Securities Arbitration Lawyer Blog
The Financial Industry Regulatory Authority (FINRA) has postponed in-person arbitration hearings and mediations through January 1, 2021. The latest FINRA administrative postponement follows the health crisis’ evolving nature and affects all active cases scheduled for a hearing before a FINRA arbitration panel through that date. In response, customers have sought to hold virtual securities arbitration hearings via Zoom. The goal of these customer requests is to avoid unnecessary delays and resolve their claims in a timely manner by keeping their original hearing dates on the calendar. Virtual hearings are particularly critical for elderly investors or investors in poor health. Yet, arbitration panels have denied investors’ requests for a virtual arbitration hearing in 27% of cases. That means that almost 3 in 10 investors who wished to proceed with a virtual hearing were prevented from doing so. FINRA should take bolder action, and as an equitable forum, it should act to address this uneven disposition by arbitration panels, which unfairly prejudices nearly a third of investors. FINRA should amend its rules and automatically convert in-person hearings canceled due to COVID-19 to virtual hearings.
Seventh Circuit Court of Appeals Precedent and the Potential for Indefinite Delays
There is already precedent out of the Seventh Circuit Court of Appeals in favor of virtual hearings. Clunkier than an in-person hearing? Sure. But both sides will deal with logistical challenges, ruled a Federal Judge. There is no unfair prejudice to either party in holding a hearing on Zoom. The way the system is currently set up, motion practice is required. Both the Claimant and the Respondent present their arguments for or against holding a virtual hearing, and the arbitration panel then issues its order. A uniform solution by the regulator, albeit a temporary one, seems better than arbitration panels granting some motions for virtual arbitration hearings while denying others. It makes little sense, particularly at a time of uncertainty and health risks for everyone involved in the process.