Litigation

By: Daniel Hanifin

What does an arbitration clause mean to me?

Most, if not all, customer account forms used by brokerage houses contain arbitration clauses.   An arbitration clause is a commonly used clause in a contract that requires the parties to resolve their disputes through an arbitration process. Although such a clause may or may not specify that arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution outside of the courts, and is therefore considered a kind of forum selection clause.  The vast majority of the clauses state that arbitration must take place before either the New York Stock Exchange (NYSE) or the National Association of Securities Dealers (NASD).  However, in 2007, the NASD and the NYSE combined their dispute resolution divisions into one body, known as the Financial Industry Regulatory Authority (FINRA).   (www.finra.org)

Arbitration before a FINRA panel is similar to going to court, but it is usually faster, cheaper and less complex.  FINRA has established discovery procedures that assist in simplifying the process.  In arbitration, the parties present their dispute through witness testimony and documentary evidence much as they would in court.   However, rather than a judge presiding over the proceedings, a panel of three arbitrators, two public and one industry, preside over the hearing.  The arbitrators study the evidence and render a decision just like a judge.  These decisions are binding upon the parties except in very limited circumstances where a court may overturn the decision; however, a reversal of an arbitration decision is rare.

This is part of an ongoing series of postings related to claims related to your investment accounts.  For more information on securities arbitration and claims against your investment professionals please contact Daniel M. Hanifin.

BY: Daniel Hanifin

The fact that your investment has decreased in value or that you, like millions of others, have lost money does not automatically mean that your broker or brokerage firm has engaged in actionable misconduct. Almost all investments involve risk and there is no bailout when you lose money in risk appropriate investments. However, if your investments have decreased in value as a result of action or inaction by your broker, you may have a valid claim. Below are several common claims against investment professionals/brokerage houses:

1. Recommending unsuitable securities: Claims for suitability arise when an investor is advised to purchase or sell a security that is unsuitable given – an investor’s age, financial situation, investment objective and investment experience – the investor’s profile. Claims for suitability can be based upon a recommendation of a certain type of security, a certain class of securities, the amount of an investment or the frequency of transactions.

2. Misrepresentation/Omission: These claims arise when an investment professional misrepresents or fails to disclose material facts concerning an investment, including but not limited to, a failure to disclose: a) the risks associated with an investment; b) the fees associated with a particular investment; and c) company financials, such as bond ratings.

3. Churning: A claim for churning arises when an investment professional engages in excessive trading within an investor’s account in order to generate commissions.

4. Failure to Supervise: Brokerage houses have an affirmative duty to supervise the activities of their brokers and a failure to do so may be the basis of a claim.

This is the first in a series regarding investor rights and securities litigation. For more information on the legal rights and responsibilities related to your investment accounts, contact Daniel Hanifin.