November 25, 2010
I am a partner in the law firm of Aidikoff, Uhl Bakhtiari. For years we have focused our practice on the representation of public customers in securities arbitration claims against the brokerage and financial services industry. I am the former chair of the National Arbitration and Mediation Committee (NAMC) of NASD/FINRA and a current member of the Securities Industry Committee on Arbitration (SICA). I am also a former president of the Public Investors Arbitration Bar Association (PIABA). It is my pleasure to write in support of the proposed Rule Change eliminating the mandatory industry arbitrator from panels involving customer disputes.
In order for the process to be perceived as fair by customers, it is imperative that the mandatory industry panelist be eliminated. Imagine filing a civil lawsuit alleging wrongdoing stemming from a fire casualty loss and learning that one third of the jury must be made up of insurance adjusters, or filing a medical malpractice case against a physician and being told that one third of the jurors will be doctors.
Beyond perception lies the practical reality that the industry panelist can (and often does) provide his/her "expert" opinions during breaks and deliberation to the public members of the panel. These back room views are not subject to cross examination and are potentially prejudicial. Contrast this to the presentation of expert testimony (if needed) by both sides during an open hearing and in the presence of all parties.
Fundamental fairness mandates that the Rule be adopted as soon as possible.