September 12, 2006
Dear Commissioners:
I write to comment on the meaning of the term "extraordinary circumstances" as proposed in new Rule 12504 of the NASD Code of Arbitration Procedure. I believe "extraordinary circumstances" should be in the rule and I think it is helpful to define its meaning in the narrative portion of the Code rewrite. I agree with the NASD's explanation of this term in Amendment no. 5, with the important exception of one example that should be stricken, which is "the running of an applicable statute of repose". This explanation opens the door to other technical procedural motions to dismiss such as statutes of limitations and others that defeat the purpose of the clear meaning of the term extraordinary circumstances.
I would not object to substituting the 6 year eligibility rule (10304 or its new equivalent) in place of "the running of an applicable statute of repose" in the narrative of what defines extraordinary circumstances, but no more. Thus, I propose that extraordinary circumstances be defined as: "...for example, accord and satisfaction, arbitration and award, or settlement and release, the panel may consider these defenses to be extraordinary circumstances."
Thank you for the opportunity to comment on this very important issue.
Randall R. Heiner, Esq.