Wall Street arbitration system is stacked against investors

Investors have their ups and downs in the market, but when it comes to resolving disputes with Wall Street brokers, they seldom win, according to a critical study to be released next week.

For years investors and their lawyers have complained the little guy doesn’t get a fair shake from the arbitration system, blessed by the US Supreme Court two decades ago, when pursuing complaints about faulty research, unauthorised trades and other claims against brokers.

Next week Daniel Solin, a lawyer who represents investor cases against brokers, and Edward O’Neal, an assistant finance professor at Wake Forest University’s Babcock Graduate School of Management, will unveil the results of a study that they say shows investors have not fared well when taking on brokers.

The duo reviewed 14,000 cases between 1995 and 2004 against brokers that were submitted to arbitration panels convened by the NASD or the New York Stock Exchange. On average, investors recovered about 34% of their claims, they found.
“The vast majority of cases are getting a tiny fraction of what they are entitled to,” Solin said. “In my view, the NASD is largely in the business of protecting the rights of industry members.”

Under the US law, people opening accounts sign an agreement not to sue their broker in court, but instead to take disputes to three-person panels. Solin spoke with Reuters about the study in March, but has declined to comment further ahead of its June 13 release.

“The NASD works to continually improve our forum and the services we provide to our constituents,” a NASD spokeswoman said on Thursday. She said she had not seen the study but was responding broadly to criticism about arbitration. About 94% of the cases were filed with the NASD last year. She said there had been a steady decline of cases going through any actual ruling as more brokerages aim to settle. Since 1991, there has been a 30% rise in the number of cases in which cash was paid through settlement, she said.

The NYSE declined to comment on the study.

The Securities Industry and Financial Markets Association said government and independent studies have shown arbitration to be fair and efficient. The industry lobbying group also knocked the objectivity of Solin, a lawyer, and O’Neal, who has testified as an expert witness in suits against brokerages. “When all you have is a hammer, everything looks like a nail; when you’re a trial attorney, everything looks like a profitable lawsuit,” SIFMA spokesman Travis Larson said.
But arbitration already faces scrutiny. Massachusetts Rep. Barney Frank, the House Financial Services Committee chairman, said in February the fairness of the system was on his agenda. Frank’s committee is “closely monitoring the issue,” both on its own and as part of its review of the pending merger of NASD and NYSE Regulation regulatory bodies, a spokeswoman said on Thursday. No hearings or bills are imminent.

It’s no secret that brokers win most of the cases that go before arbitrators. NASD, the regulatory body formerly called the National Association of Securities Dealers, said in its most recent report that customers won damages 42% of the time. At the NYSE, clients won awards 37% of the time.

The Solin/O’Neal study found the percentage of cases where investors recovered damages fell from 59% in 1999 to 44% in 2004.

The top three brokers - Merrill Lynch, Citigroup’s Citi Smith Barney and Morgan Stanley - paid no damages in all but 38% of cases. The study also found large claims against brokerages, above $250,000, often result in lower recoveries - 10% to 12% of claims. Claims below $10,000 recovered 30 %.

“It is a damage-control process. It protects the industry from the kinds of award that investors would easily obtain if they had the same right to jury trial that other people have,” Solin said. Solin, who is also a registered investment adviser and author of “Does Your Broker Owe You Money?,” said arbitration is flawed because the panels tend to be industry friendly.

Merrill Lynch, the largest brokerage, said the statistics reflect on the weakness of claims and not the process. Other industry sources noted that complaints spiked after the market peaked in 2000 and fell more recently when stocks rebounded.
“Many claims were brought that were inflated, or that had no merit and were filed at the urging of plaintiffs’ lawyers with little securities law experience, who erroneously thought that firms would write checks on those claims,” Merrill said.

Wall Street also contends that data showing low victory rates for investors are misleading, since the lion’s share of cases are settled before arbitration.

NASD, which reports arbitration activity each month, said last year 79% of investor cases were settled, withdrawn or dismissed prior to being decided by arbitrators.
“There are some significant problems with the system that need to be addressed by everyone,” said Steve Caruso, a lawyer and president of Public Investors Arbitration Bar Association. “You have to make it as fair and efficient as you can, but that’s not where the focus is right now.”