April 17, 2007
I write on behalf of the Public Investors Arbitration Bar Association (PIABA) in response to the Commissions request for comments regarding the proposed amendments to New York Stock Exchange, Inc. (NYSE) Rule 619, contained at SEC Release No. 34-55594.
As you may be aware, PIABA is an international bar association which, since it was established in 1990, has pursued a mission statement that promotes the interests of the public investor in all securities and commodities arbitration forums.
While we welcome the intent and procedural predicates which led to the initial presentment of this rule proposal, there are three technical comments and, most importantly, one substantive comment that the Commission should consider before approving the same.
In subsection (2) of proposed rule 619, it currently states that a party who opposes a motion and draft subpoena shall file objections within 10 days of service of the motion. It does not, however, specify whether the time period will be calculated in either calendar or business days. In order to eliminate any confusion and/or interpretational differences, I believe that it should be specified that it will be calendar days which will govern the applicable time period.
In subsection (2) of proposed rule 619, it currently further states that a party who requests the issuance of a subpoena has the right to submit a response to any objections that may be filed to the same within 5 days of receipt of the objection. It does not, however, specify whether the time period will be calculated in either calendar or business days. In order to eliminate any confusion and/or interpretational differences, I believe that it should be specified that it will be calendar days which will govern the applicable time period.
In subsection (4) of proposed rule 619, it currently states that a party who is requested to provide copies of documents received in response to a subpoena shall do so within 10 days of receipt of the request. It does not, however, specify whether the time period will be calculated in either calendar or business days. In order to eliminate any confusion and/or interpretational differences, I believe that it should be specified that it will be calendar days which will govern the applicable time period.
Finally, and of greatest importance, in subsection (4) of proposed rule 619, it currently also states that a party who requests to be provided with copies of documents received in response to a subpoena shall be responsible for the reasonable costs associated with the production of the copies.
This attempted cost-shifting language is not only directly contrary to the intent and language in every other provision in the NYSEs Arbitration Rules, but it will significantly increase the expenses that are associated with the initiation and prosecution of every arbitration proceeding.
The result of permitting this specific language to remain in the final rule, that may be approved by the Commission, will be to potentially eliminate the financial ability of many public investors to either commence an arbitration proceeding and/or to effectively vindicate their claims. Moreover, this potential damage will be further magnified for the numerous public investors who elect to prosecute their claims on a pro-se basis.
Quite simply, there is no reason for the inclusion of this proposed language in what is otherwise an excellent rule proposal and, accordingly, it should be removed.
Thank you for the opportunity to provide you with our comments and for your consideration of the same.