14-3641-cv Lobaito v. Fin. Indus. Regulatory Auth., Inc. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 22 nd day of April, tw o thousand fifteen.

PRESENT: JOHN M. WALKER, JR., REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges.

___________________ __________________ JOSEPH LOBAITO, JR., Plaintiff-Appellant , v. 14-3641-cv

FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., FINRA, Defendant-Appellee

.

___________________ __________________ FOR APPELLANT: Joseph Lobaito, Jr., pro se, Staten Island, New York. FOR APPELLEE: Suzanne Elizabeth Duddy, Financial Industry Regulatory Authority, Inc. (FINRA), Washington, D.C.2 Appeal from a judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge ; Henry Pitman, Magistrate Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on September 9, 2014, is AFFIRMED. Appellant Joseph Lobaito, Jr., pro se, appe als from the dismissal of his action under the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., against the Financial Industry Regulatory Authority, Inc. (“ FINRA”) for the alleged violation of its own rules and regulations in allowing a comment by his fo rmer employer to remain on his licenses

without substantiation. See Fed. R. Civ. P. 12(b)( 6). We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. Upon de novo review, see State Emps. Ba rgaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007), we conclude, largel y for the reasons stated by the magistrate judge in his thorough and well-reasoned Re port and Recommendation, that dismissal was

warranted in this case because FINRA has absolute immunity wi th respect to actions taken in furtherance of its regulatory duties, see St andard Inv. Chartered, Inc. v. NASD, 637 F.3d 112, 115 (2d Cir. 2011) (“There is no question that an SRO an d its officers are entitled to absolute immunity from privat e damages suits in connection with the discharge of their regulatory responsibilities.”); see also Wach ovia Bank, Nat’l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164 , 172 (2d Cir. 2011) (e xplaining that FINRA

is successor to NASD and is SRO ). Although Lobaito asks us to modify this rule, we are3 “bound by the decisions of prior panels until such time as they are ove rruled either by an en banc panel of our Court or by the Supreme Court.” Johnson v. Un ited States, 779 F.3d 125, 128 (2d Cir. 2015) (int ernal quotation marks omitted). As a result, Lobaito’s damages claim fails. Moreover, to the extent Lobaito sought non-monetary relief, he has waived any such claim. See Appellant’s Br. 6 (“Lobaito is not asking for expungement of comments but for monetary damages as a result of lost revenue due to FINRA’s actions.”). Because absolute immunity resolves all of the live issues in this case, we need not address whether the Exchange Act allows for a privat e right of action against FINRA or whether Lobaito’s claims were barred by issue preclusion. We have considered all of Lobaito’s argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court