SECURITIES ARBITRATION LAWYER
We specialize in securities arbitration. Here are our most frequently asked questions regarding the arbitration process.
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Arbitration is a method of having a dispute between two or more parties resolved by impartial persons who are knowledgeable in the areas in controversy. Those persons are called arbitrators. Arbitration of broker-dealer disputes has long been used as an alternative to the courts because it is a relatively fast and cost effective means of resolving complicated issues. There are laws governing the conduct of an arbitration proceeding that must be considered by those planning to use arbitration to resolve the dispute. Most importantly is the fact that an arbitration award is final and binding, subject to review by a court only on a very limited basis. Parties should recognize, too, that in choosing arbitration as a means of resolving a dispute they generally give up their right to pursue the matter through the courts.
In considering whether to initiate arbitration it is important to keep in mind that, generally, a public customer has a right to require a broker-dealer to submit to arbitration only those disputes relating to or arising out of the business activities of the broker-dealer.
An additional factor to be noted is that a controversy is not eligible for submission to arbitration if more that six years have elapsed from the date of the event that gives rise to the dispute. The arbitrators also may dismiss a claim barred by shorter applicable state or federal statutes of limitation.
Arbitrators are impartial persons who are knowledgeable in the areas in controversy. Each sponsoring organization such as FINRA (formerly NASD) or NYSE maintains a roster of individuals whose professional qualifications and experience qualify them for service as arbitrators. The arbitrators are not employees of the sponsoring organization and they, not the sponsoring organization, will decide your dispute. The arbitrators do, however, receive an honorarium from the self-regulatory organizations.
The Director of Arbitration will inform the parties of the names and business affiliations of the selected arbitrators, their employment histories as well as any conflict information disclosed pursuant to the Uniform Code of Arbitration.
Some parties may be interested in previous awards issued by prospective arbitrators. Each sponsoring organization has developed procedures to make information available on public customer awards issued since May of 1989.
Once the Statement of Claim has been received the Director of Arbitration will send it to the opposing party (the “Respondent”). Any member of an organization listed in the services directory may be a party in an arbitration proceeding. Similarly, an employee and/or representative of any such member also may be named as a party.
Following the receipt of the Claim the Respondent has 45 calendar days to serve each party with an Answer and an executed Submission Agreement. Respondent’s executed Submission Agreement and Answer shall also be filed with the Director of Arbitration with sufficient additional copies for the arbitrator(s) along with the required deposit.
The Respondent may assert a related counterclaim as part of its Answer, or may file a claim against a third party; that is, a claim against another person who may bear responsibility for any of the alleged damages. Generally, a claim is considered related if it pertains to the customer’s account at the broker-dealer. In support of its defense or counterclaim the Respondent should attach copies of documents and supporting materials to its Answer.
The discovery process is the method by which the parties obtain facts, information and documentation while a case is pending. The information obtained through discovery is used to prepare for the arbitration hearing. The arbitration associations define the information and documents that a party can request by the other party or any third party. In the event any party does not comply fully with discovery requests, counsel is required to meet and confer to resolve any disputes. Failure to resolve at that point results in the dispute being submitted to the arbitration Panel Chairman for resolution during a pre-hearing conference. Discovery is an integral part of the arbitration process and must be completed prior to the arbitration hearing.
At the hearing the parties must present their respective cases by testimony and documentary evidence to the arbitrators. Claimants should carefully document the issues involved and their proof of damages and explain to the arbitrators how much in money damages are being claimed and how they arrived at that figure.
Generally, the following procedures will be observed:
1. The arbitrators and the witnesses will be sworn.
2. The arbitrators may proceed with a case even if a party does not appear and/or answer.
3. Each party will be given an opportunity to make a brief opening statement, that is, a brief outline of the issues involved and what facts that party intends to prove.
4. The Claimant will present facts to the arbitrators including relevant documents and testimony to establish and prove his claim.
5. The Respondent will present its case in the same manner as the Claimant. Witnesses and parties who testify will be sworn and are subject to cross-examination by the opposing side as well as questioning by the arbitrators. The opposing party may object to any evidence prior to its receipt by the arbitrators. Parties should bring sufficient copies of documents for each of the arbitrators, other parties, and the representatives of the sponsoring organization. It is inappropriate to testify when questioning a witness, and a party may object if another party does that. A party may offer an affidavit in lieu of the live testimony of a witness. This may or may not be allowed by the arbitrators. Parties should be prepared to explain why a witness cannot come to the hearing and to explain whether the other party had an opportunity to examine the witness. A party should be prepared to bring the witness if the affidavit is not allowed.
6. Any counterclaim or other matter may be presented in the same way.
7. Parties may present rebuttal evidence if appropriate.
8. Closing statements may be presented and consist generally of final arguments by the parties and brief summations of the testimony and other evidence introduced at the hearing. A party should refer only to evidence already in the record and not use the closing statement as an opportunity to present new evidence.
9. The parties are to leave together at the end of the hearing. The arbitrators will typically render a decision within 30 days.
Most brokerage firms require customers to go to arbitration as part of the signed customer agreement. Rather than a jury of their peers, the customer’s case is decided by an experienced panel of either one or three arbitrators.
Typically, an arbitration case will be resolved faster and more cost effectively than a court case. Another potential advantage is that the rule of equity (fairness) rather than the rule of law applies in arbitration. The arbitrators are also not constrained by the formal rules of evidence and are permitted to hear testimony and review evidence which might otherwise not be allowed in court.