The SEC recently approved a FINRA proposal that will further restrict who can serve as “public” arbitrators. Under this new formulation, individuals who have worked in the securities industry and lawyers, including those who represent claimants, could not be considered “public” arbitrators for a period of time.
The big change under this new rule, is that any lawyer who has devoted 20% or more of his/her time over the last five years representing claimants would be considered nonpublic instead of public arbitrators. These lawyers can reenter the public arbitrator sphere after a five year cooling off period.
The new rule will also exclude certain professionals from being a public arbitrator. Any attorneys, accountants and other professionals who have worked for financial firms for more than 20 years cannot be a public arbitrator. If they have worked in the industry for less time, they can become a public arbitrator after a five year cooling off period after the cessation of their employment.
This new rule when coupled with the prior rule that allowed a claimant to select an all public panel is seen as another way to level the playing field. I am still firmly of the view, however, that these rule changes will make the use of experts a necessity.
When you had an industry person on the panel, both sides could Use that person as a conduit to explain the nuances of the securities business to the other panelists, many times you could do this without an expert. In other words, an effective presentation could result in the industry person actually acting like an expert for either or both sides.
I believe that this new rule will make arbitration more not less expensive because an expert will be a necessity. The secondary risk is that all public panels with no industry representation will do nothing to level the playing field in arbitration. Instead, inexperienced panels will likely result in bizarre awards and more efforts to challenge those awards. Time will tell . . . .
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