Is the FINRA Proposal for Public Arbitrators a Good Idea?

My initial answer is no. Suzanne Barlyn, a reporter with Dow Jones and the Wall Street Journal, reports that FINRA is planning to make its “pilot” program permanent.

The pilot program provided the opportunity for public investors to have three public arbitrators and no industry-affiliated arbitrators. The results of the pilot program are that 17 of 23 cases resulted in an award to the customer. This is viewed as a 70% “win” rate. I’m not sure this is a statistically significant number when compared with FINRA’s much larger universe of over 4,800 cases heard to completion since January 2005. The win rate over time is less than 50%.

Again, I’m not sure that’s a bad thing. On average, during the same time period, approximately 20% of all filed cases went to hearing. This means that, on average, 80% settled or went away in some fashion. (I think that involuntarily dismissed cases are few and far between.) But this is a big sample, not like looking at 23 cases and declaring a trend.

There could be a number of reasons why the number is higher in the pilot program. Statistical anomalies for one thing. Another could be the types of cases being handled in the pilot program. I also have concerns that a purely public panel may lose the benefit of the knowledge of an industry panelist’s experience.

Vociferous plaintiff’s lawyers and their pals at NASAA say that the process is unfair because of the industry panelist. But how about switching it around? Is the process now fair because one party, the brokerage firm and its broker, will be judged by 3 people with no industry experience. Or does fairness only exist when the process is stripped of any industry insider experience? This makes no sense to me.

Will I choose an all-public panel for cases where I’m representing customers? I don’t know. I’m still not convinced that it helps me. I’m sure someone will be keeping score.

That’s the view of one lawyer from Jupiter, Palm Beach County, Florida. I’m Marc Dobin.

Print Friendly, PDF & Email