August 29, 2006
I submit this comment concerning this latest Amendment/change to the proposed dispositive motion rule.
As I have stated in previous comments of the proposed Rule, the proposed rule is an improvement over the rules now in effect.
The inclusion of the words "discouraged" and "extraordinary circumstances" are appropriate plain-language guidance to the arbitrators. No further guidance from NASD as to what these terms mean is necessary. Indeed, providing examples will only detract from, and perhaps cause the narrative examples will overtake the simplicity and directness of this plain language.
Of course, it must be recalled that the arbitration system is not like the court system. The arbitration system is largely ill-equipped to address legalistic motions that deny aggrieved parties a full opportunity to be heard. Dismissal motions in court are based purely on law judges who grant such motions must provide decisions containing both reasons and legal precedent and then those decisions are subject to appellate review by our most senior and accomlished jurists. Arbitrators, though, are not judges they are not trained as are judges they do not give detailed reasons and cite legal precedent in their decisions and there is no appellate review of those decisions.
If NASD is to add any more narrative explanation for "extraordinary circumstances", it ought to provide these observations.
The NASD ought also to make clear that this new Rule is not designed to impose court-style pleading standards on investors in arbitration.
Thank you for this opportunity to comment. A copy of my CV is attached.(Attached File #1: nyse200456-1a.pdf)