August 6, 2007
Nancy M. Morris, Secretary
U.S. Securities and Exchange Commission
100 F Street NE
Washington, D.C. 20549-9303
RE: SR-NASD-2007-021: Proposed Amendment to Rule 12100(u) of NASD Code
Ms. Morris,
I represent investors in securities arbitrations. While the NASD proposed amendment to Rule 12100(u) is a step in the right direction to address investor confidence in the fairness and neutrality of NASD’s arbitration forum, it does not go far enough. As the Proposed Amendment itself suggests, its goal is to "provide[e] further assurance to parties that persons who have a relationship with those who receive a significant amount of compensation from the securities industry are not able to serve as public arbitrators in NASD arbitrations." If that is the case, then there is no reason to limit the restriction to fees derived from customer disputes concerning an investment account or transaction. To effectively eliminate the conflict that the NASD has identified, the Proposed Amendment must be revised to apply the disqualification to anyone who receives more than de minimis fees from the securities industry, regardless of the nature of the engagement. Simply put, one who receives substantial fees from the securities industry is not a "public arbitrator," under any fair and reasonable definition or interpretation of those words. Permitting such arbitrators to sit as "public arbitrators" unquestionably creates the conflict and the appearance of bias that this Proposed Amendment rightly seeks to address.
Robert C. Port, Esq.
Cohen Goldstein Port & Gottlieb, LLP