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PDF of Title Page and T.O.C.

 

Chapter 1 The Regulatory Framework of Securities Arbitration

§ 1.01 Introduction: A History of Securities Arbitration
§ 1.02 Background: SEC Oversight of the SRO Arbitration Programs
§ 1.03 Relationship of SRO Arbitration Programs and SRO Disciplinary Departments
§ 1.04 The History of the Arbitration Rules Reform
§ 1.05 The Dispute Resolution Task Force: Recommendations and Results
§ 1.06 Other Projects to Improve Securities Arbitration
§ 1.07 Use of Predispute Arbitration Clauses by the Securities Industry in Customer Agreements
§ 1.08 Federal and State Legislative Attention to Securities Industry Arbitration

Chapter 2 Jurisdiction

§ 2.01 Introduction
§ 2.02 The Appropriate Arbitral Forum
§ 2.03 Statute of Limitations

Chapter 3 The Arbitration Agreement

§ 3.01 Introduction
§ 3.02 Existence of the Arbitration Agreement
§ 3.03 Scope of the Arbitration Agreement
§ 3.04 Waiver

 

Chapter 4 Determining Whether to Arbitrate or Litigate

§ 4.01 Introduction
§ 4.02 Availability of the Arbitration Alternative
§ 4.03 The Choice Between Arbitration and Litigation: Applicable Rules of Decision
§ 4.04 The Choice Between Arbitration and Litigation: The Decision Makers
§ 4.05 America Arbitration Association Rules: A Brief Summary
§ 4.06 JAMS: A Brief Summary
§ 4.07 The Choice Between Arbitration and Litigation: Procedural Differences
§ 4.08 The Choice Between Arbitration and Litigation: Miscellaneous Decisions

 

Chapter 5 Compelling or Resisting Arbitration

§ 5.01 Compelling and Resisting Arbitration
§ 5.02 Substantive and Procedural Law Governing Arbitrability
§ 5.03 Federal Arbitration Act
§ 5.04 Procedure to Compel Arbitration
§ 5.05 Jurisdictional Issues in Obtaining an Order to Compel Arbitration
§ 5.06 Elements of Petitioner's Case
§ 5.07 Elements of Respondent's Case
§ 5.08 Is the Dispute Rendered Non-Arbitrable for Public Policy Reasons?
§ 5.09 Stay of Litigation Under Section 3 Where Civil Action Is Already Pending in State or Federal Court
§ 5.10 Interaction of Sections 3 and 4
§ 5.11 When a Lawsuit Presents Arbitrable and Non-Arbitrable Claims; The Intertwining Doctrine
§ 5.12 Sanctions Against Losing Party on Motion to Compel Arbitration or Stay Judicial Proceeding
§ 5.13 Appealability of Grant or Denial of Order Compelling Arbitration
§ 5.14 Discovery in Aid of Proceeding to Compel Arbitration
§ 5.15 Provisional Judicial Relief Pending and in Aid of Arbitration

 

Chapter 6 Commencing an Arbitration Proceeding

§ 6.01 Introduction
§ 6.02 Representation Issues
§ 6.03 Rules for Commencing an Arbitration
§ 6.04 Selecting the Arbitration Forum
§ 6.05 Location of the Arbitration
§ 6.06 Initiating the Arbitration
§ 6.07 Answering the Complaint
§ 6.08 Counterclaims, Cross-Claims and Third Party Claims
§ 6.09 Joinder, Consolidation and Severance

 

Chapter 7 Pre-Hearing Matters

§ 7.01 Selection of Arbitrators
§ 7.02 Discovery
§ 7.03 The Importance of the FINRA Discovery Guide Documents and Additional Documents
§ 7.04 Pre-Hearing Conferences
§ 7.05 FINRA Pre-Hearing Motions
§ 7.06 Pre-Hearing Motions in AAA and JAMS Arbitrations

 

Chapter 8 The Conduct of the Hearing

§ 8.01 Background
§ 8.02 When Hearings Are Not Required
§ 8.03 Failure of a Party to Appear
§ 8.04 Who May Attend the Hearing
§ 8.05 The Creation of a Record
§ 8.06 Burden of Proof
§ 8.07 Order of Proceedings
§ 8.08 Reopening Hearings
§ 8.09 Motion for Reconsideration
§ 8.10 Rules of Evidence
§ 8.11 Testimony
§ 8.12 Documentary Evidence
§ 8.13 Adjournments
§ 8.14 The Arbitrators as Judges

