Zebras don’t change their stripes “-” and why Donnie Zabawa must be smiling.

This is a long story, so I’ll try to keep it interesting.  A claimant’s lawyer burst onto the scene in the early 2000s.  I had never heard of him before, but he was finding clients and getting results.  I got to know the members of his staff, one of whom was Donnie Zabawa.

Donnie was a Philly kid, much more than me since I grew up in the suburbs.  But we got along great.  Donnie was a bulldog with a bone.  Once he got an idea, he wouldn’t finish following it up until he got his answer.  That, I think, is what made him so valuable to the lawyer he worked for.  Donnie and I became friendly.

I found out more of Donnie’s life story.  He had been in a bicycle accident and received the settlement proceeds from his claim.  He gave it to a broker, I don’t remember how he found this broker.  But he lost his money with the broker through poor management.  He hired the lawyer, who would later become his boss, to file the arbitration.  After arbitrators were picked, they proceeded with the case.  Then a decision was made to add a “control person” claim and added, among others, Gaeton “Guy” Della Penna, a principal of the brokerage firm.

Della Penna fought his being added to the claim on a number of grounds, including that he had not had an opportunity to pick arbitrators.  The arbitration award was $125,000, but that was only the beginning.  The Motion to vacate and cross-motion to confirm became the battle royale.  Donnie made a number of motions, including a recusal motion for one of the judges.  Donnie got governmental authorities involved.  He threw all his energy into it, without any formal legal training.  He even handled an appeal at the Fifth District Court of Appeals.

While the appeal was pending, Donnie left me a message on my office voicemail.  All he said was “it was bad.”  Donnie had a cough that wouldn’t go away.  He went to the hospital and found a spot on his lung.  They tried to operate and Donnie didn’t survive.  From when he found out to when he passed away, I think it was about 6 weeks.

In the meantime, the appeal continued.  I think it had already been submitted for ruling, so there was nothing more to be done.  Posthumously, Donnie Zabawa was victorious.  That’s the first part.

The second part is present day news.  Della Penna, for whom Donnie had no love, was in the news last week.  He was indicted for, and sued for, running a Ponzi scheme in the Sarasota area.  The SEC press release is here.

The SEC alleges that Della Penna was running three investment funds, which lost a lot of money, and then diverted funds to himself and his girlfriend.  Lucky for society, “only” $3.8 million was lost.  This is small potatoes in the Ponzi arena.  I’ll bet Donnie is looking down and telling us that he told us so.

And Donnie’s impact on FINRA remains, too.  In 2007, after Donnie’s passing and the appellate ruling, FINRA added rule 12309, and specifically 12309(c) governing the amendment of pleadings to add parties after arbitrators have been appointed.  This created a procedure that did not exist and was brought to light by Donnie and his lawyer adding Della Penna to the arbitration claim.  Others may have caused it as well, but I refer to it as the “Zabawa rule.”  Donnie would have liked that.

On this day after Memorial Day, we are reminded that there are warriors on the battlefield, who give their lives serving their country and countrymen, and there are warriors in everyday life, fighting battles on a smaller scale, sometimes leaving a mark without ever getting credit.  So today, I remember the soldiers in war and the soldiers in life.  Carry on, Donnie, and have a cheesesteak for me.

That’s the view of one lawyer from Jupiter, Palm Beach County, Florida.  I’m Marc Dobin.

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