The document discusses FINRA arbitration and reasoned awards. It notes that FINRA does not have an appeals process and parties must petition courts to vacate arbitration awards. The author believes FINRA should implement an internal appeals process. Requesting reasoned awards is also discussed. The author argues that FINRA rules should allow reasoned awards if only one party requests one. Awards should also explain damages methodologies to increase transparency.
This document provides an overview of key legal issues relating to assignment, delegation, and choice of law provisions in commercial contracts. It discusses the definition of assignment and requirements for a valid assignment. As a general rule, contract rights are freely assignable unless expressly prohibited by the contract or by law. The document outlines exceptions where assignments may not be allowed and discusses how parties can include provisions in their contracts to prohibit or limit assignments. It also briefly touches on choice of law provisions and their importance in commercial contracts.
Small claims manual Indiana Superior Ct,pammydixon
This document provides information about small claims court procedures in Indiana. It defines key terms, outlines filing procedures, statutes of limitations, parties that can be sued, locations for filing, representation, discovery processes, trials, judgments and collections. The document is intended to help individuals understand how to prepare and present a case in small claims court without an attorney.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
WPC Personal Injury Lawyer
127 Westmore Dr Unit 114, Room E,
Etobicoke, ON M9V 3Y6
(800) 299-0336
http://www.wpclaw.ca/Etobicoke.html
Our Etobicoke personal injury lawyers have a proven track record and have recovered substantial amounts of compensation for victims of Motor Vehicle Accidents, Pedestrian Accidents, Motorcycle Accidents, Public Transportation Accidents, Slip and Fall Accidents, Product Liability, Dog Bites, and Long Term Disability Claims. Etobicoke personal injury lawyers regularly win cases involving Traumatic Brain Injuries, Spinal Cord Injuries, Orthopaedic Injuries and injuries resulting in Psychological trauma as well as Chronic Pain.
This document discusses alternate dispute resolution (ADR) options like mediation and arbitration that can be pursued before, during, or instead of litigation. It explains the purposes of voluntary ADR, which include finding a safe way to discuss settlement, obtaining an objective viewpoint, and avoiding the costs of litigation. It also discusses risks and benefits of binding vs. non-binding ADR options and tips for selecting mediators/arbitrators and preparing for ADR processes. Sample contract clauses for arbitration and dispute resolution within an organization are also provided.
A critical study on sureties ; courts competent to make order ; appeal and re...AMU
This document discusses several key topics:
1. It defines sureties and guarantors in legal contracts.
2. It examines courts that are competent to make orders, including ensuring testators are mentally competent when writing wills.
3. It outlines the processes of appeal and revision to higher courts to challenge lower court decisions.
This document provides an overview of key legal issues relating to assignment, delegation, and choice of law provisions in commercial contracts. It discusses the definition of assignment and requirements for a valid assignment. As a general rule, contract rights are freely assignable unless expressly prohibited by the contract or by law. The document outlines exceptions where assignments may not be allowed and discusses how parties can include provisions in their contracts to prohibit or limit assignments. It also briefly touches on choice of law provisions and their importance in commercial contracts.
Small claims manual Indiana Superior Ct,pammydixon
This document provides information about small claims court procedures in Indiana. It defines key terms, outlines filing procedures, statutes of limitations, parties that can be sued, locations for filing, representation, discovery processes, trials, judgments and collections. The document is intended to help individuals understand how to prepare and present a case in small claims court without an attorney.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
WPC Personal Injury Lawyer
127 Westmore Dr Unit 114, Room E,
Etobicoke, ON M9V 3Y6
(800) 299-0336
http://www.wpclaw.ca/Etobicoke.html
Our Etobicoke personal injury lawyers have a proven track record and have recovered substantial amounts of compensation for victims of Motor Vehicle Accidents, Pedestrian Accidents, Motorcycle Accidents, Public Transportation Accidents, Slip and Fall Accidents, Product Liability, Dog Bites, and Long Term Disability Claims. Etobicoke personal injury lawyers regularly win cases involving Traumatic Brain Injuries, Spinal Cord Injuries, Orthopaedic Injuries and injuries resulting in Psychological trauma as well as Chronic Pain.
