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FINRA makes it cheaper to get inside arbitrators’ heads

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Parties to a FINRA arbitration will no longer have to pay a $400 fee for an explanation as to why the arbitrators ruled the way they did, according to a notice filed this month by FINRA with the SEC.

The fee waiver aims to remove a potential obstacle to parties making joint requests for what FINRA calls “explained decisions,” the regulator said.
FINRA began waiving the fee in January 2017, but did not officially amend its rules to reflect the change.

All parties in a dispute must jointly request an explained decision prior to the first scheduled arbitration hearing. While an explained decision will allow the feuding parties to better understand the arbitrators’ rationale for an award decision, it does carry the risk of increasing the time to resolution by providing the parties with an additional basis to appeal.

It could also result in the public disclosure of information describing the potential wrongdoing of a member firm or broker, FINRA points out.

“The last thing a firm wants is an arbitrator blasting the firm’s conduct because that provides a roadmap for regulators who might be investigating the broker,” said Andrew Stoltmann, president of the Public Investors Arbitration Bar Association.

Joint requests for explained decisions have been few. From 2009 until the end of 2016, only 40 joint requests have been made, according to FINRA.

FINRA does not anticipate the elimination of the $400 fee to impact its revenue.

Since the regulator began waiving the fee in January 2017, only two joint requests have been made.

Nevertheless, the regulator wants to facilitate greater transparency. FINRA worried that the unofficial fee waiver in effect might lead parties to think that it could go away at any moment.

By making the fee waiver permanent, it would remove a potential barrier to parties making joint requests and thus, FINRA said, “promote transparency of decisions.”

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