July 25, 2007
Comments on NASD Rulemaking
Notice of Filing of Proposed Rule Change to Amend the Definition of Public Arbitrator
(Release No. 34-56039 File No. SR-NASD-2007-021)
The NASD once again proposes the pretense of regulation while retaining the biased system in which customers lose 100% of the time. The NASD's assertion that a defrauded investor who receives an award of 10% of losses is a winner, is nonsense.
The industry arbitrator has three purposes.
(1) (S)he is the broker's advocate in the deliberation after an evidentiary hearing where his or her arguments and (mis)representations can not be refuted by the investor.
(2) (S)he is the informant who advises the NASD of industry friendly arbitrators to be promoted and assigned multiple cases and neutral or investor friendly arbitrators to be denied appointment to panels. Arbitrators are highly sensitive to offending the employee of the industry which hires and pays them.
(3) To a lesser extent, the industry arbitrator works to deny customers access to documents and evidence in discovery and prevent any real sanctions against members who refuse to comply with the rules.
The proposal will provide very little improvement in a terrible forum. The NASD won't enforce the current requirements and can't be expected to enforce new ones. Nor does it even suggest a method of enforcement. In the current system, there is no down side to misrepresenting ones credentials and that will remain the case.
The language is far too cute. Just what are "professional services?" Would that include prostitutes, but not expert witnesses? All income from a brokerage firm and its affiliates should be included. To pick and chose types of income included is to say that the NASD has no intention of insuring neutral arbitrators which is, of course, the case.
Until the SEC removes the mandatory industry representative on panels and rejects mandatory pre-dispute arbitration agreements, NASD Dispute Resolution will remain a bad joke on the investing public. The public customer will continue to lose with the only issue being how badly he or she will lose.