United States General Accounting Office Washington, DC 20548 April 11, 2003 The Honorable John D. Dingell Ranking Minority Member Committee on Energy and Commerce House of Representatives The Honorable Edward J. Markey Ranking Minority Member Subcommittee on Telecommunications and the Internet Committee on Energy and Commerce House of Representatives Subject: Follow-up Report on Matters Relating to Securities Arbitration Our June 2000 report Securities Arbitration: Actions Needed to Address Problem of Unpaid Awards revealed that, although investors had won a majority of awards against brokers, a high proportion of those awards had not been paid.1 Nearly all of the unpaid awards involved cases decided in the National Association of Securities Dealer’s (NASD) arbitration program and most involved brokers that had left the securities industry. A year later we reported on limited data suggesting that the rate of unpaid awards had declined.2 However, we noted that given the short time period that the data covered, regulators needed to continue monitoring the payment of the awards to determine whether additional steps need to be taken. Arbitration attorneys and claimants have also expressed concern about the timeliness of NASD’s updating of arbitrator disclosure information, which can be used by the parties in arbitration to judge the competence and objectivity of arbitrators, and with NASD’s ability to remove arbitrators from cases if conflicts arise. In addition, arbitration attorneys also expressed concern about the use of motions to dismiss and motions for summary 3 judgment to terminate NASD-administered arbitration cases. 1 U. S. General Accounting Office, Securities Arbitration: Actions Needed to Address Problem of Unpaid Awards, GAO/GGD-00-115 (Washington, D.C.: Jun. 15, 2000). 2 U. S. General Accounting Office, Evaluation of Steps Taken to Address the Problem of Unpaid Arbitration Awards, GAO-01-654R (Washington, D.C.: Apr. 27, 2001). 3 There are basically two categories of motions for prehearing dismissal. Motions to dismiss are based exclusively on the allegations of the statement of claim. Motions for summary judgment are those that depend, at least in part, on some facts that go beyond those allegations. GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration This report responds to your May 2, 2001, April 15, 2002, and May 21, 2002, requests that we review the status of issues relating to securities arbitration and award payment. Our objectives were to (1) describe NASD’s procedures to ensure the timely updating of disclosure information that arbitrators provide and NASD’s procedures for removing arbitrators from cases, (2) provide information on the use of motions to dismiss and motions for summary judgment in arbitrations, and (3) describe recent changes in the rate of unpaid awards and the number of arbitration claims filed with NASD. Results in Brief NASD has made important changes to its arbitration program procedures, specifically in updating and entering arbitrator disclosure information and removing arbitrators from cases. To better manage the data entry process, in 2001 NASD centralized the arbitrator disclosure information function in its New York City offices. NASD also put a reporting form on line allowing arbitrators to submit new background information such as their education and training, employment, past arbitration experience, finances, and conflicts of interest. Also, in 2004 NASD plans to start a new computer system that would allow arbitrators to update their own records. Since November 2001, when the Securities and Exchange Commission (SEC) reported that NASD and SEC had not received any new complaints about the currency of arbitrator disclosure information, NASD has received one complaint. In addition, NASD has adopted a rule change that gives its Director of Arbitration and the President, NASD Dispute Resolution, indelegable authority to remove an arbitrator from a case after the hearing process has begun based on information not known to the parties when the arbitrator was selected. NASD has used this authority in nine instances since the change became effective in March 2001. Motions to dismiss were filed and granted in NASD-administered arbitration cases. Although NASD does not keep track of such motions, in 2001, for example, we determined that motions to dismiss or motions seeking summary judgment were filed in 55, or about 8 percent, of 719 investor-initiated, NASD-administered cases in which the investors won a monetary award.4 We identified 54 instances in which motions 5 were denied and 28 instances in which the motions were granted. NASD rules do not prohibit either of the parties in arbitration from filing or the arbitrators from granting prehearing motions to dismiss. Further, the courts have consistently recognized the authority of arbitrators in NASD cases to grant prehearing motions to dismiss. Moreover, an NASD official told us that these motions can save time and resources by helping to weed out certain cases that, based on the facts set out in the parties’ 4 Securities arbitration cases are categorized as broker-broker, employee-broker, and customer-broker cases. Because the customers of brokers are generally investors, in this report we refer to the customers as investors. 