Michelle M. Arbitrio is the Managing Partner of WSHB’s White Plains, New York, office and an accomplished trial and appellate attorney with extensive experience as a litigator in the state and federal courts of New York and Connecticut. Michelle also serves as National Trial Counsel and National Coordinating Counsel for her clients in state and federal lawsuits, multi-district litigations, FINRA arbitrations and class actions throughout the country. In her capacity as National Counsel, Michelle has handled matters in Illinois, Wisconsin, Montana, Pennsylvania, Kansas, New Hampshire, New Jersey, New York, Virginia, Texas, Florida, Kentucky, Connecticut, Maryland, Ohio, Michigan, Arizona, Nevada, Alabama, Iowa and Puerto Rico.
As a leader of the firm’s Management, Professional and Employment Liability Practices, Michelle counsels and defends directors and officers against claims alleging fraud, negligence, and breach of fiduciary duties, and a variety of professionals against claims based on alleged errors and omissions (E&O) in the performance of their professional services.
Michelle’s D&O work involves the defense of both for-profit and not-for-profit companies and their executives, and E&O work includes defending insurance agents and brokers, securities brokers, lawyers, and a wide range of other miscellaneous professionals. Michelle is regularly called upon to handle complex, high-stakes commercial litigation and claims involving allegations of gross negligence, fraud and malfeasance, harassment and discrimination, as well as litigation of non-solicitation/non-compete disputes involving special purpose acquisition companies (“SPACs”).
A recognized thought leader in the areas of D&O, E&O and EPL risks and litigation, Michelle is the current Chair of the Professional Liability Defense Federation’s Insurance Agent/Broker Claims Committee. Michelle has been published numerous times in the New York Law Journal and other esteemed publications, and she is often consulted and quoted as an expert in business, insurance and claims publications. Michelle has received numerous awards for excellence in litigation management and client service.
Michelle Arbitrio, managing partner in White Plains, New York, and Jacqueline Murphy, senior counsel, secured a dismissal of a case involving the New Jersey Law Against Discrimination (NJLAD). In this case, a discussion about religious faith dovetailed into sexual preference. When the customer revealed sexual preference and the masseur suggested it was a sin and violated God’s faith, litigation ensued. Following extensive briefing and oral argument, Superior Court Judge Anthony Pugliese granted WSHB’s motion to dismiss finding that the faith-based opinion of the masseuse expressed during the course of the massage did not violate the NJLAD. The pleadings and oral argument carefully evaluated the elements of the statutory violation. Arbitrio and Murphy further set out arguments which allowed the trial judge to reject suggestions of vicarious liability using the standard set out by Yucis v. Sears Outlet Stores. Yucis is a 2020 Third Circuit case, which lays out five factors that establish whether an employer can be held vicariously liable for discriminatory acts of their employees in the public accommodation context.
- WSHB partner Michelle Arbitrio, the leader of the firm’s FINRA Securities Practice, had a particularly newsworthy win in the 8th Circuit Court of Appeals on behalf of our client, a FINRA registered representative. In an article published in JD Supra on June 14, 2021, the issues of first impression that were decided in favor of the defense are discussed. This article can be read in full here.
- In a case in Supreme Court of Nassau County, New York, Michelle Arbitrio obtained a dismissal for our clients, a life insurance agent and his insurance agency. Plaintiff alleged that our clients wrongfully advised the plaintiff to procure life insurance policies as a tax planning vehicle for an estate, which railed to accomplish the intended purpose and caused the estate to incur $60M in damages. The allegations relate to the sale of four life insurance policies from four different life insurance carriers, involving different trusts and trustees, beneficiaries and face values. The Third Party Plaintiff asserted claims of fraud, conspiracy to commit fraud, unjust enrichment, and gross negligence against the clients. The total face value of all of the policies was $38M, and the Third Party Plaintiff alleged that the estate paid $16M in premium payments. The Third Party Plaintiff also named lawyers, tax advisors, life insurance carriers and other life agents and alleged that they were also liable for damages resulting from the purchase of unsuitable life insurance policies. Arbitrio moved to dismiss on the grounds that the Third Party Plaintiff, as a beneficiary of the life insurance proceeds, lacks standing to sue its clients because, pursuant to NY law, any such suit must be brought by the individual insured under the life insurance policy, or the insured’s estate if the insured died. WSHB also moved to dismiss the fraud and breach of fiduciary duty claims for failure to state a cause of action pursuant to CPLR 3211(a)(7), and moved to dismiss the breach of fiduciary duty and unjust enrichment claims on statute of limitations grounds pursuant to CPLR 3211 (a)(5). In its Decision and Order, the Court agreed with our argument that the Third Party Plaintiff, as a beneficiary of the life insurance proceeds, lacked standing to sue the clients because NY law requires any such suit to be brought by the individual insured under the policy, or the insured’s estate if the insured died. As such, the Court dismissed all claims against our clients.
