September 20, 2005
September 19, 2005
Jonathan G. Katz, Secretary
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-9303
Re: File No. SR-NYSE-2005-43, Public Arbitrator Definition
Dear Mr. Katz:
I have had the privilege of representing public investors before the NASD and other regulatory organizations for over twelve years. I estimate that I have personally represented over 300 investors in securities arbitration proceedings. Without fail, at some time during the course of my representation, the investor will comment that they perceive the dispute forum as nothing more that the brokerage industry policing itself, or stated in a different way - the fox guarding the hen house.
For many investors, especially senior citizens, this perception is overwhelming as they deal with the loss of their entire life savings. I am certain many investors with valid claims against their brokers or brokerage houses decide not to pursue such a claim because they believe the arbitration proceeding is nothing more than an organized process to limit the brokerages losses, while purporting to be a fair and equitable forum.
On many occasions, I have had conversations with investors that include the analogy that a securities arbitration claim is much like filing a malpractice claim against a doctor or attorney and the patient or client is forced to present his or her case to a jury comprised of one-third doctors or lawyers. Further, the patient or client must be very careful or the jury foreman could be one of the doctors or lawyers. It is hard to adequately describe the despair and dismay many investors experience when this realization takes hold.
Yet faced with realization, many investors have no other choice than to proceed with their claim in a perceived up hill battle. There are many characteristics of the securities arbitration that public investors have difficulty in accepting such as the inability to seek emotional distress damages. However, most investors have the most difficulty with accepting an industry related panelist on their binding arbitration panel.
The aggregate despair and dismay of public investors, combined with the continuous stream of scandalous news accounts coming out of Wall Street, only serves to destroy any remaining credibility that regulatory agencies like yours are in-deed truly interested in protecting the public investor. If the SEC was sincerely concerned about protecting public investors and maintaining a measure of confidence in the public markets, it would eliminate all arbitrators with any connection to the securities industry.
G. Mark Brewer
BREWER CARLSON, LLP