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Wronged investors getting raw arbitration deal?

- Alan Lavine and Gail Liberman

Now that times may be tougher for investors, some attorneys warn that the system could leave you up a creek if you're wronged by a broker.

The NASD merged with the New York Stock Exchange last July into a new self-regulatory body, the Financial Industry Regulatory Authority (FINRA).

FINRA's new arbitration cases are up 9 percent this year through March--to 900.

But the percentage of cases where the investor was awarded damages largely has been declining. It went from 49 percent of cases in 2003 to 37 percent of cases in 2007, FINRA data indicate. However, FINRA says that investors receive damages nearly 80 percent of the time when you consider other factors, such as direct settlements.

"The arbitration process has become horrible!" counters Adam Doner, attorney for the Palm Beach Gardens personal injury law firm, Gordon & Doner. "It's literally gotten to be a kangaroo court in favor of the brokerage industry."

Now Doner estimates that he can win about 30 percent of the time, and perhaps collect 25 percent of the damages. "We used to win 60 percent of the time and collect 54 percent of the damages."

Most FINRA arbitration cases deal with common stock, followed by mutual funds. Most common charge: A "breach of fiduciary duty." That means investors believe the person they hired, though obligated to act in their best interests, didn't.

"FINRA is committed to having a forum that is fair and efficient for investors," a FINRA spokeswoman says. The organization, she says, has tightened up on the selection of arbitrators to avert conflicts of interest. It also simplified the process, started posting arbitration awards online and changed subpoena procedures to protect investors.

Yet FINRA, which oversees more than 5,000 brokerage firms and 676,000 registered representatives, often is the only arbitration game in town. It's too early to tell the impact, says Houston securities attorney Debra Hayes.

She blames investor losses on a limited arbitrator pool, which FINRA puts at 6,800.

FINRA fees operate on a sliding scale, based on the amount of the claim. But Hayes says that to file a New York Stock Exchange arbitration case ran her just around $1,000, compared with some $1,500 to file with FINRA.

Yet, there are virtually no other options because investors usually sign mandatory arbitration agreements with their brokers when they open an account.

On the positive side, Hayes says, arbitration cases are getting heard faster--in about one year rather than in 18 months.

What can you do to protect yourself from being wronged by your broker?

  • If you seek liquidity for your investment, put this objective in writing with the broker-dealer's main branch manager, Doner suggests. That way, if your broker put you in an illiquid auction-rate security, for example, you have a well-documented claim.

  • Consider attempting to resolve your dispute directly with your broker. UBS, Doner notes, is one broker-dealer that's particularly good about trying to resolve disputes before a lawsuit is filed.

  • Don't wait too long to contact an attorney. Consumer rights often are eroded due to statutes of limitations, which require that you file a claim within a certain time frame.

  • Ask legislators to support pending legislation that would ban mandatory arbitration clauses.

  • Don't be dissuaded by negative arbitration outcomes. The system may have bumps and blemishes, Hayes says, but you have rights.

  • Read prospectuses and check the background of your broker with your state securities department and at www.finra.org--before you invest.


    Spouses Gail Liberman and Alan Lavine are syndicated columnists. You can purchase Alan Lavine & Gail Liberman's latest book Quick Steps to Financial Stability (QUE Publishing 2006) online at www.moneycouple.com or at your local bookstore. E-mail them at MWliblav@aol.com.

    To read more columns, please visit the column archive.

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