April 9, 2008
I oppose this amendment. Motions to dismiss should never be allowed in FINRA arbitrations--period. A major selling point of arbitration is that it is less expensive, less formal, and takes less time than courthouse litigation. However, let's not forget that the investor did not choose arbitration--he or she was basically forced into it by a non-negotiable pre-dispute arbitration agreement when the investor opened up a brokerage account.
Most of the motions to dismiss which I have seen are nothing more than motions for summary judgment--after limited discovery--including no depositions and no responses under oath. And, the arbitrators are not judges trained in the law--they are mostly lay people who do not have the education or experience to rule on motions to dismiss. And, there is no right of appeal. Wow
This is arbitration not the courthouse. If the investor has a complaint, that claimant should be able to present all of his evidence in support of the claim and let a fair panel of arbitrators decide the claim. Attempting to mix securities arbitration and the formalities of courthouse litigation is extremely dangerous, and, in my opinion, in the long run will be another step leading to the ruination of FINRA arbitration. Sooner or later, if these type rules are enacted, the entire FINRA arbitration process will be seen as a farce and investors and voters will demand change--possibly by allowing investors to choose between court and arbitration.