This document discusses alternate dispute resolution (ADR) options like mediation and arbitration that can be pursued before, during, or instead of litigation. It explains the purposes of voluntary ADR, which include finding a safe way to discuss settlement, obtaining an objective viewpoint, and avoiding the costs of litigation. It also discusses risks and benefits of binding vs. non-binding ADR options and tips for selecting mediators/arbitrators and preparing for ADR processes. Sample contract clauses for arbitration and dispute resolution within an organization are also provided.
A critical study on sureties ; courts competent to make order ; appeal and re...AMU
This document discusses several key topics:
1. It defines sureties and guarantors in legal contracts.
2. It examines courts that are competent to make orders, including ensuring testators are mentally competent when writing wills.
3. It outlines the processes of appeal and revision to higher courts to challenge lower court decisions.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
This newsletter article summarizes two main topics:
1) It discusses a new option for investors to resolve disputes with registered investment advisors (RIAs) through voluntary FINRA arbitration rather than litigation. Arbitration is typically less expensive but provides limited discovery compared to court. Lawyers must consider these factors when deciding the best forum.
2) It provides tips for firms on conducting a compliance project during the typically quieter summer market period. Suggestions include evaluating the firm's compliance program, prioritizing projects that increase efficiencies, and selecting one or two meaningful projects to focus on rather than avoiding all projects.
Piddington CPD - Mediation - 9 November 2016 FinalAaron McDonald
This document summarizes key points from a mediation masterclass discussing when to mediate and how to prepare for mediation.
The first point made is that mediating early in a case has advantages, as even if a case doesn't settle at the first mediation, it allows for an assessment of further steps needed to improve the chances of settlement later. Subsequent sections discuss ensuring the right people attend mediation, such as those with authority to settle; providing documents to the mediator in advance; discussing the case merits and costs with the client in advance; and considering alternatives to settlement like BATNA and WATNA. Finally, the document emphasizes that preparing for mediation is as important as preparing for trial.
Arbitration in Insurance Coverage Disputes: Pluses and MinusesNationalUnderwriter
The document analyzes the perceived advantages and disadvantages of arbitration in insurance coverage disputes. Some key advantages of arbitration include finality due to limited appeals, enforceability of decisions internationally, flexibility in procedures, and neutrality of venue. However, arbitration can also limit legal protections for the weaker party, decrease precedent from favorable rulings, and eliminate principles such as construing ambiguity against the insurer. While arbitration may be faster and cheaper, these benefits are limited in complex cases. Policyholders should consider negotiating arbitration provisions or avoiding policies with mandatory arbitration clauses.
This episode will cover the arbitration process beginning with how to prepare and file claims, and review thoughts on picking an arbitrator (or arbitrators). From there we will cover preparing for the preliminary conference with the arbitrator. Understanding the Order that will flow from the preliminary conference and knowing what to ask for or have considered. We will review some thoughts on discovery requests and motion practice as well as types of awards as well as a few other miscellaneous matters that may be covered during the preliminary conference.
Part of the webinar series: ALTERNATIVE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
The three-steps guide for successful litigation procedures. Information about third-party litigation funding included. Worthwhile literature provided by Redress Solutions, London, UK.
The document discusses whether attorney's fees can be recovered in litigation. It states that in Florida, attorney's fees can only be recovered if provided for by contract or statute. For example, in a real estate contract or under the construction lien statute. It also notes that even if attorney's fees are available, the party must still prove the fees were reasonable and incurred on the significant issues in the case. Finally, it mentions that to collect fees, a motion must be filed within 30 days of judgment.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
NEWBIE LITIGATOR SCHOOL- PART II 2022 - ADR & Settlement Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART II 2022
See more at https://www.financialpoise.com/webinars/
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
The document discusses issues related to bad faith claims in insurance coverage. It covers identifying bad faith torts and damages, negotiation and settlement techniques, current legislation impacting insurance defense, litigating insurance claims, and avoiding bad faith claims. The topics are presented in sections with questions and answers to follow each section.
1) Contacting and compensating former employees can present legal and ethical issues for attorneys unless they are careful. In movies, former employees conveniently provide key evidence, but in reality attorneys must work to locate and convince them to cooperate.
