The Report of the Independent Review of FINRA's Dispute Resolution Services – Arbitrator Selection Process

The Audit Committee of the FINRA Board of Governors engaged Lowenstein Sandler LLP to conduct an independent review in connection with a Fulton County, Georgia Superior Court decision vacating an arbitration award in favor of respondent Wells Fargo Clearing Services, LLC. The Court of Appeals of Georgia reversed the Fulton County, Georgia Superior Court decision finding no evidence of an agreement between Wells Fargo and FINRA. Furthermore, the Court of Appeals of Georgia found nothing that indicated Wells Fargo manipulated the arbitrator pool in the subject arbitration.

FINRA published the report of the independent counsel, Lowenstein Sandler LLP, which found no evidence of an improper agreement to remove certain arbitrators from arbitration cases. The report also stated that FINRA personnel generally adhered to policies and procedures and that their actions were intended to be fair and reasonable at each step of the relevant arbitration.

Download the Report (PDF - 569 KB)

Additionally, the independent counsel made recommendations to provide greater transparency to the arbitrator selection process. FINRA will implement all of the recommendations.

Status Report on Lowenstein Sandler LLP Recommendations

Status	Recommendation
1a Complete Implemented on Nov. 14, 2022 1b Complete Implemented on Nov. 17, 2022 1c Complete Implemented on Oct. 15, 2022 1d Complete Implemented on Dec. 6, 2022 1e Complete Implemented on Nov. 28, 2022	Recommendation 1 Update the DRS Procedures Manual (“PM”) to include a Code of Neutrality to codify the standards that DRS personnel are expected to maintain in their interactions with DRS participants and execution of their job duties. Update the PM to clarify the job title responsible for each of the procedures identified in the PM. Update the PM to clarify the duties and responsibilities of DRS managers and supervisors to ensure that the PM is being followed, including the types of audits and reviews that should be completed and how often. Update the PM to clearly identify the job title or, if it is the Director, his or her designee, that has authority to provide final approval when a decision is required. Update the PM to clarify the information, including the expected level of specificity, that should be entered into the Mediation and Arbitration Tracking and Retrieval Interactive Case System (“MATRICS”) when required.
In progress	Recommendation 2 Implement ongoing mandatory training for DRS personnel regarding the PM and interacting with DRS participants.
In progress	Recommendation 3 Amend Rule 12400 to specifically state that prior to sending the arbitrator list to the parties, DRS shall conduct a manual review for conflicts of interest.
In progress	Recommendation 4 Adopt a procedure whereby future changes to FINRA Rules, interpretations, and guidance in the PM are timely and uniformly reflected in publicly available documents.
5a Complete Implemented on Sept. 1, 2022 5b In progress	Recommendation 5 Establish a policy whereby DRS will provide a written explanation every time a challenge, or a party’s request to remove an arbitrator, is decided.¹ Add new language to the Code of Arbitration Procedure (“Code”) making clear that DRS will provide a written explanation every time a challenge, or a party’s request to remove an arbitrator, is decided.
In progress	Recommendation 6 Conduct an external procedural review of the Neutral List Selection System (“NLSS”) to determine if FINRA’s current technology is still the most effective means in creating random, computer-generated arbitrator lists for the arbitrator participants.
Complete Effective September 15, 2022	Recommendation 7 Amend FINRA Rules to refer to MATRICS instead of NLSS. On September 15, 2022, FINRA filed an immediately effective rule filing with the SEC changing the reference in the Codes from "NLSS" to "List Selection Algorithm."

Additional Steps Taken by FINRA Dispute Resolution Services

DRS plans to further emphasize in the Code that a challenge for cause can be made to arbitrators on lists.

1 The independent counsel recommended that DRS consider amending its policies to require a written explanation whenever a challenge is granted or denied, if a written explanation is requested by either party. DRS will be expanding this recommendation and will provide a written explanation every time a challenge is decided regardless of whether a party makes the request.