From: Henry Simpson
I respectfully request that in reviewing comments submitted in the captioned matter, the Commission consider that I affirm the comments submitted today by Mr. Leonard Steiner (see below) and wish to adopt them as a supplement to my comments submitted October 2, 2006.
----- Original Message -----
I write in opposition to the proposed rule to permit the filing of motions to dismiss in "extraordinary circumstances."
I fully support the other comments submitted in opposition to the rule based on the fact that motions to dismiss violate claimants' due process rights by denying them hearings on the merits after discovery has been completed. I write to add two additional comments.
First, the rule does not define "extraordinary circumstances." Thus, rather than limiting motion practice it will increase it. Respondents will now be able to claim that the NASD rules specifically authorize motions to dismiss. And, of course, they will argue that any particular motion in question satisfies the undefined "extraordinary circumstances" test, regardless of how frivolous.
Second, the rule is grossly one sided. If respondents can bring motions to dismiss, why cannot claimants bring summary award motions when there are "extraordinary circumstances," such as if the broker has been convicted of a crime or has forged documents etc.? By authorizing motions to dismiss by respondents but not motions for summary award by claimants, the SEC and the NASD will be perceived as being biased in favor of the brokerage industry.
Accordingly, I urge that the SEC issue a bright line rule prohibiting all motions to dismiss (as well as motions for summary award), unless the parties stipulate that a given motion may be heard, or else that the rule provide that both claimants and respondents can bring dispositive motions in "extraordinary circumstances," whatever that means. Thank you.