 

Chapter 9 Remedies and Damages

§ 9.01 Introduction
§ 9.02 Damages
§ 9.03 Equitable Relief
§ 9.04 Expungement
§ 9.05 Disciplinary Referrals

 

Chapter 10 The Award

§ 10.01 The Deliberative Process
§ 10.02 Form of Award and Contents
§ 10.03 Public Availability of Awards
§ 10.04 Res Judicata and Collateral Estoppel
§ 10.05 Stare Decisis
§ 10.06 Post-Award Contact with Arbitrators

 

Chapter 11 Enforcing or Appealing an Arbitration Award

§ 11.01 Introduction
§ 11.02 Forum and Venue Issues
§ 11.03 Enforcing the Award
§ 11.04 Challenging the Award

 

Chapter 12 Mediation: An Alternative to Arbitration

§ 12.01 Introduction: What Is Mediation?
§ 12.02 History of Mediation in the Securities Industry
§ 12.03 The Benefits of Mediation
§ 12.04 The Mediation Process
§ 12.05 The Future of Mediation

 

Index

SOURCES: LAW AND RULES

(Available on CD Rom)

Source 1 Arbitration and Mediation Forums
Source 2 Federal Arbitration Act
Source 3 FINRA Code of Arbitration Procedure for Customer Disputes
Source 4 FINRA Code of Arbitration Procedure for Industry Disputes
Source 5 FINRA Code of Mediation Procedure
Source 6 FINRA Dispute Resolution Party’s Reference Guide- National Edition
Source 7 FINRA Dispute Resolution Party’s Reference Guide- Simplified Cases
Source 8A FINRA Discovery Guide 2011
Source 8B FINRA Discovery Guide 2013
Source 9 FINRA Uniform Forms Guide
Source 10 FINRA Arbitrator’s Guide 2014
Source 11 FINRA Hearing Procedure Script  - 3 Member Panel
Source 12 Chicago Board Options Exchange Arbitration Rules
Source 13 NFA Code of Arbitration
Source 14 American Arbitration Association Commercial Dispute Resolution Procedures
Source 15A American Arbitration Association Securities Arbitration Supplementary Procedures
Source 15B American Arbitration Association Consumer Arbitration Rules
Source 16 JAMS Comprehensive Arbitration Rules and Procedure
Source 17 FINRA Uniform Submission Agreement - Claimant & Respondent Forms

APPENDICES: PLEADINGS AND FORMS
(Available on CD-ROM)

APPENDIX 1: ARBITRATION AGREEMENTS
Appendix 1A Arbitration Provisions from Clearing Agreement
Appendix 1B Excerpt from Form U-4 with Arbitration Provision Highlighted

APPENDIX 2: COMPELLING AND RESISTING ARBITRATION
Appendix 2A Letter Demanding Arbitration and Requesting that Civil Action Be Withdrawn
Appendix 2B Defendant’s Motion to Compel Arbitration and Stay Action

APPENDIX 3: COMMENCING THE ARBITRATION PROCEEDING: SUBMISSION AGREEMENTS/STATEMENTS OF CLAIM
Appendix 3A Claim Information Sheet
Appendix 3B Financial Industry Regulatory Authority Office of Dispute Resolution
Appendix 3C Letter to FINRA Requesting Consolidation of Claims
Appendix 3D FINRA Request for Response to Letter Requesting Consolidation of Claims

APPENDIX 4: ANSWERS, COUNTERCLAIMS, AND THIRD PARTY CLAIMS
Appendix 4A Respondent Statement of Answer and Affirmative Defenses
Appendix 4B Counterclaim and Third Party Claim

APPENDIX 5: PRE-HEARING DISCOVERY AND MOTION PRACTICE
Appendix 5A FINRA Pre-Hearing Conference Scheduling Order
Appendix 5B FINRA Dispute Resolution Case Information Sheet
Appendix 5C Claimant’s First Request for Production of Documents and Information to Respondent
Appendix 5D Respondent's First Request for Production of Documents and Information to Claimant
Appendix 5E Claimant's Response to Respondent's Request for Documents
Appendix 5F Respondent's Response to Claimant's Request for Documents
Appendix 5G Motion to Compel Production
Appendix 5H Motion to Dismiss
Appendix 5I Subpoena for Attendance at Arbitration Hearing
Appendix 5J Order Directing Appearance at Arbitration Hearing
Appendix 5K Respondents Witness and Exhibit List
Appendix 5L Confidentiality Agreement

