September 20, 2005
September 19, 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 an attorney in St. Louis, Missouri who represents public investors before the NASD and other regulatory organizations. I often have had to try to explain to my clients why the NASD Arbitration Rules specify that at least one of the three arbitrators must be someone affiliated with the securities industry. In my experience, this requirement creates an perception of bias and unfairness with public investors. It is akin to participating in a jury trial when 4 of the 12 jurors have an acknowledged affiliation with the opposing party. What rationale for the presence of an industry arbitrator could possibly offset the obvious perception of bias and unfairness resulting from such a rule?
It is not my intent to question the integrity of any individual industry arbitrator, but rather to state that in my experience, the presence of an industry arbitrator creates a perception of unfairness with those public investors who participate in the arbitration process. Many have told me they feel the deck is stacked against them in that they contractually have no choice but arbitration if they want to pursue their claims and they have no choice but to accept the presence of an industry arbitrator once they do arbitrate their claims. It is not an unreasonable request that there be a fair and impartial forum for investor disputes to be heard and resolved.
The purpose of an regulatory agency such as the SEC is to protect public investors and to seek to maintain a level playing field for all market participants such that the public will have confidence in the securities markets. The elimination of industry arbitrator requirement would be a meaningful and obvious way to advance the noble mission of the SEC.
William B. Langenbacher, Esq.
130 S. Bemiston Ave., #210
Clayton, MO 63105
314 721-1823 - fax