April 10, 2008
As a lawyer who has prosecuted and defended FINRA arbitrations for more than 15 years, and a FINRA arbitrator, I write in support of the proposed amendments. Prehearing motions to dismiss and other dispositive motions have no place in arbitration. It has been my experience that respondents use a motion to dismiss – even though such a motion presently is not authorized by any rule – to try to get claims dismissed before untrained arbitrators in situations in which they would never be successful before an experienced judge. The amendments will slow such practice and that is a plus.
The amendments do have defects that should be corrected. The proposed rules authorization of motions to dismiss in certain situations unreasonably permits such motions without providing any real standards, and for that reason, will lead to other abuses. Except for situations in which claims previously have been released, the other grounds on which such motions are authorized by the amendment are inappropriate for summary determination in arbitration. Indeed, such situations would not by the subject of motions to dismiss in court as a general matter. As arbitration has no formal pleading requirements, a true motion to dismiss that would meet the requirements of court procedure cannot be granted in arbitration.
For the most part, the motions filed under this amendment will be motions for summary judgment. Summary judgment motions are the subject of extensive court rules and a large body of case law in every jurisdiction – except FINRA. FINRA arbitrators are not trained to deal with such motions and the amendments do not provide the standards by which such motions will be judged. As a result, respondents will use the grounds on which motions to dismiss are permitted to foist upon arbitrators and claimants motions that would never be granted under court rules.
Overall, the rule is an improvement, but its defects should be remedied.