March 26, 2008
This letter is submitted to the Securities and Exchange Commission with comments on the above referenced proposed rule change filed by the Financial Industry Regulatory Authority, Inc. (FINRA) on February 7, 2008.
I have been practicing securities litigation for over 20 years, and have represented hundreds of investors in disputes with the securities industry, both in arbitration, and in court cases. I am current member of the Board of Directors of the Public Investors Arbitration Bar Association.
It is my opinion that the proposed rule change, as written, should not be approved. Therefor, I request that the Commission not approve the proposed rule change.
As written, the proposed rule would permit parties to an arbitration proceeding to make submissions to the arbitration panel after the issuance of the award, for three limited reasons, at least one of which is very troubling.
While well intentioned, the rule as written would open up a pandora's box of issues and problems. One of the reasons allows a submission for "ministerial matters" without clearly defining any true limitation. It is our experience that anytime there is an ambiguity over a rule, that rule gets abused to the detriment of the investor. It is my belief that ambiguities in the proposed rule will cause it to be abused.
If a post submission rule is needed for the few times that a situation arises to correct an error in math, for example, the rule should clearly so state, and not leave any ambiguity where the rule could be misused to delay the payment of a final award.
Moreover, if any post submission rule is to be passed, the rule should state that any party who submits a motion post award that does not clearly meet the requirements of the rule, should be monetarily sanctioned for doing so, to prevent frivolous filings.
In sum, while a post submission rule to correct a clerical mistake or a mathematical mistake might be appropriate, the present rule leaves open too many ambiguities that deem it unworthy of being approved.
Therefor, I request that the commission reject the proposed rule.