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Witnesses: Russell Feingold, U.S. Senator; Edward Markey, U.S. Congressman; Isaac Hunt Jr.; Commissioner, U.S. Securities and Exchange Commission; Samuel Estreicher, Prof., NY Univ. School of Law; Cliff Palefsky, Chairman, Securities Industry Arbitration Comm. on behalf of the Nat. Employment Lawyers' Assoc.; Linda Feinberg, Exec. V.P., Dispute Resolution and Chief Hearing Officer, NASD Regulation; Stuart Kaswell, Senior V.P. and General Counsel, Securities Industry Assoc.; Elizabeth Toledo, V.P. Nat. Org. for Women; and Robert Meade, Senior V.P. American Arbitration Assoc. Statements: Judith Appelbaum, Senior Counsel and Dir. of Legal Prog., Nat. Women's Law Center.
This is the first book on a crucial issue in human resource management. In recent years, employers have begun to require, as a condition of employment, that their nonunion employees agree to arbitrate rather than litigate any employment disputes, including claims of discrimination. As the number of employers considering such a requirement soars, so does the fear that compulsory arbitration may eviscerate the statutory rights of employees. Richard A. Bales explains that the advantages of arbitration are clear. Much faster and less expensive than litigation, arbitration provides a forum for the many employees who are shut out of the current litigative system by the cost and by the tremendous backlog of cases. On the other hand, employers could use arbitration abusively. Bales views the current situation as an ongoing experiment. As long as the courts continue to enforce agreements that are fundamentally fair to employees, the experiment will continue. After tracing the history of employment arbitration in the nonunion sector, Bales explains how employment arbitration has actually worked in the securities industry and at Brown & Root, a company with a comprehensive dispute resolution process. He concludes by summarizing the advantages, disadvantages, and policy implications of adopting arbitration as the preeminent method of resolving disputes in the American workforce.
The pervasive use of mandatory pre-dispute arbitration agreements in the securities industry is a relatively new phenomenon. However, research reflects that an overwhelming majority of retail brokerage and investment advisory agreements include language requiring that all disputes between the customer and the broker-dealer/investment adviser be resolved through arbitration - most often with Financial Industry Regulatory Authority (FINRA) Dispute Resolution. Thus, only in rare instances can an investor open either a brokerage or investment advisory account without agreeing to submit to mandatory pre-dispute arbitration. The enclosed article is the first to focus on the fairness of mandatory pre-dispute arbitration agreements through the lens of an investor's options, or lack thereof, for relief once an arbitration award has been granted. The Article begins by discussing the jurisprudence of mandatory pre-dispute arbitration agreements in the securities industry, including the legality of investors waiving their right to file class action lawsuits. The Article then transitions into a discussion of arguments against the use of mandatory pre-dispute arbitration agreements including the Supreme Court invention of a “pro-arbitration” policy and the adhesive nature of brokerage and advisory contracts. The Article then argues that mandatory pre-dispute agreements do not meet investors' “reasonable expectations” and are per se unconscionable, because they require investors to involuntary waive certain Constitutional rights and provide narrow appellate avenues that effectively preclude judicial review of arbitral awards. The Article concludes by providing an example of what a mandatory pre-dispute arbitration agreement would look like if it reflected the current legal regime governing arbitration and provides solutions to policy-makers, the most appropriate of which is to end the use of mandatory pre-dispute arbitration agreements in the securities industry.
This short piece emphasizes what makes consumer and employment arbitration in the securities industry different from consumer and employment arbitration generally. Securities law imposes non-contractual duties to arbitrate on both broker-dealers and securities employees. I believe these laws are bad policy because they restrict contractual freedom. I conclude that securities arbitration should be contractual, like other arbitration.
This manual is acknowledged to be the essential reference in the field of securities arbitration. It systematically describes the issues that arise in a dispute, how to evaluate the merits of a case, & how to prepare & present cases to arbitration panels anywhere in the country. In the Third Edition, David Robbins updates his work to reflect the important new issues governing discovery on the Internet, NASD's new eligibility rule, & its rule on punitive damages.