- In a case where Michelle Arbitrio represented a Third Party Administrator of a Pension Plan, District Judge Richard Sullivan in the U.S. District Court for the Southern District of New York granted her motion and dismissed all claims against the client. DJ Sullivan agreed with Arbitrio's argument that the Insured was not a fiduciary of the plan, and had no legal obligation or duty to provide Plan documents or to issue benefits. The Judge also found in favor of WSHB’s client by further holding that the federal ERISA statute preempted plaintiff’s common law claims, and that the claims were untimely.
- In a case where Michelle Arbitrio represented an insurance agency and its brokers, Judge Brandveen of the Supreme Court of Nassau County, New York, denied plaintiff’s motion for summary judgment and granted summary judgment based on Arbitrio's defense. The Court held that the documents and plaintiff’s own testimony supported a finding that the broker procured the type of insurance that the plaintiff expressly requested from the broker. The Court further held that there was no special or privity-like relationship between the plaintiff and the insured, and as such, it did not impose a heightened duty on the broker.
- Arbitrio Wins Disability Insurance Policy Language Dispute in U.S. Court of Appeals January 30, 2015 Michelle Arbitrio (Partner – New York) obtained a dismissal before the U.S. Court of Appeals for the Second Circuit, in a case in which the plaintiff alleged wrongful denial of his request for long-term disability benefits by Arbitrio’s client, pursuant to ERISA. Arbitrio moved for summary judgment in District Court on the ground that the action was time-barred by language in the policy requiring that policyholders commence legal actions within three years of the date that a proof of loss is due under the policy. The plaintiff argued that the policy language was ambiguous and not permissible under New York law, which has a six-year statute of limitations for breach of contract actions. The District Court initially agreed with Arbitrio’s arguments and granted summary judgment. The plaintiff subsequently made a motion for reconsideration, which was denied. Plaintiff then appealed to the Second Circuit. Arbitrio argued that, when afforded its plain meaning, the policy language is clear and unambiguous and that New York Courts have consistently held that parties can contract to reduce the statute of limitations from six years to three years. After oral argument, the U.S Court of Appeals agreed with Arbitrio and upheld the District Court’s decision.
- Arbitrio Obtains $1.3 Million Verdict for Fortune 500 Client April 2, 2014 Michelle Arbitrio (Partner – New York) obtained a verdict in the Supreme Court of Danbury, CT, on behalf of her client, a Fortune 500 international electronics corporation, for $1.3 million in a commercial contract dispute involving solar energy panels. The defendant, a solar energy company, purchased solar panels from plaintiff, Arbitrio’s client. The defendant paid a small deposit for the panels but refused to pay the balance of more than $1 million, claiming that the panels were defective. As a result, Arbitrio brought suit against the solar energy company alleging breach of the terms of a written contract for the purchase and sale of solar panels. The defendants brought counterclaims for rescission and violations of the Connecticut Unfair Trade Practices Act. At trial, Arbitrio presented documentary and testimonial evidence that the electronics company delivered solar panel units to the defendants, and that the solar panels met the specifications for energy output outlined in the contract and marketing materials. In addition, Arbitrio established the validity and enforceability of a ‘personal guaranty’ addendum to the contract signed by the owner of the solar energy company, enabling them to hold the owner of the defendant company personally liable.
