July 25, 2007
As a securities arbitration practitioner and former New York State Assistant Attorney General in the Investor Protection Unit I submit this letter related to the proposed new rule aimed at tightening the public arbitrator pool in NASD arbitrations.
At the present time when there is a mandatory industry arbitrator on every panel, it is essential that the status of a public arbitrator actually be public and unassociated with the securities industry in any financial manner whatsoever. Therefore there should be a zero tolerance test for arbitrators whose firms or themselves have received any compensation from the industry in the recent past. At this time where the rules limit the ability of participants to strike arbitrators off the rosters and provide multiple Respondents with, in essence is a veto over any arbitrator as each represented Respondent receives four strikes per list, it is essential that the pool of public arbitrators not consist of industry supported professionals. At the same time, the NASD does not screen or police such revenue rules and thus such is left to the good faith of arbitrators in confirming compliance with such revenue rules. It is difficult even for those arbitrators who in good faith wish to comply, to ascertain compliance as most law/accounting firms do not maintain such revenue figures distinguishing industry related revenues, let alone on an ongoing basis, as is needed to assure compliance. Further, the NASD does not require its arbitrators to respond to questions submitted by the parties related to such revenues when parties seek to simply confirm compliance. At the same time the NASD also refuses to grant causal challenges related to an arbitrators refusal to respond to such classification inquires as some purported public arbitrators do. As a result, the investor is given at least the appearance of actually being adjudicated by more than one industry arbitrator often times acting as the Chair determining discovery issues which directly impact the outcome of hearings. Unfortunately, the new rule does not address such serious concerns which will continue.
In short while the new proposal is a start, the same concerns remain with regard to actual application of such rule or any rule other than a zero tolerance test which arbitrators can understand and participants can to some degree verify, unlike the proposed and current arbitrary revenue cut-off rules. Therefore, as the current new code has drastically altered and limited the ability of investors to strike arbitrators from lists and have now made it twice as likely that attorneys appear on such lists due to their being included in both the Chair qualified list and the second public arbitrator slot list, unlike non-attorneys, it is essential that the SEC take steps to make sure that the public rolls or NASD arbitrators are in fact public. Having a zero tolerance test for industry related revenues and requiring the granting of causal challenges when an arbitrator refuses to respond to inquiries directly related to classification would substantially assist in providing much need credibility to this forum. We understand that the NASD has stated in the past that such zero tolerance test would deplete the arbitrator rolls. If anything, such concern demonstrates the true extent of the problem. If this is true, then the NASD should expend further efforts at recruiting truly public arbitrators, as investors are entitled to have their cases adjudicated by at least two truly public arbitrators and if the NASD cannot provide such a panel then alternative forums should be made available to investors to have their claims heard.
Very truly yours,
Stuart D. Meissner Esq.
Stuart D. Meissner LLC
1350 Broadway, Suite 1510
New York, NY 10018