From: Jonathan W. Evans, Esq.
Nancy M. Morris, Secretary
Dear Ms. Morris:
I have had the pleasure and privilege of representing investors in NASD sponsored securities arbitration matters for the past 15 years. I dedicate myself to assisting investors to recover losses as a result of broker misconduct. I take my work seriously and I don't undertake representation unless I am convinced that a genuine wrong has been committed.
I am writing to express my opposition to proposed rule 12504 because dispositive motions have no place in these arbitration proceedings. The motions are used exclusively by respondent broker-dealers and serve to have a chilling effect on investors' ability to have all of the evidence judged and the credibility and veracity of witnesses weighed. Investors already have been forced to relinquish their constitutional right to a jury trial at the time they open accounts and sign mandatory predispute arbitration agreements. When broker-dealer respondents file dispositive motions to dismiss, claimant customers are forced to respond as if in a court of law, but without the privileges and rights which they were earlier forced to waive!!
Dispositive motions are filed routinely in most cases I see. The prospect of them being erroneously granted is great because the panel of 3 arbitrators often do not include lawyers, let alone judicial officers, and legal arguments, often loosely constructed with irrelevent but self-serving out of context legal "authority" sway unknowing though well intentioned arbitrators.
The bottom line is that customer claimants are entitled to their "day in court", even if that means their day before an industry mandated, industry sponsored arbitration in an industry forum. Claimants have a right to a full hearing, and should not have their rights terminated in an abbreviated telephonic conference where the arbitrators cannot weigh their perception of the parties and their analysis of ALL of the evidence.
Thank you for your consideration.
Jonathan W. Evans
Jonathan W. Evans, Esq.