2) Class action lawsuits are intended to enable individuals with small claims to collectively pursue litigation but often result in large payouts to attorneys while providing little compensation to class members. Studies show that in many cases where small cash amounts are awarded to large consumer classes, only a small percentage of class members actually receive settlement funds.
3) Reforms have been proposed to address issues like attorneys bringing class action suits primarily for their own financial gain while providing little benefit to class members. Suggest
This document provides guidance on preparing for and participating in mediation to resolve legal disputes. It outlines key steps like analyzing the strengths and weaknesses of one's case, understanding the client's interests and alternatives to settlement, researching the mediator, and preparing a mediation statement covering the factual and legal issues. The document stresses communicating openly with the client, considering the full costs of resolving or not resolving the dispute, and getting any settlement agreement in writing.
1. The document discusses the rules and procedures for intercompany arbitration through Arbitration Forums regarding workers' compensation subrogation claims.
2. Key details include that arbitration is available for claims up to $250,000, parties must be signatories to the arbitration rules, and decisions are final and binding except appeals can be made for claims over $100,000.
3. Carriers can only submit claims through intercompany arbitration if the applicable jurisdiction recognizes the carrier's independent right of recovery for reimbursement of workers' compensation benefits paid.
This newsletter provides summaries of recent reinsurance cases:
1) The US Supreme Court clarified that arbitrators have broad authority to interpret contracts and their decisions should not be overturned even if their interpretation is incorrect, as long as they construed the contract.
2) A California court ordered parties to complete their arbitrator selection process and let the panel decide issues of consolidation and contractual provisions, rather than the court making those decisions.
3) A Connecticut court compelled arbitration in a fronting dispute, finding the reinsurer agreed to arbitrate based on references to underlying reinsurance agreements in an assumption agreement.
The newsletter also provides brief summaries of several other reinsurance court cases.
ALTERNATIVE DISPUTE RESOLUTION 2022_ Handling the ArbitrationFinancial Poise
The final episode will go through presenting your case and claims to the arbitrator or panel, including how to handle discovery demands and discovery disputes. When to decide if you really should make a motion and what motions are viable or make sense. Whether objections during the hearing are appropriate, various methods of testimony and the use of expert witnesses. How to prepare pre-trial statements, exhibit lists and witnesses for the arbitration. We will also cover the post-arbitration submissions and awards.
Part of the webinar series: ALTERNATE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
This document provides an overview of the New Jersey Supreme Court Committee on Character and its role in determining candidates' fitness to practice law. It discusses:
1) The Committee's mandate to evaluate candidates' character and fitness based on their personal history and reputation, and to certify or deny certification of their fitness to the Supreme Court.
2) The traits the Committee focuses on - honesty, truthfulness, trustworthiness, and professional commitment to justice.
3) The investigation process, which includes a detailed candidate statement and potential further inquiry into certain conduct like nondisclosure, academic dishonesty, or unlawful acts.
4) The assurance of confidentiality is limited and records could potentially be released in
This document summarizes information related to resolving liens from the Pennsylvania Department of Public Welfare (DPW). It discusses DPW's responsibilities to provide notice when a claim is beginning and being settled. It provides details on what to include in notice letters to DPW. It also discusses strategies for disputing medical expenses claimed by DPW, such as only including related treatment in settlement demands. Ethics rules on expediting litigation and client confidentiality are reviewed. Options for special needs trusts are presented for clients requiring long-term care.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
This newsletter article summarizes two main topics:
1) It discusses a new option for investors to resolve disputes with registered investment advisors (RIAs) through voluntary FINRA arbitration rather than litigation. Arbitration is typically less expensive but provides limited discovery compared to court. Lawyers must consider these factors when deciding the best forum.
2) It provides tips for firms on conducting a compliance project during the typically quieter summer market period. Suggestions include evaluating the firm's compliance program, prioritizing projects that increase efficiencies, and selecting one or two meaningful projects to focus on rather than avoiding all projects.
Piddington CPD - Mediation - 9 November 2016 FinalAaron McDonald
This document summarizes key points from a mediation masterclass discussing when to mediate and how to prepare for mediation.