- Arbitrio Wins Motion to Intervene and Enforce Class Action Settlement in Iowa Federal Court December 20, 2013 Michelle Arbitrio (Partner – New York) won a motion to intervene and enforce a class action settlement on behalf of a securities broker in a matter venued in the United States District Court for the Southern District of Iowa, Central Division. Initially, the claimant commenced a securities arbitration in the Financial Industry Regulatory Authority (“FINRA”) against the respondents, a broker-dealer and one of its registered representatives, alleging that the respondents recommend that the claimants purchase securities products that were overly risky and illiquid, and therefore unsuitable for his risk tolerance and financial status. Following discovery, the respondents learned that the claimant had already been part of a class action lawsuit against the same broker-dealer involving different securities products. After further investigation, the respondents learned that the class action settlement agreement included language precluding the claimants from bringing claims against the broker-dealer and/or its agents relating to any securities products sold to him through the date of the agreement. Based on this information, Arbitrio moved to intervene in the class-action lawsuit, moved to enforce the terms of the class action settlement and requested a permanent injunction enjoining the claimant from pursuing the FINRA action. The Claimants opposed the motion, alleging that the release language in the class-action settlement agreement did not cover the situation at issue, or in the alternative the language was overbroad and unconscionable. After a hearing, the court granted a permanent injunction precluding the claimants from pursuing the claims.
- Arbitrio Wins Award on Behalf of Securities Broker Client December 23, 2013 Michelle Arbitrio (Partner – New York) obtained a defense award on behalf of her client, a securities broker, following an arbitration held in Milwaukee, Wisconsin. The award was featured in ArbCheck Reporter, a widely read publication in the securities industry. The claimants brought a FINRA arbitration seeking compensatory damages in excess of $780,000 against Arbitrio’s client, three other brokers, and their broker-dealer. The claimants alleged that the respondents breached their fiduciary duties by failing to disclose material facts concerning the opening and closing of several brokerage accounts, and the purchase and sale of variable annuities. After a four-day hearing, the panel dismissed the claimants’ claims with prejudice in their entirety and stated in part:
The evidence introduced at hearing gave no indication that respondents violated any law, regulation or duty owed to claimants. The evidence also showed that claimants suffered no economic loss because of respondents management of their accounts, but instead gained value during the time period covered by the claims. Accordingly, claimants failed to demonstrate entitlement to monetary damages, and their claims were determined to be false.The panel also recommended that all references to the claims be expunged from the brokers’ records.
- Pace University School of Law (J.D., 2002, cum laude; Pace International Law Review, Articles Editor)
- Providence College (B.A., 1999, cum laude; Member, National Political Science Honor Society; Member, National History Honor Society)
Licensed to Practice in
- New York
- U.S. District Court, Eastern District of New York
- U.S. District Court, Northern District of New York
- U.S. District Court, Southern District of New York
- U.S. District Court, District of Connecticut
- U.S. Supreme Court
- U.S. Court of Appeals, Second Circuit
- U.S. Court of Appeals, Eighth Circuit
- Firm News, 1.20.22
- Newsroom, 1.16.20
- Newsroom, 2.14.18
Events, Seminars & Speaking Engagements
- “Social Medial Solutions for Promoting Diversity, Equity and Inclusion.” Women in Insurance Leadership ExecuSummit, Mohegan Sun, Uncasville, CT, March 9, 2022
- “The New Normal – Balancing Diversity and Inclusion Goals with Work/Life Balance,” DRI Construction Law Seminar, Austin, TX, January 26-28, 2022
- “The Coming Wave of SPAC Litigation: D&O and E&O Perspectives on the SPAC Trend,” Professional Liability Defense Federation Annual Conference, Nashville, TN, October 7, 2021
- “The Past is Prologue: The Coming Covid-19 Investor Claims Tsunami,” Professional Liability Defense Federation Annual Meeting (Virtual), October 2, 2020
- "A Discussion Regarding Insurance Agents and Brokers E&O Claims Relating to Covid-19," ExecuSummit Webinar, July 21, 2020
- “Active Shooter: Emerging Insurance and Risk Management Perspectives,” The Institutes’ Future of Risk Virtual Conference, April 3, 2020
- "Women, Compensation and the Gender Pay Gap," Women Leaders in Insurance ExecuSummit, Mohegan Sun, Uncasville, CT, March 2, 2020
