A(i).1. Should certain categories of claims (e.g., of a certain complexity or value) or customer dispute types (e.g., those involving institutional customers or holders of institutional accounts) be subject to different requirements under FINRA rules?
a. Should certain categories of claims or customer dispute types be subject to different procedural requirements under FINRA rules? What customer protection and fairness considerations should be evaluated?
b. Should certain categories of claims or customer disputes be considered by panels with additional qualifications or experience? If so, what types of claims and what qualifications should be required?
XX> Perhaps if a party requests that a case be designated "complex" or in cases in which there is a good faith claim of damages above a certain level (perhaps $5 million), then the case could be sent to a panel in which each arbitrator has been on at least three (3) panels for cases that went to a final award after a hearing. This could be automatic if unopposed, or subject to a determination by a special panel or by staff if opposed.
XX> Perhaps if certain criteria are met, then depositions could be presumptively allowed.
A(i).2. Should FINRA no longer allow certain categories of claims or customer dispute types in its arbitration forum?
XX> I see no reason to exclude any categories of cases from FINRA arbitration.
A(i).3. Should FINRA allow parties to contractually agree in advance to opt out of FINRA arbitration and arbitrate disputes in alternative fora for certain types of claims or customers?
XX> If all parties to a claim have affirmatively agreed, I see no reason to compel those parties to use FINRA arbitration. I would include litigation as an option that the parties can choose.
A(i).4. Should customers be allowed to unilaterally choose after a dispute arises between arbitration and litigation even if they signed a forum selection clause?
XX> It seems counter to the whole notion of arbitration as a creature of contract if one side can simply ignore the contract.
A(i).5. Do participants still experience FINRA arbitration as less expensive and faster than litigation? What changes should FINRA consider to make arbitration more efficient and cost-effective?
XX> If more cases can be resolved on the papers, with arbitrators able to get supplementary evidence on request, then for some cases this might improve efficiency.,
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Will Murphy Comment On Regulatory Notice 26-06
A. Forum Selection
A(i) Customer Disputes
A(i).1. Should certain categories of claims (e.g., of a certain complexity or value) or customer dispute types (e.g., those involving institutional customers or holders of institutional accounts) be subject to different requirements under FINRA rules?
a. Should certain categories of claims or customer dispute types be subject to different procedural requirements under FINRA rules? What customer protection and fairness considerations should be evaluated?
b. Should certain categories of claims or customer disputes be considered by panels with additional qualifications or experience? If so, what types of claims and what qualifications should be required?
XX> Perhaps if a party requests that a case be designated "complex" or in cases in which there is a good faith claim of damages above a certain level (perhaps $5 million), then the case could be sent to a panel in which each arbitrator has been on at least three (3) panels for cases that went to a final award after a hearing. This could be automatic if unopposed, or subject to a determination by a special panel or by staff if opposed.
XX> Perhaps if certain criteria are met, then depositions could be presumptively allowed.
A(i).2. Should FINRA no longer allow certain categories of claims or customer dispute types in its arbitration forum?
XX> I see no reason to exclude any categories of cases from FINRA arbitration.
A(i).3. Should FINRA allow parties to contractually agree in advance to opt out of FINRA arbitration and arbitrate disputes in alternative fora for certain types of claims or customers?
XX> If all parties to a claim have affirmatively agreed, I see no reason to compel those parties to use FINRA arbitration. I would include litigation as an option that the parties can choose.
A(i).4. Should customers be allowed to unilaterally choose after a dispute arises between arbitration and litigation even if they signed a forum selection clause?
XX> It seems counter to the whole notion of arbitration as a creature of contract if one side can simply ignore the contract.
A(i).5. Do participants still experience FINRA arbitration as less expensive and faster than litigation? What changes should FINRA consider to make arbitration more efficient and cost-effective?
XX> If more cases can be resolved on the papers, with arbitrators able to get supplementary evidence on request, then for some cases this might improve efficiency.,