September 18, 2005
Jonathan G. Katz, Secretary
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-9303
Re: File No. SR-NASD-2005-094
“Public Arbitrator” Definition
Dear Mr. Katz:
I am writing to comment on the proposed changes to the NASD Code of Arbitration Procedure regarding the definition of a public arbitrator. I am a practicing attorney in McLean, Virginia and the bulk of my practice consists of representing individuals in NASD arbitrations against Broker-Dealers and Registered Representatives.
I fully support further restrictions of the definition of “public” arbitrators to exclude those with any industry ties and to provide investors with as unbiased a panel as possible. However, the SRO’s requirement of inclusion of a non-public (i.e. industry) member on all panels creates a hurdle which all investors must overcome in every case simply to get to a level playing field.
I would like to express my continuing opposition to the mandatory inclusion of an industry arbitrator on all panels. Through mandatory arbitration, individual investors are required to give up their right to a jury of their peers, and the replacement is a panel which includes a member of the industry opposing the individual investor’s claim. The built-in bias with such an industry arbitrator is fundamentally unfair to the individual investor. While the alleged purpose of the industry arbitrator is to include an “expert” on the panel, this can also result in an individual with a built-in bias unduly influencing the other public arbitrators who defer to the industry arbitrator on issues of standards in the industry. Furthermore, an “expert” on the panel is unnecessary in most cases where each side calls an expert witness to explain their position.
I thank you for your time and consideration of these comments.
Very truly yours,
W. Scott Greco
GRECO & GRECO, P.C.