denied the allegations made in the Statement of Claim and asserted various affimnative defenses.

In his Counterclaim, Respondent asserted the following causes of action: breach of contract and misrepresentation.

Unless specifically admitted in its Answer, Claimant denied the allegations made in the Counterclaim and asserted various affirmative defenses.

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RELIEF REQUESTED

In the Statement of Claim, Claimant requested compensatory damages in the amount of $77,693.68, interest, attorneys' fees, costs, lost revenue, specific performance, and any further relief the Panel deems equitable and just.

At the close of the hearing. Claimant requested compensatory damages in the amount of $183,326.84, representing the unpaid balance on a promissory note, interest on the unpaid balance, attorneys' fees, and costs.

In his Answer and Counterclaim, Respondent requested dismissal of Claimant's Statement of Claim, compensatory damages in the amount of $150,000.00, reasonable attorneys' fees, interest, liquidated damages in the amount of $150,000.00, costs, and disbursements.

In its Reply to the Counterclaim, Claimant requested dismissal of the Counterclaim in its entirety.

OTHER ISSUES CONSIDERED AND DECIDED

The Arbitrators acknowledge that they have each read the pleadings and other materials filed by the parties.

On or about March 7, 2014 Claimant filed a Motion to Dismiss Respondent's Counterclaim; Respondent filed a response and Claimant submitted a reply. By Order dated April 11, 2014 and after due deliberation, the Panel granted the Motion without prejudice pursuant to Rule 13504(a)(6)(B) of the Code of Arbitration Procedure.

On or about June 26, 2014, Respondent filed a Motion to amend his Answer pursuant to Rule 13309(b) and (c) to add Third-Party Respondents. Claimant filed an Opposition on July 3, 2014. After due deliberation, the Panel denied Respondent's Motion on July 9, 2014.

The parties have agreed that the Award in this matter may be executed in counterpart copies or that a handwritten, signed Award may be entered.

AWARD

After considering the pleadings, the testimony and evidence presented at the hearing, and the post-hearing submissions, the Panel has decided in full and final resolution of the issues submitted for determination as follows:

1. Claimant's claims are denied in their entirety.

2. Any and all relief not specifically addressed herein is denied.

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FEES

Pursuant to the Code, the following fees are assessed:

Filing Fees FINRA Dispute Resolution assessed a filing fee* for each claim:

Initial Claim Filing Fee =$ 1,750.00 Counterclaim Filing Fee =$ 1,425.00

*The filing fee is made up of a non-refundable and a refundable portion.

Member Fees Member fees are assessed to each member firm that is a party in these proceedings or to the member firm that employed the associated person at the time of the events giving rise to the dispute. Accordingly, as a party. Wells Fargo Advisors, LLC is assessed the following:

Member Surcharge =$ 1,100.00 Pre-Hearing Processing Fee =$ 750.00 Hearing Processing Fee =$ 2,750.00

Adiournment Fees Adjournments granted during these proceedings for which fees were assessed:

June 17-18. 2014 adiournment bv Respondent =$ 1.125.00

Total Adjournment Fees =$1,125.00

The Panel assessed the $1,125.00 Adjournment Fees to Respondent

Discoverv-Related Motion Fees Fees apply for each decision rendered on a discovery-related motion. Two (2) Decisions on discovery-related motions on the papers with (1) one arbitrator @ $200.00 =$ 400.00 Respondent submitted (2) discoverv-related motions Total Discovery-Related Motion Fees =$ 400.00

1. The Panel has assessed $200.00 of the discovery-related motion fees to Claimant. 2. The Panel has assessed $200.00 of the discovery-related motion fees to

Respondent

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Hearing Session Fees and Assessments The Panel has assessed hearing session fees for each session conducted. A session is any meeting between the parties and the arbitrators, including a pre-hearing conference with the arbitrators, that lasts four (4) hours or less. Fees associated with these proceedings are:

Three (3) Pre-hearing sessions with the Panel @ $1,125.00/session = $3,375.00 Pre-hearing conferences: December 30, 2013 1 session

February 13, 2014 1 session April 9, 2014 1 session

Two (2) Hearing sessions @ $1,125.00/session = $2,250.00 Hearing Dates: August 27. 2014 2 sessions Total Hearing Session Fees = $5,625.00

1. The Panel has assessed $2,812.50 of the hearing session fees to Claimant 2. The Panel has assessed $2,812.50 of the hearing session fees to Respondent

All balances are payable to FINRA Dispute Resolution and are due upon receipt

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ARBITRATION PANEL

David E. Robbins - PublicArbitrator, Presiding Chairperson Howard L. Sobel - Public Arbitrator Carole R. Bernstein - Non-Public Arbitrator

I, the undersigned Arbitrator, do hereby affirm, pursuant to Article 7507 of the Civil Practice Law and Rules, that I am the individual described herein and who executed this instrument which is my award.

Concurring Arbitrators' Signatures

The majority of the Panel, after hearing all the evidence, including the testimony of the parties, and having reviewed all of the submissions, do hereby find that Respondent is entitled to a set-off in the amount due and owing under the Promissory Note, including any reasonable attorneys' fees sought thereunder.

Howard L. Sobel Signature Date Public Arbitrator

Carole R. Beinstein Signature Dale Non-PuDlic Arbitrator

Dissenting Arbitrator's Signature

The Chair dissents because he believes that the Respondent's affirmative defense of a set off (the claim of an unpaid bonus) was not proven sufficiently to mitigate or offset Claimant's breach of contract claim, which the Chair believes was proven by a preponderance of the evidence, entitling Claimant to the fuji Award it sought.

David E. Robbins Ro^bir Public Arbitrator, Presiding Chairperson

September 24, 2014 Date of Service (For FINRA Dispute Resolution office use only)

^ 7 r/. Sign ure Date