December 4, 2010
I am a securities attorney with nearly 20 years experience protecting public customers against the overreaching, breaches of professional standards and outright fraud systematically employed by the "Industry" against its customers. I fully support removing the mandatory industry arbitrator from FINRA public customer cases. The inclusion of an industry arbitrator in a proceeding sponsored by, supported by and run by the very industry being sued is not only an "appearance of bias" but is a clear bias in favor of the industry.
Imagine pursuing a claim for professional misconduct against a police officer - say the use of unnecessary force - in a forum called the Professional Organization Of Police Procedures ("POOPP"). If that were not unfair enough on its face, now let's imagine that on every 3-person panel which is the victim's gatekeeper (of evidence), judge and jury, a police officer (and member of POOPP) would hear the evidence to lend his "educated take" to the two non-police, ie, public arbitrators. This police arbitrator may not be from the same precinct as the Respondent officer, but he is a kindred spirit and fellow member of POOPP. Arguing somehow that this industry arbitrator is unbiased and necessary for a fair hearing, is absurd.
The same bias exists in FINRA Arbitration and will continue to exist as long as industry arbitrators are mandatory on panels involving claims of public customers.
There are many fine, honorable and judicious industry arbitrators who serve FINRA, who could continue to serve in public customer cases. However, there are some industry arbitrators that rarely if ever find fault despite sitting on numerous panels.
Just as it should be in arbitration itself, customers' CHOICE should be the standard. If the industry arbitrator (arbitration) is fair and just, he/she could be ranked to serve (the customer would choose arbitration over court).
Again, I support the proposed rule to abolish the mandatory industry arbitrator in FINRA arbitrations involving public customers.