5 The total number of motions filed exceeded the number of cases because many cases involved multiple respondents and multiple filings of motions. In some instances in which motions to dismiss were granted, awards were still rendered against other parties responding to the claims. Page 2 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration filings, clearly would not satisfy procedural requirements for cases in the arbitration forum. However, a member of the Securities Industry Conference on Arbitration said that such motions ought to be discouraged because discovery and appeal rights in arbitration are limited. In 2001, 236 or about 33 percent of the 719 NASD-administered monetary awards on claims filed by investors were not fully paid, down from 64 percent not fully paid in 1998, as we reported in June 2000. About 55 percent of the $100.2 million NASD arbitrators awarded to investors in 2001 was unpaid, down from 80 percent of the total $161 million awarded to investors in 1998.6 The majority of unpaid awards in both 1998 and 2001 resulted from brokers leaving the securities industry. For example, 192 of the 236 unpaid awards in 2001 involved defunct brokerage firms or individual brokers. Since 1998, NASD has introduced award-monitoring procedures that are designed to encourage payment. NASD also has introduced procedures for investors to avoid the problem of unpaid awards by defunct brokers by giving investors more options for handling claims against defunct brokers. The noted decline in the rate of award nonpayment also might be related to a difference in methodologies used to measure that rate. In 2000, we directly surveyed a sample of investors to determine if awards were paid in 1998, while for this report we used NASD data based on its monitoring of payment for the entire year 2001. The 5,974 arbitration claims that investors filed with NASD in 2002 have increased by 64 percent over the 3,637 claims filed in 2000. We recommend that the President, NASD Dispute Resolution, make available on NASD’s Web site current statistics showing the frequency with which arbitration awards against defunct brokers are not fully paid. Background The securities industry uses arbitration to resolve disputes among industry members, their employees, and individual investors. Arbitration, an alternative to suing in court, uses neutral third parties to resolve differences between parties to a controversy. Cases involving investors, other than relatively small claims, are resolved by a panel of three arbitrators. Two are public arbitrators and one is a nonpublic arbitrator who brings a greater degree of expertise in the workings of the industry. Arbitrators’ decisions are final and can be appealed to the courts only for narrowly-defined reasons such as misconduct, bias, or a manifest disregard of the law on the arbitrators’ part. Arbitration awards are to be paid within 30 days of the date of the award, unless a party seeks a judicial review. SEC oversees the arbitration programs administered by securities industry self-regulatory organizations (SRO) such as NASD. NASD administers the largest SRO arbitration program, for example, its 6 In 2001, $12 million of the unpaid awards were not due because the respondents had requested a hearing, filed for bankruptcy, or filed a motion to vacate. Page 3 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration program accounted for about 90 percent of securities arbitration cases in 2000 and 7 2001. Investors have a right under NASD (and other SRO) rules to require that brokers- dealers and individual brokers arbitrate any disputes they may have. In addition, most broker-dealers require customers, when opening an account, to sign a customer agreement that includes a predispute arbitration clause. If a dispute subsequently arises between the investor and the broker-dealer, the investor can file an arbitration claim with the forum indicated in the predispute agreement and with any SRO of which the broker-dealer is a member. In an investor-initiated arbitration case, the investor files a statement of claim with the designated SRO-sponsored arbitration forum. The forum’s director of arbitration serves the statement of claim on the broker-dealer or individual broker (called respondents) against whom the claim has been brought. The respondent has from 20 to 45 days, depending on the forum used, to answer the claim with any defenses and related claims. After the filing process, the director of arbitration provides the parties with a list of potential arbitrators to hear the dispute. The parties indicate their preference and may challenge specific arbitrators on the list. Once the panel of arbitrators has been selected, the panel conducts hearings that may last a day or more depending on the complexity of the case. Arbitrators are to render their decisions after the presentation of the evidence at the hearings. Arbitrators issue a written “award” at the end of a case. The written award is not required to include a reason or formal written opinion supporting the award. However, the award is required to include a statement setting out certain issues, including the basic issues raised and resolved in a case, the amount claimed and awarded, and any other, non- monetary issues resolved. New NASD Procedures Address Concerns about Information on Arbitrators and Removing Arbitrators from Cases NASD has taken steps to improve its procedures for updating arbitrator disclosure information and removing arbitrators from cases. The arbitrator update improvements included centralizing the process for updating arbitrator profiles and making an on-line reporting form available for arbitrators to submit new disclosure information. Another change allows the President, NASD Dispute Resolution, and its Director of Arbitration to remove an arbitrator from a case once the hearing process has begun and new information about the arbitrator has been disclosed. 