Read about Mr. Robbins Commentaries to New Yorks statute book

Publishing since 1988 (Mar. ’13)

ISSN: 1041-3057

Securities Arbitration Commentator

Vol. 2012 No. 4


The New York Practitioner’s Guide to Securities Arbitration and Mediation
David E. Robbins, Practice Commentaries at N.Y. Gen. Bus. Ch. 20, Art. 23-A, (McKinney 2012)

Review by Theodore Krebsbach, Murphy & McGonigle, P.C.

An Arbitration Tour de Force David E. Robbins has worn many securities arbitration “hats” during his career and is one of the most respected professionals in this arena. Countless practitioners know Mr. Robbins from his days as the AMEX Director of Arbitration; for his authorship of the Securities Arbitration Procedure Manual, and for the many years he chaired the Practising Law Institute Securities Arbitration program. In his spare time, he serves as arbitration counsel to both investors and securities industry professionals, and as an arbitrator, mediator, lecturer and author of publications, including the McKinney’s Securities Arbitration Practice Commentaries, which have been published annually for the past 18 years.

Now, for the first time, Mr. Robbins’ Practice Commentaries have been collected in a hard-bound book published by McKinney’s that will serve as a primary reference for experienced, novice and pro se practitioners, as well as neutrals and those simply interested in a fascinating historical tour of a process that has undergone remarkable changes over the past decades.

Mr. Robbins takes great pains to present the subject matter objectively – no easy task – and has updated his earlier Practice Commentaries so that subsequent developments a represented in a readable fashion and historical context. He has a unique ability to draw the reader into a topic by mixing discussions of case law, rules and procedures with interesting anecdotes and practice tips that address the practical concerns of all participants in the process, including the arbitrators.

Securities arbitration practitioners who are relatively new to the process may assume that the current law and procedures have been somewhat constant over the years. Just the opposite is true, and Mr. Robbins in his 1995 Commentary takes us on a nostalgic trip down memory lane, starting with the inception of NYSE arbitration in the 1800’s to the I960’s, when securities arbitration first gamed traction as a means of resolving investor-member disputes through the pioneering efforts of Philip J. Hoblin, Jr. (former General Counsel of Shearson) and William Fitzpatrick (former General Counsel of the Securities Industry Association).

It was not that long ago that investor cases were heard by five-arbitrator panels at the NYSE, NASD and AMEX, each with its own procedural rules, and even large and complicated cases might finish in a few days. Mr. Robbins takes us back to when: pre-dispute agreements to arbitrate federal securities law claims were unenforceable against investors (leading to concurrently pursued claims in federal court and arbitration); punitive damages were not recoverable; parties did not participate in the selection of arbitrators; and the expertise of an “industry” panelist was considered an indispensable part of the process rather than as .evidence of possible bias. Believe it or not, there was a time when Discovery Lists did not exist; where 20-Day exchange of documents and witness names was unknown, and where electronic discovery was a not a concern, as email had not yet come to exist.

But the primary focus of the Practice Commentaries is current securities arbitration law and procedure, and Mr. Robbins shines when he focuses on specific areas of substantive law and procedure and draws on his broad experience to provide useful practice tips. For example, the 1995 Commentary provides a timeless analysis of claims that succeed and do not succeed in arbitration, and suggestions for drafting persuasive arbitration pleadings (hint: think the Opposite of litigation pleadings). The2006 and 2010 Commentaries contain helpful updates. In the 1997 Commentary, Mr. Robbins provides a useful and practical analysis of the Mediation process that he updates in later commentaries. His 2002 Commentary analyzes “selling away” cases and the rules and practice relating to enforcement of arbitration Awards. Also noteworthy are sections in the 2007 and 2008 Commentaries that address arbitrator-specific issues, such as arbitrator standards, case management, conduct unbecoming an arbitrator, and a step-by-step guide for removing arbitrators for improper conduct.

Having almost two decades of Practice Commentaries in one place enables the reader to trace the evolution of securities arbitration. Sometimes that evolution is gradual; other times more sudden. One example of the latter is recent changes to the rules governing “suitability,” a concept that appears in one form or another in most investor disputes. The 2013 Commentary examines fundamental changes in Rule 2111 implemented by FINRA last year, along with companion Regulatory Notice 12-25. The impact of Rule 2111, with its definitions of “reasonable basis suitability,” “customer-specific” suitability and “quantitative suitability,” and suitability obligations tied to recommendations to “hold” securities and those based on a customer’s overall portfolio (including investments held at other firms), is in its early developmental stage. Expect updates from Mr. Robbins in future Practice Commentaries.

Mr. Robbins addresses all recent material changes with timely updates and practical advice. For example, the 2011 and2012 Commentaries address FINRA’s new and expanded Discovery Lists and electronic discovery developments, including difficulties faced by arbitrators in balancing relevance, accessibility and cost concerns when dealing with complicated issues related to retrieval of emails, word-processing files and databases. The 2010 and 2012 Commentaries analyze recent changes in rules and practice related to expungement, including expungement for individuals who are not parties to the arbitration.

Finally, in the 2012 Commentaries, Mr. Robbins addresses the most recent FINRA Arbitrator’s Guide, analyzing the difficult issues faced by arbitrators, and providing reasonable ways for dealing with them that should be required reading for both arbitrators and practitioners.

In sum, the New York Practitioner’s Guide to Securities Arbitration and Mediation is an invaluable addition to the library of securities arbitration practitioners, arbitrators, mediators and anyone who wants to be current on the latest developments in this ever-changing area of practice.