April 9, 2008
As an attorney representing parties, both Claimants and Respondents, in arbitration for almost 23 years, I'm in favor of the proposed rule changes. As I read the changes, eligibility motions are still viable and serve a legitimate function in the arbitral process: weeding out stale claims.
Substantive motions to dismiss would be discouraged and this is a good thing. I've seen many substantive motions that were made for the illegitimate purposes, inter alia, (1) of forcing the Claimant to flesh out their case on the record thus giving the moving party an unfair discovery opportunity (2) pre-conditioning the panel to the facts and evidence before the hearing and (3) waging an economic war of attrition (Respondents are typically in an economically superior position than the Claimant, and simply have more money to throw at lawyers to wear down their adversary).
I would note that I was the attorney for the Respondent in PaineWebber v. Bybyk, a case involving an eligibilty motion that went up to the Second Circuit Court of Appeals, as well as numerous state court decisions, indeed many of those brought on behalf of the broker-dealer community. Based on my familiarity with this area, I think the proposed rule changes are consistent with and in furtherance with the FAA.