7 NASD Dispute Resolution facilitates the resolution of monetary, business, and employment disputes between investors, securities firms, and employees of securities firms, offering both arbitration and mediation services. Page 4 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration NASD Procedures Help Ensure That Arbitrator Disclosure Information Is Updated Regularly In selecting individuals to be in its pool of potential arbitrators, NASD relies on background information that prospective arbitrators provide. This information is first entered into the NASD arbitrator information database when arbitrators enroll in the program and is to be updated for any new information. NASD uses the background 8 information to classify arbitrators as “public” or “nonpublic.” The parties in a dispute also use this information in deciding whether to accept arbitrators to be assigned to their case. NASD arbitrator disclosure reports include information on education and training, employment, past arbitration experience, finances, and conflicts of interest. The reports also include a narrative section, written by the arbitrators, describing their professional duties and responsibilities. As we reported in November 2000, NASD has taken steps to improve its procedures 9 for updating and entering arbitrator disclosure information. We reported that the new procedures appeared reasonable and were likely to reduce the possibility for errors and improve the promptness of data entry. The improvements included • centralizing the process for updating arbitrator profiles in the Department of Neutral Management in the New York City offices of NASD’s Division of Dispute Resolution, and • using an on-line reporting form on which arbitrators submit updated disclosure information via a NASD dispute resolution program Web site. NASD procedures state that all updated arbitrator records, whether received on-line or by phone or fax, are to be reviewed by a quality control supervisor after they are initially entered. Records of arbitrators currently serving on panels are to be updated within 24 hours, while updates from nonserving arbitrators can be entered in 3 to 5 days. NASD staff are also to monitor and track all entries to arbitrator profiles and prepare a biweekly report to department managers on the receipt and computer entry of arbitrator updates. For each arbitrator submission, the biweekly reports list the date the information was received by the Department of Neutral Management and the date computer entry of the information was completed. The department manager is to use the report to verify the timeliness of the process. In November 2001, SEC reported that, after the new procedures were implemented, neither SEC nor NASD had received any new complaints regarding the arbitrator 8 A public arbitrator has had no recent association with the securities industry whereas a nonpublic arbitrator has had recent or has current association with or experience in the securities industry. Public arbitrators are used in all investors’ cases. In single arbitrator cases in which claims are $50,000 or less, the arbitrator is a public arbitrator. In cases with three arbitrators in which claims are more than $50,000, two of the arbitrators are public arbitrators. 9 U.S. General Accounting Office, Procedures for Updating Arbitrator Disclosure Information, GAO-01-162R (Washington, D.C.: Nov. 9, 2000). Page 5 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration disclosure records. According to NASD, from November 2001 through the end of 2002 it had logged one complaint about an arbitrator failing to update his background information. In that case, according to NASD, a party in a dispute asked the arbitrator for new information, and the arbitrator sent the new information to the party by fax and to NASD by mail. As a result, the party received the information before NASD could receive it, update its disclosure information database, and make the information available. SEC officials said that they did not recall receiving any new complaints and SEC has indicated that its inspection staff will continue to monitor NASD’s process for updating arbitrator profiles. In 2004, NASD plans to use a new computer system that would enable arbitrators to access and update their own disclosure records on-line at a NASD Web site. New Procedures Make Removing Arbitrators from Cases Easier Effective March 2001, SEC-approved amendments to NASD’s Code of Arbitration Procedure gave the President, NASD Dispute Resolution, and its Director of Arbitration indelegable authority to remove an arbitrator at any juncture in the arbitration process. These amendments allow for removal of an arbitrator from a case after a prehearing conference or a hearing has been started, based on new information that was not known to the parties at the time of the arbitrator’s appointment but that the arbitrator, pursuant to NASD rules, should have disclosed. Under the old rule, the director could disqualify an arbitrator from serving on a case when information revealed a conflict of interest or bias such as a relationship with one of the parties. However, this authority to disqualify was limited to the time before the start of the prehearing conference or the first hearing. After that point, the parties would have needed to make a motion before the arbitration panel asking the arbitrator to recuse himself or herself or seek a court action to remove an arbitrator from a case. In approving the rule change, SEC noted that the change should result in lower litigation expenses for the parties, because they would not have to seek judicial intervention to remove an arbitrator. SEC also noted that the change would help ensure greater confidence in the fairness and neutrality of the administration of arbitration cases. According to NASD, after the new rule became effective in March 2001 and through the end of 2002, NASD had received 47 requests for the Director of Arbitration to exercise the authority to remove an arbitrator. NASD reported to us that the Director denied these requests in 38 instances and removed an arbitrator in 9 instances. Motions to Dismiss Are Used in NASD Arbitrations Prehearing motions to dismiss are used in NASD-administered arbitration cases. NASD, however, does not centrally track the motions filed in its numerous