August 6, 2007
Re: File No. SR-NASD-2007-021
Dear Ms. Morris:
I am a practicing securities attorney and submit these comments on the proposed revisions to Rule 12100(u) of the NASD Code of Arbitration Procedure, the definition of public arbitrator. If the objective is to level the playing field in arbitration, then arbitrators with industry ties cannot sit as public arbitrators without compromising the public's confidence in the arbitration process.
A person who receives any amount of money from the securities industry or related entities should not be classified as a public arbitrator. The only way to be a truly public arbitrator is to have no ties to the securities industry and be completely free from any monetary or other influence from the securities industry. $50,000 is a substantial sum to receive from a party. It shows a significant connection to the securities industry and is inconsistent with fielding independent arbitrators.
The second problem with the proposed definition of public arbitrator is public customers cannot police the $50,000 threshold. Under the current rules, arbitrators can refuse to answer any questions posed by a party making it impossible for customers to obtain reliable information needed to evaluate whether a specific arbitrator satisfies the definition of public arbitrator.
To make matters worse, NASD has no system to verify the accuracy of the monetary representations made by arbitrators and is unable to effectively investigate arbitrator representations. The honor system is inadequate for the purpose of defining a public arbitrator.
The SEC should eliminate the $50,000 exemption from the definition of a public arbitrator to remove the appearance of impropriety.
I also agree with the comments filed by the North American Securities Administrators Association (NASAA) dated August 2, 2007 and the comments of the Public Investors Arbitration Bar Association (PIABA) dated July 23, 2007.
Very truly yours,
Mark A. Tepper, P.A.
3109 Stirling Road, Suite 101
Fort Lauderdale, Florida 33312