From: J. Boyd Page and Samuel T. Brannan
Affiliation: Page Perry, LLC
July 14, 2005
To the SEC
Re: SR-NASD-2003-1589 (proposed NASD Code of Arbitration Procedure revision)
We write to comment on the NASDıs proposed Code Revision. We certainly strongly oppose Rule 12504 providing for dispositive motions. The NASD and the SIA continually assert that SRO-sponsored arbitration provides a faster and more efficient method for customers to resolve disputes. The increasingly common practice by respondents, however, of filing motions to dismiss belies that assertion by increasing the cost of arbitration and the likelihood of appeal.
On March 17, 2005, Marc E. Lackritz, President of the Securities Industry Association, testified before the Committee on Financial Services of the U.S. House of Representatives. Mr. Lackritz told Congress that SRO-sponsored arbitration is very different from court litigation, because:
"In addition to the efficiency and fairness benefits described above, parties who utilize arbitration are far more likely to have their claims aired in a full hearing, and decided on the merits, rather than won or lost on technicalities. This is in sharp contrast to court proceedings, where a significant percentage of claims are dismissed on pre-hearing motions to dismiss or for summary judgment. Many of these dismissals are on what may be described as technical, or procedural, grounds.
In contrast, arbitration allows for a simple statement of claim, an answer, presumptive discovery, and then a full merits hearing."
Motions to Dismiss have no place in arbitration, as the President of the SIA would no doubt agree. It is not enough to ³discourage² them, as the proposed Code Revision does. Motions to Dismiss are unfair to small investors who have been forced into the arbitration arena by mandatory pre-dispute arbitration agreements. They should be abolished.
In addition, proposed Rule 12602 should be amended to provide that expert witnesses should be permitted to attend the hearing in accordance with the Arbitrators Manual.
Proposed Rule 12607 should be changed to allow claimants to reserve any or all of their closing arguments for rebuttal, consistent with long-standing practice.
The Filing Fees (Proposed Rules 12900, 12902) should be borne by the Industry. It is grossly unfair to require a customer who has been financially devastated to have to spend $1,125 or more just to have his or her case heard in a forum imposed by the industry.
Thank you for this opportunity to comment. Please refer to the PIABA proposal for additional comments.
PAGE PERRY, LLC
J. Boyd Page
Samuel T. Brannan