cases. Data that we assembled from 719 investor-initiated, NASD-administered monetary arbitration awards in 2001, showed that motions to dismiss were filed in 54 cases and a request for summary judgment in one case, or in about 8 percent of all the cases. In Page 6 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration the 54 cases, 124 motions were filed. We identified 42 instances in which the motions were not decided because the claims had been dismissed for other reasons or settled by the parties before the case was decided. We identified 54 instances in which the motions were denied and 28 instances in which the motions were granted. The total number of motions filed exceeded the number of cases because any one case may involve multiple respondents and multiple filings of motions. SEC officials said that some motions to dismiss are based on substantive arguments, while others assert practical ones, for example, that the wrong party was named or served. The awards did not provide enough detail about the motions for us to determine the reasons for their being filed. NASD arbitration rules do not specifically provide for dismissal motions or for motions for summary judgment. However, nothing in the rules prohibits the parties from filing motions or precludes panels from granting them. NASD rules are consistent with the practice of disposing of claims by motion. NASD rules allow prehearing conferences at which the presiding person can require the briefing of contested issues and address “any other matters which will expedite the arbitration 10 cases.” The case law consistently has recognized the authority of arbitrators to grant prehearing motions to dismiss. For example, in Warren v. Tacher the underlying dispute in the arbitration proceeding involved alleged investor losses in a brokerage account.11 The investors brought a claim for arbitration against the broker-dealer that maintained the account and the clearing broker-dealer. The clearing broker-dealer moved to dismiss all claims on the ground that it had no responsibility to claimants. The claimants filed a written response to the motion and the arbitration panel held oral argument. The arbitration panel dismissed all claims against the clearing broker- dealer. The claimants appealed and sought to have the arbitrators’ decision vacated on the ground that the arbitrators engaged in misconduct and exceeded their powers by dismissing the claims against the clearing broker-dealer prior to discovery and an evidentiary hearing. The court stated that courts have recognized the authority of NASD arbitrators to decide prehearing dismissals for failure to state a claim under 12 the NASD Code. The court rejected an argument that the arbitrators displayed a “manifest disregard for the law” by their determination to dismiss all claims against the clearing broker-dealer. 10 NASD Code §10321(d)(1). General Provisions Governing Pre-Hearing Proceedings, Pre-Hearing Conference, (1) Upon the written request of a party, an arbitrator, or at the discretion of the Director of Arbitration, a prehearing conference shall be scheduled. The presiding person shall seek to achieve agreement among the parties on any issue that relates to the prehearing process or to the hearing, including but not limited to stipulation of facts, identification and briefing of contested issues, and any other matters which will expedite the arbitrations. 11 114 F. Supp. 2d 600 (W.D. Ken. 2000). 12 Goldman, Sachs & Co. v. Patel (N.Y.L.J. Aug. 18, 1999, p. 23, co. 6) (“Contrary to respondent’s assertion, the NASD panel has the power to decide a motion to dismiss a claim on legal grounds without holding an evidentiary hearing.”). Page 7 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration The court in Warren v. Tacher also addressed the issue of whether the grant of a prehearing motion to dismiss is tantamount to a refusal to hear evidence. The court rejected this argument and explained that while the granting of a prehearing motion to dismiss usually means that the arbitrator “refused to hear evidence,” that, by itself, is insufficient to vacate the award. Claimants must also show that the excluded evidence was material to the panel’s determination and that the arbitrator’s refusal to hear the evidence was so prejudicial that the party was denied fundamental fairness.13 In addition, the court held that a hearing for purposes of NASD rules does not necessarily mean an evidentiary hearing. The court found that the claimants did have a “hearing.” They were given adequate opportunity to respond to the clearing agent’s motion to dismiss and they did so. The courts have upheld arbitrators granting of dismissal motions in other cases. These include dismissal on the grounds of the timeliness of the claims, a respondent’s involvement in the matter in controversy, or whether the claimant has a private right 14 of action for alleged violation of an SRO rule. We have not found any cases that do not recognize arbitrators’ authority to grant prehearing motions to dismiss. Moreover, an NASD official told us that these motions can save time and resources by helping to identify certain cases that would not prevail in a hearing on the merits. For example, in some cases the parties’ pleadings may clearly show that the case, or some portion of the case, does not fall within the NASD’s procedural rule covering filing time limits, which would send the case instead to court. On the other hand, a member of the Securities Industry Conference on Arbitration said that motions to dismiss and motions of summary judgment ought to be discouraged because discovery and appeal rights in arbitration are limited. Another arbitration official also said that parties in arbitration deserve the right to be fully and fairly heard. Rate of Unpaid Awards Has Decreased, but Many Investors Are Not Paid Awards against Defunct Brokers Data for 2001 show that the rate of unpaid NASD-administered arbitration awards had decreased from the levels we previously reported for 1998. NASD procedures for monitoring awards encourage payment by still-active brokers. However, defunct brokers continue to not pay awards. The recent rise in arbitration claims may result in more investors not being paid their awards. 