Sunday, November 16, 2008

Securities Arbitration :: The Law Planet Blog

Marc Dobin at The Law Planet comments on a FINRA Arbitration award where the panel not only denied the claims, it also assessed all forum fees against the claimant....and her attorneys.

Marc notes that the outcome is unusual, and it certainly is. It is rare, no, extremely rare for a panel to assess all costs and forums fees against a customer. But it is unheard of to award those fees against the attorneys.

The odd and unusual are always interesting, but the award raises a serious legal question (aside from "what the heck happened at that arbitration?")"is that award enforceable?"

The reality is that arbitration is a creature of contract - without the agreement of all parties to arbitrate, and their consent to have their dispute arbitrated, there can be no arbitration. The arbitrators lack jurisdiction without such an agreement.

Attorneys to the parties to the arbitration are not parties, have not consented to arbitrate anything, and the arbitrators simply do not have the authority to enter any type of award against the attorneys for the parties.

That is not a snub at the authority of arbitrators. I sometimes wish that the panel had the authority to sanction attorneys, but they simply do not have the authority to do so.

FINRA Arbitrators Take a Bite Out of Claimant's Counsel
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