From: Paul R. Meyer
I don't know if this is a proper way to "vote" on this issue, but I would encourage the elimination of so-called "dispositive motions." They can seldom substitute for a hearing and frequently may cost the parties nearly as much (in legal fees) as the hearing itself. It is a rare case where a dismissal on such a motion is justified. I have been an arbitrator in many cases for over forty years.
Paul R. Meyer
PAUL R. MEYER
On Jul 21, 2006, at 12:29 PM, NASD Dispute Resolution wrote:
On July 21, 2006, NASD Dispute Resolution filed with the Securities and Exchange Commission (SEC) a sixth amendment to its Code of Arbitration Procedure Revision rule filings. The sixth amendment seeks SEC permission to remove Rules 12504 and 13504, "Motions to Decide Claims Before a Hearing on the Merits" (the "dispositive motions" rule), and the accompanying descriptive material from the customer and industry Code Revision rule filings. We asked the SEC to approve the Code Revision rule filings at its earliest opportunity.
Simultaneously, we filed the dispositive motions rules in a separate rule filing. We took this action to allow our constituents more time to comment on the dispositive motions rule, in light of the large number of comments sent to the SEC about language in the narrative portion of the rule filing giving examples of "extraordinary circumstances" under which it might be permissible to dismiss a claim after a hearing on the motion. The new rule filing does not contain these examples; the SEC will solicit comment on what the appropriate guidance to arbitrators should be.
Except as provided in Rules 10304 and 10305 (Time Limitation Upon Submission and Dismissal of Proceedings), the current NASD Code of Arbitration Procedure is silent regarding motions to dismiss. As noted in our online arbitrator training materials, many of these motions may require examination of the facts or briefing on relevant law. If the facts or law are unclear, the panel may defer ruling on any dispositive motion until additional information is provided by the parties.
We expect the SEC to solicit public comment on the separate rule filing concerning motions to dismiss. In the interim and pending approval, arbitrators may wish to be judicious in reviewing motions to dismiss.