- “Defending Insurance Agent and Broker Failure to Procure Claims,” 13th Annual E&O Insurance ExecuSummit, Mohegan Sun, Uncasville, CT, October 30, 2019
- “Emerging Risks for Insurance Agents and Brokers – Know Thyself and What You Sell/Buy,” Professional Liability Defense Federation Annual Conference, Chicago, IL, September 27, 2019
- “Professional, D&O and EPL Issues Relating to Mass Shootings,” CLM’s 2019 Cyber, Management & Professional Liability Conference, Boston, MA, July 11, 2019
- “Miscellaneous Professional Liability: Insuring the New and Unknown,” CLM Webinar Series, Jersey City, NJ, March 28, 2019
- "Tangible Strategies for Combatting Unconscious Bias in the Workplace without Risking Backlash,” 3rd Annual Women in Insurance Leadership ExecuSummit, Uncasville, CT, March 6, 2019
- "Insurance Agents – Liability to Insurance Agents/Brokers – Life Agent Twisting Claims," 12th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2018
- “Miscellaneous Professional Liability – Insuring the New and Unknown,” 11th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2017
- “Employment Law Update: Developments in LGBTQ Discrimination Cases,” National Employment Law Defense Counsel Summit, Philadelphia, PA, May 11, 2017
- “Drafting and Enforcing Effective Non-Compete Agreements and Trade Secret Protections,” Target Markets Program Administrators Association Annual Conference, Arlington, VA, April 19, 2016
- “Ethics and E-Discovery,” CLM Presentation, Kansas City, KS, April 13, 2015
- “Securities Update: A Discussion Regarding the New FINRA Suitability Rule, REITS, TICs and Private Placements,” CLE/CE Presentation, New York, NY, March 12, 2013
- “Securities 101: An Introduction to FINRA Arbitrations,” CLE/CE Presentation, New York, NY, October 29, 2013
- Article, 11.18.22
- Article, 3.23.22
- On The Basis of Sex: Supreme Court Holds that Employers Cannot Discriminate Against Employees for Being Homosexual or TransgenderCase Updates, 6.17.20
- “NYC Pay Transparency Law Goes Into Effect May 15, 2022,” WSHB Update, March 23, 2022
- Editor: "Insurance Coverage Issues and Current Trends in Cyber Exposures," Professional Liability Defense Quarterly, Volume 13, Number 2, Second Quarter 2021
- Co-Author: "Are SPACs an Emerging Area of Concern for Professional Liability E&O Exposure for FINRA Brokers and Broker-Dealers?," Professional Liability Defense Quarterly, Volume 13, Number 2, Second Quarter 2021
- "Federal Court Guardrails Covid-19 Paid Leave: Paid Leave Expanded For New York Workers Under the Families First Coronavirus Response Act," WSHB FFRCA Employer Alert, August 26, 2020
- "Leading Out Loud: Cyber, Management, and Professional Liability," CLM Magazine, July 2020
- "How will COVID-19 Impact Insurance Agents/Brokers E&O; Minimizing Exposure During and After the Pandemic," PLUS Journal, Second Quarter 2020
- "New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers 'SWEAT'," WSHB Update, June 17, 2020
- "Litigation Amid the Covid-19 Pandemic: Emerging Trends in Directors and Officers and Securities Litigation," WSHB Covid-19 Resource, May 27, 2020
- "On The Basis of Sex: Supreme Court Holds that Employers Cannot Discriminate Against Employees for Being Homosexual or Transgender," WSHB Case Update, August 1, 2019
- "Under the Radar Emerging Risks," CLM Magazine, May 15, 2019, quoted answering the question: What do you believe are the emerging risks today?
- “Is There a Lawyer in the House? Issues Presented by Non-Lawyer Representatives in FINRA Securities Arbitrations,” CLM Litigation Management Magazine, March 6, 2017
- “Call Me, Maybe: Update Regarding Liability for Debt Collection Phone Calls Under FDCPA,” Professional Liability Advocate, February 17, 2015
- “Loophole Leaves Insurers Powerless Against Fraud,” New York Law Journal, December 1, 2014
- “A Check in the Win Column for Broker-Dealers,” Professional Liability Advocate, September 16, 2014
- “Eastern District of New York Adopts ‘Express Train’ Discovery Schedule to Ensure Expeditious Resolution of Sandy-Related Coverage Suits,” Client Alert, April 24, 2014
- “Temporary Insurance Applications and Agreements: The Impact of Material Misrepresentations in Life Insurance Applications in Coverage,” FC&S Legal, December 10, 2013
- Professional Liability Defense Federation (PLDF), Elected as a Member of the Board of Directors
- Professional Liability Defense Federation (PLDF), Chair of the Insurance Agent / Broker Claims Committee
- Claims Litigation Management (CLM), Member of Board of Directors of Professional, D&O, and Cyber Liability Committee
- Breadwinners Foundation, Board of Directors
- New York State Bar Association
- DRI: The Voice of the Defense Bar
- Professional Liability Underwriting Society (PLUS)
- Claims and Litigation Management Alliance (CLM)