13 9 U.S.C. § 10(c); Campbell v. Cantor Fitzgerald & Co., 21 F. Supp. 2d 341, 344 (S.D.N.Y. 1998). 14 In Howsam v. Dean Witter, 123 S.Ct. 588 (2002), the United States Supreme Court recently held that arbitrators can decide that a claim is ineligible for arbitration under an NASD rule that provides that claims submitted a certain time after they arose are ineligible. The Court’s decision does not address whether arbitrators should make such a decision in response to a motion to dismiss an arbitration claim. Dean Witter did not file a motion to dismiss the arbitration claim. It brought an action in federal court asking the federal court to decide that the arbitration claim was untimely. Page 8 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Payment Rates Have Improved, but Many Awards Still Are Not Fully Paid Although the rate of unpaid arbitration awards has fallen, many awards rendered by NASD arbitration panels remain unpaid. In 2001 about 55 percent, or $55 million, of the $100.2 million NASD arbitrators awarded to investors was unpaid. However, $12 million of the unpaid awards were not required to be paid because the respondents had requested a hearing, filed for bankruptcy, or filed a motion to vacate. In our June 2000 report, we estimated that about 80 percent of the $161 million awarded to investors in 1998, which were primarily NASD-administered awards, was unpaid. In that report, we estimated that 64 percent of NASD- administered monetary arbitration awards won by investors in 1998 had not been fully paid. Our analysis of NASD award payment data for 2001 found that 33 percent of awards to investors were unpaid. Of the total of 719 monetary awards that investors won in 2001, 236 awards were not fully paid. (Nothing was paid on 216 awards and 20 awards were partially paid.) In June 2000, we reported that most of the unpaid arbitration awards in 1998 were against broker-dealer firms and associated persons that had left the securities industry. Awards that were not fully paid in 2001 also were against such defunct brokers. More specifically, as shown in table 1, nonpayment of 192 awards ($41 million) in 2001, was attributed to brokers that had terminated their NASD membership. In an additional 16 awards, NASD suspended firms or individual brokers for failing to pay $2.1 million of awards. In 29 awards, $12 million awarded was not paid because the respondents had requested a hearing, filed for bankruptcy, or filed a 15 motion to vacate the award. 15 NASD procedures allow the respondent to request a hearing on the matter to consider whether (1) the respondent was given notification of the award, (2) the respondent satisfied the award, and (3) a valid reason exists for the respondent’s failure to comply with the award. Page 9 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Table 1: Number and Amount of Dollars Not Fully Paid by Broker-dealers or Individual Brokers with NASD-administered Arbitration Awards against Them and Award Nonpayment Status in 2001 Terminated Filed NASD Requested a Filed for motion to membership Suspended hearing bankruptcy vacate Total Number of 192 16 7 5 17 237a awards not fully paid Dollars $41 $2 $2 $1 $9 $55 not paid (in millions) Source: NASD (data); GAO (analysis). a The sum of these unpaid cases exceeds the 236 unpaid awards because cases with multiple respondents can have different outcomes. NASD Procedures to Monitor the Payment of Awards Are Designed to Encourage Award Payment NASD has put procedures in place for monitoring the payment of awards that are designed to encourage award payment. In September 2000, NASD began requiring its member broker-dealers to certify that they had paid or otherwise complied with an award against them or their associated persons within 30 days after the award was served. NASD also began asking the claimants who had won awards to notify it if an award had not been satisfied within the 30-day period. If an award is not paid, NASD begins the process of suspending the license of the broker-dealer firm or the individual broker responsible for payment of the award. In 2001, NASD suspended one or more of the respondents in 12 cases for failing to pay awards. Members and individuals who fail to pay awards cannot apply to restore their licenses until an award against them is satisfied. Although these procedures may have helped to reduce the rate of unpaid awards, the previously discussed reduction in the rate of unpaid awards also might reflect differences in the methodologies used to compile the data used to calculate the rate. Our June 2000 report was based on data that we obtained by surveying a sample of investors that had won arbitration awards in 1998. For this report, the rate was calculated from data obtained from NASD based on its monitoring of award payment for the entire year of 2001. Additionally, arbitration attorneys said that they have begun scrutinizing cases more closely to avoid taking cases where awards might not be paid, a factor which may also have contributed to a reduction in the rate of unpaid awards. Page 10 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration NASD Has Implemented Changes to Help Address the Problem of Unpaid Awards by Failed Broker-Dealers NASD is helping to address the problem of unpaid awards by defunct brokers by making it easier for investors to seek alternative means of relief or obtain a judgment against the broker. These procedures address the problem of