November 30, 2010
Thank you for the opportunity to comment on the proposed rule change. As an attorney who has represented parties in securities arbitration for many years, I believe that fundamental fairness mandates that the rule change be adopted as soon as possible.
In order for the process to be perceived as fair by customers, it simply is critical that the mandatory non-public (i.e., industry) arbitrator be eliminated. Imagine 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.