December 2, 2010
I am an attorney who, for the past twenty-eight years, has represented the public investor in federal and state courts and in arbitration. I am also a FINRA arbitrator. Prior to that, I was an enforcement attorney with the Chicago Board Options Exchange. I am writing to urge the adoption of Rule 2010-053.
There is a real and true perception among many attorneys and most public investors that Wall Street run arbitration is unfair to the public. Removing the industry arbitrator from the panel may help ease this perception of unfairness.
The feeling many have is that the industry arbitrator is a biased defender of the industry. I believe this to be true in many cases. As an arbitrator I heard one industry arbitrator say here is how I judge these cases, everyone knows you can lose money in the market, now prove to me how it was you (claimant) didnt know. Another industry arbitrator told me all they (claimants) really want is to be heard, its not about the money, they just want to yell at someone. So I listen to them complain. Thats all the award they need. These attitudes are not anomalies.
I believe the influence industry arbitrators have on the other panel members has raised the standard of proof required for a public investor to prevail to almost insurmountable levels. Further, when the public does prevail, often the industry arbitrator works to reduce the damages awarded to the investor. To make matters worse, whether by accident or design, I see the same arbitrator names appear repeatedly on the arbitrator selection lists. I know the pool of arbitrators is larger than what is given.
While it is a good next step in making securities industry run arbitration fair, it is not the best next step. The best way to ensure fairness to the public is to subject the forum to the forces of the free market. The public must not be forced to submit to Wall Streets courtroom. The securities industrys monopoly on justice must end. Mandatory arbitration must be abolished and choice returned to the public.
If securities industry run arbitration is the most fair and economical way to resolve investor-securities industry disputes people will flock to use it. Clearly, most people would choose a court of law with a jury of their peers as their forum of choice. If the forum needs improvement, the free market will drive that improvement. Wall Street is the champion of the free market system. I would think they would be the last to support a monopoly. Of course, this monopoly supports them.