September 19, 2005
I am writing as a lawyer involved in securities litigation in the Seattle area for many years. I have represented brokers, brokerage firms and customers. I also am a NASD and NYSE arbitrator, and an arbitrator for the National Arbitration Forum.
The proposal does little to address the main problem with securities arbitration panels: the mandatory requirement that one arbitrator on each three-member panel be an industry non-public arbitrator. If investors are to have confidence that the arbitration process is fair and impartial, the panel must be comprised of arbitrators that are each neutral, independent, and can truly be objective. Even if an industry arbitrator seeks to be objective, the appearance to the claimant is that the deck has been stacked against him or her.
In some cases, the industry arbitrator is actually an active broker, branch supervisor, or compliance officer who has been the subject of or works for a firm that has been the subject of the very same type of wrongful conduct alleged in the arbitration on which he or she is sitting in judgment. Even the most conscientious of arbitrators would have a difficult time judging solely the case before them in such circumstances.
Finally, with respect to the proposed rule revisions of the definition of public arbitrator, I believe the definition should exclude any person who is an attorney, accountant, or other professional whose firm has represented industry members within the past five years. In light of the numerous securities industry conflict of interest scandals in recent years, the importance of seeking to insure that public arbitrators are not conflicted by industry relationships and do not have the appearance of pro-industry bias cannot be overstated.
Thank you for your consideration.
Al Van Kampen
Al Van Kampen
Rohde & Van Kampen PLLC
1001 Fourth Avenue, Suite 4050
Seattle, Washington 98154