September 15, 2005
Jonathan G. Katz, Secretary
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-9303
Re: File No. SR-NASD-2005-094
“Public Arbitrator” Definition
Dear Mr. Katz:
My practice is comprised almost exclusively of representing investors who are victims of the brokerage industry, and I have been doing this kind of work for almost fourteen years. The SROs are proposing a change in the definition of what a public arbitrator is, and it is on that which I would like to comment.
In my experience, the industry arbitrator can be the most detrimental aspect of the arbitration process for my clients. Based on my experience, I believe that the mandatory appointment of an industry arbitrator should be eliminated. Industry panelists are too often beholden to their industry, no matter how meritorious a claim is. Even where damages are awarded, I think the industry arbitrator wrongly influences the panel to reduce the damages based on wrong-headed theories of mitigation and ratification, among others. Industry panelists may have pressure from their firms to not come down too hard on the industry, so that there will be a quid pro quo when that panelist's firm is named in a subsequent arbitration.
Compounding this problem is the fact that lawyers whose practice involves representing and/or defending industry members are permitted to serve on panels, as are in-house brokerage lawyers. All these individuals have a vested interest in keeping monetary customer awards low - lest they send a message of condemnation to the very industry members who they seek to service and impress for their livelihoods.
At a minimum, the NASD should take all these defense lawyers out of the arbitrator pool. Since the usual rationale for the industry arbitrator is his/her functional expertise, it makes no sense to have defense lawyers on arbitration panels. And of course, in no event should industry defense lawyers be included in the definition of a public arbitrator. Thank you for your time and attention. I am happy to answer any questions the Commission has.
Jeffrey A. Feldman