September 20, 2005
I write to comment on Proposed NASD Rule 10308 as well as NYSE Proposed Rule 607 SEC File Number SR-NYSE-2005-43 which seek to redefine the term public arbitrator. Under both proposed Rules, a public arbitrator could be an individual whose firm derives up to 10 of its gross revenues from the securities industry.
I am a partner in a law firm specializing in representing defrauded investors. I have personally witnessed the public investors surprise to learn that they have waived their right to a jury of their peers and are forced into NASD arbitration. The public investor must be able to confidently proceed without concern that a public arbitrator has any incentive to find in favor of the securities industry.
I oppose this proposal. Many investors already believe arbitration panels are stacked against the investor because an industry arbitrator is allowed to serve on the Panel. Investors should not have to fear that they will be unable to obtain a fair hearing because a public arbitrator generates a significant part of his income from the industry. Many times these individuals work for a law firm which advocates the exact type of conduct which the investor is complaining. It is reasonable to conclude that a public lawyer representing the Industry will be inclined to rule in favor of the industry to protect his firms relationship with the industry.
Investors must be assured that the two public arbitrators have no interest or incentive to find in favor of the industry. Under the proposed rule change, a partner in a law firm which regularly represents the industry would be allowed to serve as a public arbitrator. This is not a perceived bias. This is a conflict of interest which cannot be reconciled. Accordingly, we oppose this proposed rule amendment.
Scott Silver, Esq.
Blum & Silver, LLP
12540 W. Atlantic Blvd.
Coral Springs, FL 33071
ph. 954 255-8181
fax 954 255-8175