September 19, 2005
I am an attorney whos practice is mostly representing public investors in SRO arbitrations. To date, I have represented well over 500 entities.
I applaud the NASD and NYSE in their efforts to re-classify arbitrators as non-public under certain circumstances. While it is a well needed band aid in a shot towards investor confidence, I feel that it does not go far enough.
Specifically, the non-public arbitrator is a thing of the past. An arbitration panel need not contain someone familiar with undustry rules and regulations any more than a jury needs to contain claims adjusters in a court insurance dispute. The need for an industry arbitrator undermines public confidence in the arbitration process more than it helps.
Additionally, the new rules would allow industry defense counsel to sit on arbitration panels as a public arbitrator as long as the firms income doesnt reach a certain percentage of annual billings.
Under that rule, attorneys working in a multi attorney practice group entirely devoted to defending public claims could be classified as public arbitrators if the firms other business is large enough. A ten attorney practice group in a 100 plus law firm could be classified as public.
Quite simply, removing the industry arbitrator would be the best result. The second best result would be to classify all persons with industry ties as non-public.