The first point made is that mediating early in a case has advantages, as even if a case doesn't settle at the first mediation, it allows for an assessment of further steps needed to improve the chances of settlement later. Subsequent sections discuss ensuring the right people attend mediation, such as those with authority to settle; providing documents to the mediator in advance; discussing the case merits and costs with the client in advance; and considering alternatives to settlement like BATNA and WATNA. Finally, the document emphasizes that preparing for mediation is as important as preparing for trial.
Arbitration in Insurance Coverage Disputes: Pluses and MinusesNationalUnderwriter
The document analyzes the perceived advantages and disadvantages of arbitration in insurance coverage disputes. Some key advantages of arbitration include finality due to limited appeals, enforceability of decisions internationally, flexibility in procedures, and neutrality of venue. However, arbitration can also limit legal protections for the weaker party, decrease precedent from favorable rulings, and eliminate principles such as construing ambiguity against the insurer. While arbitration may be faster and cheaper, these benefits are limited in complex cases. Policyholders should consider negotiating arbitration provisions or avoiding policies with mandatory arbitration clauses.
This episode will cover the arbitration process beginning with how to prepare and file claims, and review thoughts on picking an arbitrator (or arbitrators). From there we will cover preparing for the preliminary conference with the arbitrator. Understanding the Order that will flow from the preliminary conference and knowing what to ask for or have considered. We will review some thoughts on discovery requests and motion practice as well as types of awards as well as a few other miscellaneous matters that may be covered during the preliminary conference.
Part of the webinar series: ALTERNATIVE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
The three-steps guide for successful litigation procedures. Information about third-party litigation funding included. Worthwhile literature provided by Redress Solutions, London, UK.
The document discusses whether attorney's fees can be recovered in litigation. It states that in Florida, attorney's fees can only be recovered if provided for by contract or statute. For example, in a real estate contract or under the construction lien statute. It also notes that even if attorney's fees are available, the party must still prove the fees were reasonable and incurred on the significant issues in the case. Finally, it mentions that to collect fees, a motion must be filed within 30 days of judgment.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
NEWBIE LITIGATOR SCHOOL- PART II 2022 - ADR & Settlement Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART II 2022
See more at https://www.financialpoise.com/webinars/
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
The document discusses issues related to bad faith claims in insurance coverage. It covers identifying bad faith torts and damages, negotiation and settlement techniques, current legislation impacting insurance defense, litigating insurance claims, and avoiding bad faith claims. The topics are presented in sections with questions and answers to follow each section.
1) Contacting and compensating former employees can present legal and ethical issues for attorneys unless they are careful. In movies, former employees conveniently provide key evidence, but in reality attorneys must work to locate and convince them to cooperate.
2) Class action lawsuits are intended to enable individuals with small claims to collectively pursue litigation but often result in large payouts to attorneys while providing little compensation to class members. Studies show that in many cases where small cash amounts are awarded to large consumer classes, only a small percentage of class members actually receive settlement funds.
3) Reforms have been proposed to address issues like attorneys bringing class action suits primarily for their own financial gain while providing little benefit to class members. Suggest
This document provides guidance on preparing for and participating in mediation to resolve legal disputes. It outlines key steps like analyzing the strengths and weaknesses of one's case, understanding the client's interests and alternatives to settlement, researching the mediator, and preparing a mediation statement covering the factual and legal issues. The document stresses communicating openly with the client, considering the full costs of resolving or not resolving the dispute, and getting any settlement agreement in writing.
1. The document discusses the rules and procedures for intercompany arbitration through Arbitration Forums regarding workers' compensation subrogation claims.
2. Key details include that arbitration is available for claims up to $250,000, parties must be signatories to the arbitration rules, and decisions are final and binding except appeals can be made for claims over $100,000.
3. Carriers can only submit claims through intercompany arbitration if the applicable jurisdiction recognizes the carrier's independent right of recovery for reimbursement of workers' compensation benefits paid.
This newsletter provides summaries of recent reinsurance cases:
1) The US Supreme Court clarified that arbitrators have broad authority to interpret contracts and their decisions should not be overturned even if their interpretation is incorrect, as long as they construed the contract.