unpaid awards by defunct brokers, for example, by helping shorten the time period for obtaining a court judgment that could be used to seize remaining assets of a defunct broker. In April 2001, SEC approved amendments to NASD’s Code of Arbitration Procedure, §10301, effective June 2001, that provided that a broker-dealer that has been terminated, suspended, or barred from NASD, or that is otherwise defunct cannot enforce a predispute arbitration agreement against an investor in NASD’s arbitration forum. Also, in June 2001, NASD began to advise claimants in writing, at the time they file a claim, of the registration status (for example, terminated, out-of-business, bankrupt) of broker-dealers or associated persons so that the claimants can evaluate whether to continue with the arbitration. In October 2002, a new NASD rule, which SEC approved in July 2002, took effect. The rule provides for streamlined default proceedings where the terminated or defunct broker-dealer or associated person does not answer or appear, but the claimant affirmatively elects to pursue the arbitration. Under the streamlined proceedings, an arbitrator can make a decision based on the statement of claim and any other material submitted by the claimant. In addition, in August 2002, the NASD Board of Directors approved a proposed amendment, which was submitted in January 2003 to SEC for approval, that would strengthen NASD’s authority to preclude member broker-dealers from using structural changes, such as consolidations or other asset sales and transfers, to avoid meeting their arbitration obligations to investors. Also, NASD officials said that NASD’s Enforcement Division had started reviewing new arbitration claims as they come in as part of an effort to identify potentially troublesome members. In our June 2000 and April 2001 reports, we discussed proposals made by investors’ attorneys to address the unpaid award problem such as insurance and bonding. In the June 2000 report we recommended that, to the extent unpaid awards remain a problem, the SEC’s Chairman should establish a process to assess the feasibility of alternative approaches to address the problem. In response SEC officials said that after our report was issued SEC staff assessed other approaches addressed in the report including insurance and bonding. According to the officials, SEC staff met with broker-dealer representatives and insurance companies to discuss existing broker- dealer insurance and bonding requirements. The officials said that after those consultations, the staff concluded that expanding broker-dealer insurance and bonding requirements would not be an appropriate means of addressing unpaid arbitration awards. Instead, SEC staff concluded that the efforts of NASD—which conducts most broker-dealer examinations—to institute a procedure of reviewing all arbitration claims as they are filed to identify problem brokers early through related examinations and as appropriate, enforcement action, would limit the harm they cause investors. The officials said that this, as well as other initiatives NASD has taken, which are described earlier in this report and in our June 2000 and April 2001 reports, should be given time to work. SEC’s continuation of the process we Page 11 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration recommended in June 2000 to assess the feasibility of alternative approaches to address the problem of unpaid awards by defunct brokers could further reduce the incidence of unpaid awards. This process could consider how SEC and NASD programs for broker registration, regulation, enforcement, as well as arbitration, and other areas as appropriate, can further reduce the incidence of unpaid awards. In June 2000, we also recommended that the SEC Chairman work with the SROs to develop and publicize information to focus investor attention on the possibility of unpaid arbitration awards. In response, NASD and SEC made information available on their Web sites to caution investors about the possibility of having an unpaid award. That information, while helpful, does not provide any data to inform investors of the scope of the problem or the frequency with which awards are unpaid by defunct brokers. Increasing investors’ awareness of the scope and frequency of the problem may better inform investors that broker-dealers that stay in business generally pay awards and help to reduce unpaid awards by defunct brokers. Recent Increase in Arbitration Claims Suggests That Many Future Awards also Might Not Be Paid Arbitration claims have increased sharply, which may mean, assuming the rate of unpaid awards remains the same; more investors may not be paid. In 2001, 6,926 arbitration claims were filed with NASD. In 2002, the number of new cases further increased to 7,709, or a 39 percent increase over the 5,565 total claims filed in 2000. In most of these cases—4,849 in 2001 and 5,974 in 2002—investors filed claims against their brokers. Through 2002, these investor-initiated cases increased by 64 percent from the 3,637 claims filed by investors in 2000. NASD officials said that whether this increase in claims will mean more unpaid awards depends on the types of broker- dealers any resultant awards might be against. For example, if the increase in claims results in more awards against large viable broker-dealers that tend to pay awards, the number of unpaid awards could decrease. NASD officials said that the increase in claims filed was the result of changes in the economy. The officials said the downturn in and increased volatility of the stock market in 2001, an influx of new inexperienced investors during the boom years of the late 1990s, and the overall increased number of securities holders contributed to the increase in arbitration claims filed. According to NASD, claims alleging broker failure to supervise their sales