July 13, 2005
Re: SEC Release No. 34-51856;
File No. SR-NASD 2003-158
Arbitration Rule Changes
Dear Mr. Katz:
Thank you for the opportunity to comment on the proposed rule changes to the NASD arbitration process.
I would like to highlight 5 areas of concern. I do not make any observations on other rules which I believe to be of less significance--but not unimportant.
1. Proposed Rule 12504. Dispositive motions. This rule is unacceptable in arbitration. If the NASD begins to introduce court procedures into arbitration than the purpose of arbitration is gone and customers should be given the opportunity to take their disputes to court. Court has appellate procedures which arbitration does not. Also, court has trained judges--arbitration does not.
2. Proposed Rule 12506. Document Production. Industry litigants now try to evade, stonewall, and avoid production of standard documents. Seldom are sanctions applied to this common practice. There seems to be a hesitancy by panel chairs to award this necessary sanction so they appear neutral. The rule should incorporate guidance for application of sanctions.
3. Proposed Rule 12514. 20 day exchange. The current rules provide a definition of documents that need disclosure. These include defense documents and witnesses. The current practice should be continued.
4. Proposed Rule 12602. Attendance at Hearings. Experts are traditionally permitted attendance at arbitrations and court proceedings. There attendance should be included in this rule.
5. Proposed Rule 12607. Order of Presentation. The current rule provides the claimant with an alternative to reserve their total closing remarks until the after the respondents have completed their closing. This practice should continue.
6. I support those views expressed by PIABA by President Rosemary J. Shockman with letter of July 13, 2005.
Thank you for the opportunity to express my views on the above topics.
Very Truly Yours,
Gail E. Boliver
Boliver Law Firm
2414 S. 2d. St.
Marshalltown, IA. 50158