2) A California court ordered parties to complete their arbitrator selection process and let the panel decide issues of consolidation and contractual provisions, rather than the court making those decisions.
3) A Connecticut court compelled arbitration in a fronting dispute, finding the reinsurer agreed to arbitrate based on references to underlying reinsurance agreements in an assumption agreement.
The newsletter also provides brief summaries of several other reinsurance court cases.
ALTERNATIVE DISPUTE RESOLUTION 2022_ Handling the ArbitrationFinancial Poise
The final episode will go through presenting your case and claims to the arbitrator or panel, including how to handle discovery demands and discovery disputes. When to decide if you really should make a motion and what motions are viable or make sense. Whether objections during the hearing are appropriate, various methods of testimony and the use of expert witnesses. How to prepare pre-trial statements, exhibit lists and witnesses for the arbitration. We will also cover the post-arbitration submissions and awards.
Part of the webinar series: ALTERNATE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
This document provides an overview of the New Jersey Supreme Court Committee on Character and its role in determining candidates' fitness to practice law. It discusses:
1) The Committee's mandate to evaluate candidates' character and fitness based on their personal history and reputation, and to certify or deny certification of their fitness to the Supreme Court.
2) The traits the Committee focuses on - honesty, truthfulness, trustworthiness, and professional commitment to justice.
3) The investigation process, which includes a detailed candidate statement and potential further inquiry into certain conduct like nondisclosure, academic dishonesty, or unlawful acts.
4) The assurance of confidentiality is limited and records could potentially be released in
This document summarizes information related to resolving liens from the Pennsylvania Department of Public Welfare (DPW). It discusses DPW's responsibilities to provide notice when a claim is beginning and being settled. It provides details on what to include in notice letters to DPW. It also discusses strategies for disputing medical expenses claimed by DPW, such as only including related treatment in settlement demands. Ethics rules on expediting litigation and client confidentiality are reviewed. Options for special needs trusts are presented for clients requiring long-term care.
1. 1
John J. Duval, Sr. /Arbitration Expert - Mediator
Litigation consultant / Suitability Testimony
4 Creek Lane
Manchester, Maine 04351
Office / 207-213-6224
Cell / 917-734-0078
e-mail / joduval@aol
website/ www.johnduval.com
FINRA Arbitration ‘Reasoned Awards’
Issues and Considerations in Deciding Whether or Not to Request One
Many practitioners wrestle with the temptation, when they file FINRA
Statements of Claim, to request a Reasoned or ‘Explained Award.’ From the standpoint
of customer attorneys, a common reason they don’t request one is the fear that it will
unwittingly provide ammunition for a Petition to Vacate a favorable Award by the ‘deep
pocketed’ Respondent brokerage firms. This article explores this issue and offers
guidance and suggestions primarily, for customer attorneys.
But first, it must be stated for those who don’t know, that FINRA has no appeals
process in place. Parties who wish to appeal a FINRA Award and seek to have it
vacated are left to the mercy of the courts, along with significant costs and long time
frames for resolution. This should not be so.
FINRA should have an in-house appeals process to deal with dissatisfied counsels
who want to re-test the merits of their positions. This new process would be far less
expensive than the court petition process, quicker and not loaded with motions and
counter-motions. A FINRA appeals process could be an alternative to the courts and
structured to accommodate the predicted increase in appeals, especially from customer
attorneys. I will leave the detailed mechanics to those far more enlightened about
litigation appeals than myself - as to the make-up, panelists only being lawyers, number
of panelists on the appeals bench. FINRA should have a process that gives parties a
choice: FINRA appeals venue or the courts.
Before we leave this sub-topic of appeals, and for those who don’t know, the
petition to vacate a FINRA Award can generally only prevail if the appellant
successfully argues and proves one of two basic themes: bias on the part of one or more
of the arbitrators or a manifest disregard for the law.1 I am Chair-qualified in FINRA and
1 For an indepth analysis of motions to vacate arbitration Awards, see Securities Arbitration Procedure
Manual (Dec. 2014 Lexis) by David E. Robbins, Chapter 13. www.lexis.com
2. 2
this is what I was taught during my FINRA Chair training. There might be other subsets
of an appeal that could be argued, but the courts have generally held firm that those two
allegations must be proven in order for the vacatur of an Award. And, for those rare
appeals that do prevail in court, the FINRA process then requires an entirely new
arbitration filing, with a new panel, discovery and hearing. This is simply unfair to the
generally under-financed customer and attorney and provides brokerage firm
Respondents with a negotiation advantage in pre-hearing settlement discussions.