representatives, breach of fiduciary duty, misrepresentation, and negligence also had increased. Conclusions The rule and procedural changes that NASD has adopted to improve the arbitrator information update process and its ability to remove arbitrators from cases appear reasonable and could improve the effectiveness and efficiency of arbitration. These changes could help NASD to keep current the information that parties in arbitration use in selecting arbitrators and allow for faster and less costly removal of arbitrators in cases where there has been an undisclosed conflict of interest. Page 12 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Motions to dismiss are used, but not with great frequency, in NASD arbitrations. Arbitration law and codes do not explicitly prohibit the use of these motions. Because appeal rights and evidentiary discovery are limited, a Securities Industry Conference on Arbitration member said that arbitration forums should discourage the granting of these motions. However, NASD officials have contended that use of these motions helps to make the arbitration process more efficient. Data show that the rate of unpaid awards has diminished since our June 2000 report. However, continued unpaid awards, regardless of how effective and fair the arbitration process may be, could negatively affect investors’ confidence in arbitration and potentially the securities markets in general. Unpaid awards also may discourage attorneys from taking investors’ cases. It is important that regulators continue to issue a strong message to investors about being cautious in choosing their brokers because some brokers will never pay for the damage they cause. Moreover, given that continued unpaid awards could erode investors’ confidence in arbitration, SEC’s Chairman should continue the process we recommended in June 2000 to assess the feasibility of alternative approaches to address the problem of unpaid awards by defunct brokers. This process could consider how SEC and NASD programs for broker registration, regulation, enforcement, as well as arbitration, and other areas as appropriate, could further reduce the incidence of unpaid awards. Further, NASD needs to be concerned about unpaid awards, which represent inefficient use of NASD dispute resolution program resources and futile efforts by defrauded investors seeking restitution. By making data on the frequency with which awards are unpaid by defunct brokers publicly available, NASD could better inform investors of the possibility of unpaid awards by defunct brokers and increase investors’ awareness of the scope of the problem. This, in addition, could cause investors to be more cautious in choosing their broker and also help them decide whether to file an arbitration claim or seek alternative means of obtaining relief and avoid unnecessary expenses. Recommendation for Executive Action We recommend that the President, NASD Dispute Resolution, make available on NASD’s Web site current statistics showing the frequency with which arbitration awards against defunct brokers are not fully paid. Agency Comments and Our Evaluation SEC and NASD provided written comments on a draft of this report, which are reprinted in enclosures I and II. SEC and NASD also provided technical comments, which were incorporated into the final report. SEC agreed with the contents of this report and noted that our work demonstrates that NASD has developed necessary tools to administer its growing caseload and that implementation of our June 2000 recommendations has helped achieve an appreciable reduction in the rate of unpaid awards. SEC commented that it welcomes our recommendation that NASD make available on its Web site current statistics showing the frequency with which arbitration awards against defunct brokers are not fully paid. SEC said that this more Page 13 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration explicit data should help deliver to investors the educational message to choose investment professionals carefully. SEC noted that SEC staff believe that more time is needed to realize the full effects of the steps taken after our June 2000 report and that it continues to work with NASD to better identify individuals responsible for unpaid awards. NASD generally agreed with the contents of this report and provided additional information on the various steps it has taken related to its addressing the problem of unpaid awards. NASD also noted the dramatic improvement in the rate of unpaid awards from our June 2000 report and provided updated information on the status of awards we found to be unpaid. NASD updated the payment status of awards that were paid after it threatened suspension of the member or a motion to vacate was denied or which had motions to vacate still pending, which reduced the percent of awards unpaid from 55 percent to 53 percent. NASD stated that it would consider our recommendation and additional ways to enhance investor education about the problems associated with terminated members and the payment of awards. NASD commented that it strives to strike a balance between disclosing information and not discouraging investors from filing valid claims. NASD stated that, with that concern in mind, it will develop an approach to enhance the data available to investors to enable them to make more informed decisions about whether to pursue a claim. NASD also commented that it welcomes the opportunity to participate in a feasibility study of alternative solutions to address the problem of unpaid awards that we recommended in June 2000. We commend SEC and NASD for the efforts they have taken to monitor and educate investors about unpaid awards, and provide investors viable options when faced with the possibility of unpaid awards. However, the extent to which awards are unpaid by defunct brokers shows that unpaid awards, even