April 11, 2006
The purpose of this letter is to provide the Securities and Exchange Commission with comments on the above referenced proposed rule change which was originally filed by the New York Stock Exchange, Inc. on February 17, 2005.
As an attorney whose practice is exclusively devoted to the representation of public investors in their disputes with the securities industry, I agree with the NYSE that the abuse of discovery obligations by member organizations in arbitration proceedings must be addressed.
I would, accordingly, submit that the intent of the proposed rule change would advance both the interests of the public investor and the efficiency of the arbitration process.
However, I believe that the text in the proposed rule change should be revised so as to incorporate the following comments:
1. Rather than stating that it would constitute conduct which is inconsistent with just and equitable principles of trade if a member, member organization, allied member, approved person, registered or non-registered employee of a member or member organization should fail to appear or produce any document in their possession or control "as directed pursuant to provisions of the NYSE Arbitration Rules," I would propose that the words "as directed pursuant to" be replaced by the words "in accordance with the" provisions of the NYSE Arbitration Rules.
The potential problem with the word "directed" is that it could potentially imply and/or could be construed as requiring the prior direction and/or order of an arbitration panel before a violation of Rule 476(a)(6) would occur.
2. I believe that there should be additional language inserted in the proposed rule which would specifically state and/or clarify that it would not affect the power of an arbitration panel to impose the sanctions which are set forth in NYSE Arbitration Rules 604 and/or 621.
The potential problem with the presently proposed language is that it could potentially create a conflict in the minds of arbitrators as to their power to impose sanctions in the event that there is a violation as to the discovery provisions set forth in NYSE Arbitration Rule 619(a) through (g).
Thankyou for the opportunity to submit my comments on the proposed rule change.