July 14, 2005
Dear Decision Maker:
As a practicing Florida attorney representing both public investors and associated members in disputes against broker-dealers in NASD securities arbitrations, I am in overall agreement with PIABAs comment letter submitted to Jonathan G. Katz, Secretary of the Securities and Exchange Commission which relates to the proposed NASD Code Rewrite.
Protection of public investors in the arbitration process, especially with regard to the discovery process, is vital. One type of potential discovery abuse is delay both for the sake of delay, and for the purpose of delay without good cause for delay. Significantly, there is a serious possibility that frivolous invocation of Rules 12506b and 12507a will occur with dizzying frequency since these rules, as currently written, would permit the delay in the production of documents if: 1 the documents are identified, and 2 any reason is given for the delay. The way that these rules are currently written provides for no fear of sanction for the bad-faith invocation of the delay provisions. This is manifestly unfair and must be dealt with by, at a minimum, incorporating some mechanism for sanctions for bad-faith invocation of the aforementioned rules.
Most certainly, any proposed rule increasing the time to produce documents from 30 days to 60 days after the answer is due serves to defeat at least one stated purpose of arbitration, that is, the speedy determination of investment-related disputes. Thus, the standard should remain at 30 days given the expedited time frame of NASD arbitrations, and the fact that the information and documents flowing from responses to these requests are the primary source of hearing evidence. In fact, in close to six years of practice in the relevant area, I have come across only one law firm representing Respondents that has actually produced or attempted to produce responsive documents within the current 30 day time period.
Increasing the time frame will not help the problem; it will merely authorize further delay. No public investor would benefit by any rule which would sanction delay without justifiable reason for delay being first required and given. No pubic investor would benefit by any rule which would permit delay without the fear of penalty/sanction.
Spiro T. Komninos, Esquire