September 21, 2005
Jonathan G. Katz, Secretary
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-9303
Re: File No. SR-NYSE-2005-43, Public Arbitrator Definition
Dear Mr. Katz:
I am a securities attorney who has had the honor and privilege to represent public customers in the NASD arbitration forum. Ihave engaged in this area of practice for the past fifteen years. I write to comment on the NYSE rule filing regarding Rule 607, which defines the term public arbitrator. Of course, the same points apply equally
to the NASDs proposed definition of the term, which also allows professionals whose firms derive less than 10 of their revenue from member firms to serve as public arbitrators.
The proposed rule simply does not go far enough in protecting investorsfrom biased panels. Under the proposed rule, in addition to having an avowed member of the securities industry sitting on a panel, one or even two more
arbitrators can be professionals who represent the securities industry, including as legal advocates in claims brought by investors.
In my years of pracicing in this arena, I have been and continue to be, generally an advocate of the process. It is difficult enough to convince one industry member that a colleague in the industry acted improperly. I cannot envision how I can tell a client that the majority, or
even the entirety, of a panel that includes arbitrators who are members of and advocates for the industry, can judge his case fairly. This is increasingly problematic as to the many cases which involve systemic problems e.g.,conflicted analysts, B-share abuse, variable annuity sales to IRAs within the securities industry. How can an arbitrator whose firms clients includes brokerages being sued for these same practices bring real objectivity to the
case before him or her? How comfortable would the SEC enforcement staff be in bringing an analyst case against Merrill Lynch in front of a tribunal whosemembers include lawyers whose firms represent Salomon Smith Barney?
For the foregoing reasons, the definition of public arbitrator should be modified to exclude from the term any attorney, accountant or other professional whose firm has represented industry members within the prior five
years. More to the point, why is it even necessary at all to include a so-called non-public arbitrator on this supposedly unbiased and neutral tribubal at all???
Jonathan W. Evans, Esq.
Jonathan W. Evans & Associates
12711 Ventura Blvd., Suite 440
Studio City, California 91604