 

APPENDIX 6: SETTLEMENT AND MEDIATION PROCEDURES
Appendix 6A Settlement Agreement and Release
Appendix 6B Mediation Submission Agreement
Appendix 6C FINRA Mediator Selection Letter
Appendix 6D Submission to Dispute Resolution
Appendix 6E JAMS Mediation Agreement

W. Reece Bader received his B.A. in 1963 from Williams College, and his J.D. in 1966 from Duke University of Law, where he was an Editor, Duke Law Journal. After a clerkship with Warren E. Burger on the United States Court of Appeals, D.C. Circuit, he joined Orrick, Herrington & Suteliffe in 1968 and became a partner in January 1974.

 

Mr. Bader has concentrated his practice in the area of securities and futures litigation since 1970. He has extensive experience, involving substantial jury and non-jury trial work in broker-dealer litigation including securities, commodities and public finance. Mr. Bader handles appellate matters and has represented the Securities Industry Association as amicus curiae in broker-dealer litigation. He has acted as lead defense counsel in complex class actions involving initial public offerings and derivative suits, both on behalf of underwriters, companies and officers and directors.

Mr. Bader regularly represents broker-dealers and individuals in both SEC and SRO enforcement actions. These representations have involved a wide variety of issues including insider trading, net capital rules, political contributions, just and equitable trade practices, failure to supervise, books and records, and practices affecting options, futures and Rule 144. As part of his practice he appears in arbitrations conducted by self-regulatory organizations. As a complement to this practice, he assists the firm's Public Finance Department in litigation concerning municipal securities.

He is a former member of the National Arbitration and Mediation Committee of the NASDR, past Co Chair of the Securities Litigation Committee, and past Co-Chair of the Alternative Dispute Resolution Committee of the ABA's Litigation Section, a member of the Securities Dispute Resolution Committee of the Center for Public Resources and member of its Distinguished Neutrals Panel. Mr. Bader frequently writes and lectures on issues pertinent to securities litigation, arbitration, and mediation.

Burton W. Wiand received his B.A. in 1968 from the University of the South and his J.D. from the University of Georgia in 1971. He began his legal career in 1971 by spending almost 14 years with the SEC's Division of Enforcement in Washington, D.C. In 1989 he joined Fowler White Boggs Banker in Tampa and built a nationally recognized financial services and complex litigation practice. In 2009, along with other members of that practice, he formed Wiand Guerra King. With more than 35 years of practice, Burt Wiand has become known as a lawyer that businesses and individuals involved in business turn to when dealing with the most difficult of legal circumstances. His practice includes white collar criminal defense, defense of regulatory matters involving governmental agencies and self regulatory organizations as well as complex litigation matters that threaten the business and reputation of his clients.

Mr. Wiand's practice has involved defending senior officers of broker-dealers in SEC and FINRA proceedings, the defense and trial of a number of SEC enforcement proceedings, the defense of securities and other financial services class actions and derivative lawsuits, and the representation and defense of financial institution clients in state regulatory investigations and proceedings throughout the country. He has also handled hundreds of arbitration proceedings.

In addition to representing clients in defense litigation, regulatory and law enforcement actions, he is often called upon by his clients to provide advice with respect to compliance and corporate governance matters and to conduct internal investigations regarding corporate misconduct involving potential major liabilities. He provides expert testimony in connection with such matters and has been asked by regulators to review matters of corporate and regulatory compliance.

Recently, Mr. Wiand has been appointed as receiver in SEC enforcement actions, FTC cases and in similar capacities at the request of state regulators. He is a frequent speaker to financial services and regulatory groups, including the North American Securities Administrators Association’s Annual Conference. He provides CLE both directly and through industry and bar groups. He also serves as a contributing editor to the Securities Litigation Commentator. He is a member of the American Bar Association, the Legal & Compliance Division of SIFMA. He serves as a FINRA and NFA arbitrator. In 2014, he formed WDK-ADR as an adjunct mediation practice at his law firm and invited co-author W. Reece Bader and Donald Cox to become principals of the dispute resolution business with him. He is a mediator certified by the Supreme Court of Florida.