April 8, 2008
I oppose the proposed amendment because dispositive motion practice has no place in an arbitration forum. Unfortunately, incremental changes have occurred over time that have turned what was an informal equitable proceeding into a process with ever more extensive procedural rules, legal briefs, motions, discovery referees, evidentiary debates and the like. This amendment continues the unfortunate trend of turning arbitration into a litigation-like process, though without the protection of being refereed by a judge trained in the law and the rules of evidence, without formal discovery procedures overseen by that judge, and without the right to appeal. Arbitration panels are composed, for the most part, of lay people who have neither the education, training, or expertise to sort through the sometimes highly technical rules and evidentiary issues that would otherwise apply to a motion to dismiss presented in court. By institutionalizing ever more formal procedures that serve as potential stumbling blocks to customer cases, the publics perception of the securities arbitration process as a fair dispute resolution mechanism, about which there is already substantial doubt, will necessarily be further harmed.