[Federal Register Volume 62, Number 176 (Thursday, September 11, 1997)] [Notices] [Pages 47856-47857] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-24135] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-39024; File No. SR-NASD-97-52] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Order Granting Approval to Proposed Rule Change Relating to Extension of the Large and Complex Case Rule and Making Application of the Rule Voluntary September 5, 1997. I. Introduction On July 22, 1997.\1\ the National Association of Securities Dealers, Inc. (``NASD'' or ``Association'') submitted to the Securities and Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')\2\ and Rule 19b-4 thereunder,\3\ a proposed rule change to amend Rule 10334 of the NADS's Code of Arbitration Procedure (``Code'') to extend the effectiveness of Rule 10334 to August 1, 2002, and to make application of Rule 10334 voluntary. --------------------------------------------------------------------------- \1\ The NASD filed Amendment No. 1 to the proposed rule change on July 25, 1997, the substance of which was incorporated into the notice. See letter from Elliott R. Curzon, Assistant General Counsel, NASDR, to Katherine A. England, Assistant Director, Market Regulation, Commission, dated July 25, 1997 (``Amendment No. 1''). \2\ 15 U.S.C. 78s(b)(1). \3\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- Notice of the proposed rule change, together with the substance of the proposal, was published for comment in Securities Exchange Act Release No. 38879 (July 28, 1997), 62 FR 41454 (August 1, 1997). No comments were received on the proposal. This order approve the proposed rule change. II. Description Rule 10334 provides special procedures for large and complex cases.\4\ Any claim where the amount in controversy is $1 million or more, or where all parties agree, is eligible for disposition under the procedures. --------------------------------------------------------------------------- \4\ The rule, in pilot form, became effective for one year on May 2, 1995, was extended to August 1, 1996, extended again until August 1, 1997, and temporarily extended until approval of this rule proposals. See Securities Exchange Act Release Nos. 35314 (February 1, 1995), 60 FR 7241 (February 7, 1995) (original approval of pilot program); 37154 (April 30, 1996), 61 FR 20301 (May 6, 1996) (temporary extension until August 1, 1996); 37513 (August 1, 1996), 61 FR 41438 (August 8, 1996) (exentsion until August 1, 1997); and 38879 (July 28, 1997), 62 FR 41454 (August 1, 1997) (temporary extension). --------------------------------------------------------------------------- Currently, Rule 10334 requires that the parties in any eligible case participate in an administrative conference with a member of the staff of the Office of Dispute Resolution (``Office''). The purpose of the conference is to permit the parties and staff to develop a plan for administering the case, including planning for discovery and narrowing the issues to be decided at the hearing. Application of all other provisions of the Rule to a case is completely voluntary. Rule 10334 was developed to meet the special needs of parties in large and complex cases, including the need for arbitrators with particular experience and the need in some cases for additional discovery, including the availability of depositions. NASD Regulation's experience in the two years that Rule 10334 has been effective is that few parties use the procedures. From May 2, 1995 until January 28, 1997, 880 cases were eligible for treatment under Rule 10334. Parties agreed to proceed under Rule 10334, however, in only 43 cases. [[Page 47857]] NASD Regulation has found that parties are deterred from using these procedures by the extra compensation paid to arbitrators and the additional administrative fees required under Rule 10334. At the same time, NASD Regulation found that one of the most attractive aspects of Rule 10334 is the availability of a list selection procedure for the appointment of arbitrators, which is not yet generally available for other types of arbitration cases. In addition, the attractiveness of the procedures may be affected by the required administrative conference with the staff. This conference may be beneficial in assisting the parties to develop a road map for a proceeding, even if the parties to not agree to use other procedures under Rule 10334. However, the requirement that the administrative conference be conducted in all cases over $1 million, regardless of whether the parties plan to proceed under Rule 10334, creates a cost burden to the parties and to the Office. Accordingly, NASD Regulation is proposing to amend Rule 10334 to provide for an administrative conference with the staff only if all parties request such a conference in writing. The procedures will be available if the parties voluntarily agree to proceed with an administrative conference and to develop a written agreement to proceed under Rule 10334. An administrative conference will, however, continue to be a prerequisite to the use of the special procedures provided by Rule 10334. In addition, NASD Regulation is proposing to amend Rule 10334 to extend the Rule for five more years to August 1, 2002. III. Discussion The Commission believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act \5\ in that extending the effectiveness of the procedures for large and complex cases and making their use entirely voluntary will serve the public interest, by enhancing the satisfaction and perceived fairness of such proceedings by the parties to the proceedings.\6\ The Commission notes that providing for a five-year extension of the pilot program will permit arbitration participants to continue to utilize the procedures. In addition, an extension of the pilot program will allow the NASD to gather additional data on the program and to continue to monitor the usefulness of the large and complex rule to arbitration parties, in order to see if the pilot program should be approved on a permanent basis. --------------------------------------------------------------------------- \5\ 15 U.S.C. 78o-3. \6\ In approving this rule, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). --------------------------------------------------------------------------- The Commission also believes that amending Rule 10334 to provide for an administrative conference with the staff only if all parties request such a conference in writing \7\ is reasonable under the Act because the elimination of the requirement for an administrative conference in all cases should result in reduced costs to the parties and to NASD Regulation. The Commission also notes that an administrative conference will continue to be a prerequisite to the use of the special procedures provided by Rule 10334. --------------------------------------------------------------------------- \7\ The procedures will be available if the parties voluntarily agree to proceed with an administrative conference and to develop a written agreement to proceed under Rule 10334. --------------------------------------------------------------------------- IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,\8\ that the proposed rule change (SR-NASD-97-52) is approved, through August 1, 2002. \8\ 15 U.S.C. 78s(b)(2). --------------------------------------------------------------------------- For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\9\ --------------------------------------------------------------------------- \9\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Margaret H. McFarland, Deputy Secretary. [FR Doc. 97-24135 Filed 9-10-97; 8:45 am] BILLING CODE 8010-01-M