The Investor Choice Act of 2013 Would Prohibit Stockbroker and Investment Advisory Firms From Using Mandatory Pre-Dispute Arbitration Agreements

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Banks Law Office Describes The Investor Choice Act Of 2013 And Joins NASAA, Consumer Federation of America And Others In Supporting The Investor's Right To Choose Their Forum For Resolving Their Claims

U.S. House of Representatives

The FINRA arbitration process is mostly a fair one for those who understand the process and how to use it.
-Robert Banks

On August 5, 2013, Representative Keith Ellison of Minnesota introduced the Investor Choice Act of 2013 (HR 2998) in the U.S. House of Representatives. If enacted, the bill would prohibit stockbroker and investment advisory firms from using mandatory pre-dispute arbitration agreements thus allowing investors and their attorneys to choose where their claims should be decided.    

The bill recognizes that investor confidence is essential to the health of the securities markets, and that broker-dealers and investment advisors hold powerful advantages over investors. The proposed legislation would make three things unlawful:

1.    It would prohibit broker-dealers and investment advisors from requiring that customers arbitrate their disputes.
2.    The bill would make it unlawful to limit an investor's choice of forum for dispute resolution.
3.    It would prohibit broker-dealers and investment advisors from restricting customer rights to pursue class actions.

As things now stand, anyone who opens an account at virtually every broker-dealer, from Merrill Lynch to Morgan Stanley to Edward Jones to the smallest local brokerage firm, is required to sign an account agreement that includes in small print a provision requiring any disputes to be resolved in arbitration, typically through FINRA's dispute resolution program.

FINRA arbitration has had its share of detractors. Investor attorneys, state regulators and aggrieved investors often complain that the process is weighted in favor of the industry and against investors. They point to the fact that historically investors bringing claims only receive any monetary award about half the time, and that arbitrators are careful not to punish a brokerage firm for bad behavior for fear of never being chosen again to be an arbitrator. Those are valid concerns. However, Robert Banks, a nationally recognized attorney with over 30 years of experience successfully representing investors in court and arbitration, states that, “The FINRA arbitration process can be and often is the best investor choice for those who understand the process and how to use it. For investor disputes, our firm usually prefers FINRA arbitration over other arbitration forums run by the American Arbitration Association, Judicial Arbitration and Mediation Services (JAMS), and regional commercial arbitration programs. In fact, in many of our cases, given the choice between court and FINRA arbitration, we would still advise many of our investor clients to use the FINRA forum." Why? Banks says "It is cost-effective, it is usually faster than court, its rules are generally party-neutral, and we have found most FINRA arbitrators to be conscientious and ethical. However," Mr. Banks continues, “there are those cases which ought to be heard by judge and jury, either because of the size and complexity of the case, the importance of the issues being decided, or the investor's reluctance to have their case decided in a forum operated by the financial services industry.”

The Investor Choice Act of 2013 addresses the issue fairly and simply. It preserves the FINRA arbitration process, which plays an important role for many aggrieved investors. At the same time, it re-establishes the fundamental right of aggrived investors to submit their case to the American judicial system as created by our Constitution and the state and federal legislatures to fairly resolve disputes.

As Banks sees it, "Passage of the Investor Choice Act should be a non-brainer. There is just no credible argument to allow the industry to block the gates of the courthouse to investors who have lost their life savings due to a mistake or misconduct by a financial advisor." Despite Banks's views, however, the bill is given only a 7% chance of making it out of committee. Says Banks, "That says more about the flaws in our democratic process than it does about the wisdom of Representative Ellison's bill."

Banks Law Office joins the North American Securities Administrators Association, the Consumer Federation of America, and a host of other organizations in supporting the Investor Choice Act of 2013.

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