Mar 03

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A second shot at an end to pre-dispute mandatory arbitration clauses with brokers

Legislation that would free investors from the requirement to engage in pre-dispute mandatory arbitration with their brokers is getting a second life.  Congressman Keith Ellison, D-Minn, has once again introduced the bill to Congress, with the following findings:

“(1) Investor confidence in fair and equitable recourse is essential to the health and stability of the securities markets and to the participation of retail investors in such markets.

(2) Brokers, dealers, and investment advisers hold powerful advantages over investors, and mandatory arbitration clauses, including contracts that force investors to submit claims to arbitration or to waive their right to participate in a class action, leverage these advantages to severely restrict the ability of defrauded investors to seek redress.

(3) Investors should be free to choose arbitration to resolve disputes if they judge that arbitration truly offers them the best opportunity to efficiently and fairly settle disputes, and investors should also be free to pursue remedies in court should they view that option as superior to arbitration.”


If passed, Section 15(o) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(o)) would be amended to read as follows:


Notwithstanding any other provision of law, it shall be unlawful for any broker, dealer, funding portal, or municipal securities dealer to enter into, modify, or extend an agreement with customers or clients of such entity with respect to a future dispute between the parties to such agreement that—

(1) mandates arbitration for such dispute;

(2) restricts, limits, or conditions the ability of a customer or client of such entity to select or designate a forum for resolution of such dispute; or

(3) restricts, limits, or conditions the ability of a customer or client to pursue a claim relating to such dispute in an individual or representative capacity or on a class action or consolidated basis.’’

About the author

Renee Howdeshell

Renee Howdeshell is a founding member of Fulcrum Inquiry, an accounting, finance and economic consulting firm that performs damage analyses for commercial litigation, forensic accountings, royalty & distribution audits, financial investigations, and business valuations. Ms. Howdeshell holds a degree in Finance and Marketing from the University of Virginia's McIntire School of Commerce and is a Certified Public Accountant (CPA) and a Certified Fraud Examiner (CFE). She has testified as an expert witness in federal court, CA state court and arbitration regarding the results of her work. She can be reached at (213) 787-4112 and her resume is available at www.fulcrum.com.

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