From the FINRA Web site regarding appeals, 2 we learn the following:
Under what circumstances can an arbitration award ruling be appealed?
Arbitration is final and binding, subject to review by a court only on a very
limited basis. However, a party may file a motion to vacate the arbitration award
in a federal or state court of competent jurisdiction pursuant to the Federal
Arbitration Act or applicable state statute. There are limited grounds for vacating
an arbitration award, and the motion to vacate must be filed within the time period
specified by the applicable statute.
Now, back to ReasonedAwards, or, as FINRA calls them: ‘Explained Decisions.’
From the FINRA Dispute Resolution Arbitrator’s Guide3:
Explained Decisions
FINRA Rule 12904 provides that parties may require the arbitrators to write an
explained decision. If the parties submit a joint request for an explained decision at least
20 days before the first scheduled hearing date, the chairperson is required to draft an
explained decision and will receive an additional honorarium of $400.
Of course, requiring adversaries to agree to this process means it is rarely required
of Chairs to write such a Award. The more responsible and experienced ones do it
without being asked and without extra compensation.
The explained decision is fact-based, stating the general reason(s) for the panel’s
decision. Arbitrators are not required to include legal authorities or damage calculations..
Absent a joint request from the parties for an explained decision, arbitrators may
still include a written decision to be published within the body of the Award if they
believe that an explanation would benefit the parties. However, if the panel decides on
its own to write an explained decision, or at the request of only one party, then no panel
2 http://www.finra.org/web/groups/arbitrationmediation/@arbmed/@arbtors/documents/arbmed/p009424.pdf
3
http://www.finra.org/web/groups/arbitrationmediation/@arbmed/@arbtors/documents/arbmed/p009424.pdf
3. 3
member will receive an honorarium for writing the decision. That said, few arbitrators
agree to be panelists for the pay, even though it has recently been increased.
Explained Decisions are referenced in another rule:Rule 12514. Again, from the
manual:
(d) Explained Decision Request
At least 20 days before the first scheduled hearing date, all parties must submit to
the panel any joint request for an explained decision under Rule 12904(g).
And, from FINRA Rule 12904:
(g) Explained Decisions
(1) This paragraph (g) applies only when all parties jointly request an explained
decision.
(2) An explained decision is a fact-based award stating the general reason(s) for the
arbitrators' decision. Inclusion of legal authorities and damage calculations is not
required.
(3) Parties must make any request for an explained decision no later than the time
for the prehearing exchange of documents and witness lists under Rule 12514(d).
(4) The chairperson of the panel will be responsible for writing the explained
decision.
(5) The chairperson will receive an additional honorarium of $400 for writing the
explained decision, as required by this paragraph (g). The panel will allocate the
cost of the chairperson's honorarium to the parties as part of the final award.
(6) This paragraph (g) will not apply to simplified cases decided without a hearing
under Rule 12800 or to default cases conducted under Rule 12801.
There are two important aspects to these Rules.
One is that it requires both sides to agree upon a request to receive an Explained
Award from the panel. I think this is wrong and unfair to both sides.
Two, it does not require the panel to explain the rationale for an award involving
monetary damages. I also think this is wrong as damages are the foundation for many
appeals.
So, what’s the problem? In my opinion, there are several dynamics at work and
here they are:
1. Most arbitrators I know, and have served with, have a fear of the their
Awards being overturned by a court. When an Award is appealed, FINRA
can require the Chair to submit an internal report regarding the hearing
4. 4
and to give FINRA the reasons for the panel’s decision. This has happened
to me twice where I was a panelist and the decision was appealed. I then
spent a lot of time with the Chair helping him reconstruct the testimony
and the evidence, as well as our rulings during the hearing, for his report.
He was not paid additional compensation for his internal report; nor was
I. One of appeals was rare in that it was initiated by the customer
Claimants who were unhappy with the amount of the Award.