when reduced to 53 percent for 2001, as NASD adjusted it, is still a serious problem that can affect investors’ confidence in arbitration and potentially the securities markets and discourage attorneys from taking investors’ cases. It is, therefore, important that NASD make available to investors current statistics on the frequency with which awards are unpaid by defunct brokers and that regulators continue to monitor unpaid awards and consider ways of addressing the problem. Scope and Methodology We analyzed information on NASD procedures for updating arbitrator disclosure information and removing arbitrators from cases based on our review of NASD’s procedures and interviews of NASD officials. We analyzed information on the use of motions in arbitration based on interviews of officials of NASD and the Securities Industry Conference on Arbitration. We also reviewed arbitration rules of NASD and other forums and federal case law regarding the uses of motions to dismiss and motions for summary judgment in NASD cases. We then identified the extent to which these motions were used in 2001 NASD investor-initiated cases in which monetary award decisions were rendered in favor of investors. Page 14 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration To determine changes in arbitration claims and the rate at which awards in investor- initiated cases were paid, we analyzed NASD data. Initial testing of the NASD data on award payment found errors that could overstate the extent to which awards were paid that were significant enough to require further verification and correction. We then had NASD correct any errors found and then further tested the accuracy of the data. We reviewed a randomly-selected sample of 34 cases out of 719 monetary awards in 2001 to verify that NASD had documentation showing that the awards were paid. From our random sample of 34 awards 1 award was initially listed as paid, but we discovered on further review that the award was unpaid, and the respondent had filed for bankruptcy. Subsequently, NASD discovered an additional award that was mistakenly classified as unpaid. The number and magnitude of these data errors are small enough that the data are sufficiently reliable for our purposes and should not materially affect the estimates of payment rates in this report. Nevertheless, we apprised SEC officials of the errors. The officials said that SEC examiners would test the accuracy of the award payment data as part of SEC’s routine inspections of NASD's dispute resolution program. NASD officials told us that the errors resulted from NASD not having a means of tracking the payment status of awards. Once an award was granted, NASD gave the case a closed status and NASD staff had to manually compile the payment data from documents in case files. The NASD officials said that NASD has since entered new status codes in its computer system for tracking the payment status of awards. They said that they can now track different outcomes related to award payment such as receiving a broker’s certification that an award was paid or that a broker had filed a motion to vacate an award in a court. The officials said that this change should minimize the opportunity for compilation errors. We conducted our work in Washington, D.C., and New York, N.Y., from April 2002 through March 2003, in accordance with generally accepted government audit standards. As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will provide copies of this report to the Chairman, House Committee on Energy and Commerce; the Chairman, Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce; the Chairman and the Ranking Minority Member, Senate Committee on Banking, Housing, and Urban Affairs; and the Chairman and the Ranking Minority Member, House Committee on Financial Services. Copies also will be provided to the Honorable William H. Donaldson, Chairman, SEC; Mr. Robert R. Glauber, Chairman, NASD; and other interested parties. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov. Page 15 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Please call me or Orice M. Williams, Assistant Director, at (202) 512-8678 if you or your staff have any questions concerning this report. David Tarosky and Sindy Udell also contributed to this report. William O. Jenkins Jr. Director, Financial Markets and Community Investment Enclosures Page 16 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure I Comments from the Securities and Exchange Commission Page 17 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure I Page 18 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure I Page 19 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Comments from NASD Page 20 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 21 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 22 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 23 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 24 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 25 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 26 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 27 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 28 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 29 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 30 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II Page 31 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration Enclosure II (250081) Page 32 GAO-03-162R Follow-up Report on Matters Relating to Securities Arbitration This is a work of the U.S. government and is not subject to copyright protection in the United States. 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Follow-up Report on Matters Relating to Securities Arbitration
Published by the Government Accountability Office on 2003-04-11.
Below is a raw (and likely hideous) rendition of the original report. (PDF)