From: Sam Brannan
To Whom It May Concern:
I also request that the NASD's request for "Accelerated Approval" of the above-referenced rule filing and publish the NASD's proposal for public comment be rejected. The proposal contains significant matters of public concern and should not be adopted without opportunity for public comment.
Dispositive motions are inappropriate in the current system of mandatory arbitration and should be prohibited, at least for non-industry disputes. Many NASD arbitrators are non-attorneys. These arbitrators lack the background to understand and competently rule upon complex legal issues that are often embedded in these motions. Most recently, we have seen motions to dismiss based upon such complex issues as the viability of holder claims and loss causation. Consequently, the risk dismissals based upon erroneous legal conclusions is considerable.
Since there is no appeals process to correct errors of law (a motion to vacate does not provide such a process because the grounds for vacatur of an arbitration award are far more limited than the grounds for overturning a court decision), public customers who are victims of wrongdoing, but whose claims have been erroneously dismissed, may be left without any remedy at all.
The purpose of NASD arbitration is to provide a fair and expeditious process to resolve disputes. The risk of erroneous dismissals by legally untrained arbitrators without any appeals process is clearly unfair. This unfairness is even more pronounced because public customers are denied the right to sue in court (where motions are ruled upon by judges) and are required to submit claims to arbitration as a condition to opening their accounts.