2. It is my opinion that most Panelists enjoy their panel assignment and try to
be neutral, but want to be chosen again. Given the ‘strike’ mechanisms of
FINRA’s ranking process, I think there is a tendency to not grant
attorney’s fees, award full compensatory damages or award punitive
damages even when appropriate.. The Biblical ‘split the baby’ syndrome
is often employed by panels when it comes to awarding damages. A
panelist who has given punitive damages will predictably be ‘struck’
during rankings by the Respondent’s Counsels. Thus, my suspicion is that
many panelists are sensitive to this ranking system and not only limit
damages but also may be inclined to deny a claim altogether in the hopes
of not being struck in the future. And, on this point, why is it that Panels,
when awarding monetary damages, also order that all hearing expenses be
split between the parties. This doesn’t make sense to me. If Respondents
are at fault, then why should Claimants have to absorb hearing costs in
bringing their action in which a panel agrees they were mistreated? That
has never made sense to me.
3. The very case in which I was a panelist subsequently appealed, noted the
damages as the reason for appeal. The motion to appeal was based on our
‘inadequate’ damages. This is another example why Awards should not
only be explained but also the amount of the damages should be explained
with reasoning and foundations. As an expert witness, I am expected to
provide damage analysis and theories in my testimony. I have testified
over 60 times in FINRA arbitration hearings and have done just that. And,
when damages are awarded in the cases in which I have testified, I am
often dumbfounded as to the methodology (if there was one) how those
monetary Awards were comprised. Even in a jury trial, you are free to ask
jurors after their verdict how they arrived at the damages. And, if an
arbitration panel had to explain their monetary damages, it would be
helpful, in my opinion, for subsequent cases and panels to be aware of
various damage models that were previously used or rejected (even
though, under law, arbitration Awards have no precedential value).
Arbitrators shouldn’t be allowed to hide from their deliberations as to how
they arrived at a damage number.
4. A lot of practitioners representing customer Claimants are fearful that if
they prevail with a large Award, Respondents will most certainly appeal it.
I am not a believer in this fear. First of all, very few Awards are vacated.
Second, yes, the Respondents typically have ‘deeper pockets’ than the
5. 5
Claimants, but I think Claimant’s attorneys overlook the fact that the
Respondents’ attorneys actually file very few appeals as a percentage of
issued Awards. And, in big cases, Claimant’s attorneys should pursue
their cases and introduce facts and evidence with the assumption that if
they prevail, they will be appealed. Several attorneys interviewed in
preparation of this article told me they request reasoned awards in every
case and Respondents object in every case in which the customer prevails.
This is a good example of why FINRA should permit Reasoned Awards if
only one party requests it.
5. Respondent brokerage firms rarely file appeals for small cases. With this
in mind, I suggest Claimant’s Counsels request a reasoned Award in all
small cases. If nothing else, it sends a message to the panel that you
believe your case is solid and you are not afraid of a panel’s reasoning in
deciding an Award, and, for how much, and why. Admittedly, this may be
simplistic, but a message (request for ‘reasoned Award’) is not.
6. What is missing in FINRA Awards is transparency. When judges instruct
juries, there is transparency. When jurors are interviewed after a court
decision, there is transparency. There should be similar transparency in
FINRA Awards. I testified as an expert in a Federal case in New York
where the jury found for the Plaintiff. The Judge overruled the decision,
saying the jury made a math error and an entirely new trial had to take
place. That’s transparency - especially in dealing with damages.
CONCLUSIONS
FINRA rules should be changed to allow reasoned Awards if only one party
requests them. FINRA panels should explain their methodology or reasoning in arriving
at monetary damages. And, lastly, there should be an appeals process within FINRA that
could be an alternative to the courts as a choice.
John J. Duval, Sr. retired from Merrill Lynch where he was a retail broker,a branch and district-level
manager, and subsequently a FINRA arbitrator, NFA arbitrator, mediator, litigation consultant,and expert
witness. He has testified for the SEC, been engaged by the State of Maryland and testified over 60 times in
FINRA arbitrationsfor both sides. His Web site is: www.johnduval.com.His email is: joduval@aol.com