September 28, 2006
I write as both an NASD and NYSE arbitrator and as a lawyer who regularly represents claimants to express my concern re: the proposed Rule as to Dispositive Motions.
While the Rule does not in my view require amendments to its text, it should indeed include its cautionary language that the application of the Rule is "discouraged" and that dismissal of claims should occur only in "extraordinary circumstances." (The term "seldom warranted" might be added for emphasis).
The Rule as written should make clear that Arbitrators should consider in every instance where a party invokes this Rule, that (1) its application is seldom warranted and (2) all presumptions are properly to be deemed against the application of the Rule. Dismissal of a party's claims without a full and final evidentiary hearing on the merits of those claims is in all but the most extreme cases contrary to the intent of these Rules. Arbitrators should ordinarily conduct a full evidentiary hearing concerning the merits of a party's claim, and that hearing should include -- and the Arbitrators should duly consider -- all relevant and probative matters as to the party's claims.
The inclusion of this language should help to preclude improvident application of the Rule such as would result in inequitable and unjust dismissals of meritorious claims.
Thank you very much for your consideration of my comments.