There is a strong policy favoring arbitration, particularly the arbitration of customer claims against securities broker-dealers.
Following the Supreme Courts holding in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987), pre-dispute contracts to arbitrate securities claims are strictly enforceable. Any such claims against brokerage firms or their agents, including claims for punitive damages available under state law, are subject to arbitration in accordance with the Code of Arbitration Procedure.
Arbitration of disputes with broker/dealers has long been used as an alternative to the courts because it is devised as a prompt and inexpensive means of resolving complicated issues. There are certain laws governing the conduct of an arbitration proceeding that must be considered by those planning to use arbitration to resolve the dispute.
Most importantly, perhaps, is the fact that an arbitration award is final and binding, subject to review by a court only on a very limited basis. Parties should recognize, too, that in choosing arbitration as a means of resolving a dispute, they generally give up their right to pursue the matter through the courts.
Arbitration is quick, it is relatively inexpensive, and perhaps most importantly, it provides a forum for the resolution of claims that may otherwise consume scarce judicial resources, (if these matters, particularly arising under the federal securities laws, were heard in federal court).
Because of this federal policy of promoting arbitration as an efficient method of expediting disposition of commercial disputes to eliminate the delay of extended court proceedings preliminary to arbitration, Congress provided in the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4 an abbreviated procedure for obtaining specific enforcement of arbitration agreements. National Railroad Passenger Corp. v Missouri P. R. Co., 501 F2d 423 (8th Cir. 1974)(emphasis added). Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)(The primary purposes of the FAA was the “encouragement of efficient and speedy dispute resolution.”); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967) (“the unmistakably clear congressional purpose that the arbitration procedure be speedy and not subject to delay and obstruction in the courts”); Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265, 278 (1995) (noting that “Congress wrote the Act to help the parties avoid costs and delay through litigation); Preston v. Ferrer, 552 U.S. 346, 357-58 (2008) (“A prime objective of an agreement to arbitrate is to achieve streamlined proceedings and expeditious results.”).
While “any doubt as to whether parties should be ordered to arbitrate is to be resolved in favor of arbitration,” whether a party may be compelled to arbitrate a dispute with another party, the a court must determine: (1) whether there exists a valid agreement to arbitrate and, if so, (2) whether the merits-based dispute in question falls within the scope of that valid agreement. Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005); Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009); John Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 137 (3d Cir.1998).
Courts have long held that because of the liberal policy of promoting arbitration, all doubts of arbitrability are to be resolved in favor of arbitration. Some courts have also held that a party may even be bound by arbitration absent a signature on an agreement. Blashka v. Greenway Capital Corp., 1995 U.S. Dist. LEXIS 15191 at *7 (S.D.N.Y. Oct. 16, 1995)
The Differences Between Arbitration and Court Proceedings
Many practitioners believe that FINRA Arbitration Panels, containing an industry related non-public arbitrator are biased, and that juries may often render more favorable monetary verdicts than arbitration panels.
However actions filed in both state and federal court, are subject to motions to dismiss, and motions for summary judgment, and accordingly, a plaintiff’s claims, based sometime on legal technicalities may never survive or be presented to a jury. In arbitration, however, as stated in the Arbitrators’ Manual, “Equity is justice in that it goes beyond the written law. And it is equitable to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the judge looks only to the law, and the reason why arbitrators were appointed was that equity might prevail.”
However, unlike in state or federal courts where procedure may allow for dismissal based upon the failure to state a claim, or for summary judgment, upon the completion of discovery, Motions to Dismiss are generally disfavored in arbitration. In arbitration, the parties are provided the opportunity to submit pertinent evidence in support of their claims or defenses. See, e.g., British Ins. Co. of Cayman v. Water Street Ins. Co. Ltd., 93 F. Supp. 2d 506, 519 (S.D.N.Y. 2000)(“In sum, it is these facts which would present issues of fundamental fairness if a final award were issued without the development of an additional record on the merits.”)(quoting, Areca v. Oppenheimer & Co., Inc., 960 F. Supp. 52, 54 (S.D.N.Y. 1997)(finding that if an arbitrator refuses to hear material and pertinent evidence, prejudicing one of the parties, the award may be set aside); Konkar Maritime Enterprises, S.A. v. Compagnie Belge D’Affretement, 668 F. Supp. 267, 271 (S.D.N.Y. 1987) (“All parties in an arbitration proceeding are entitled to … an opportunity to be heard [and] must be allowed to present evidence without unreasonable restriction.”)(quoting Totem Marine Tug & Barge, Inc. v. North American Towing, Inc., 607 F.2d 649, 651 (5th Cir. 1979)).
In September 2007, FINRA proposed amendments to Rule 10305 were “designed to limit significantly the number of dispositive motions – more commonly known as motions to dismiss — and to impose “strict sanctions,” including the assessment of “all forum fees” against parties who engage in abusive motions practices.
In September 2008, the Securities and Exchange Commission approved Rule 12206 of the Code of Arbitration Procedure, which became effective January 23, 2009, and which specifically provides that pre-hearing Motions to Dismiss are limited to three circumstances on which to grant the motion: if the parties settled their dispute in writing; “factual impossibility,” meaning the party could not have been associated with the conduct at issue; or the existing 6-year time limit on the submission of arbitration claims.”
In connection with the promulgation of the new Rule, “FINRA emphasize[d] that these exceptions do not constitute an invitation to parties to file motions to dismiss.”
The FINRA Director of Arbitration decides which of FINRA’s hearing locations will be the hearing location for the arbitration based upon the closest hearing location to the customer’s residence at the time of the events giving rise to the dispute, unless the hearing location closest to the customer’s residence is in a different state, otherwise the customer may request a hearing location in the customer’s state of residence at the time of the events giving rise to the dispute.
FINRA offers hearing locations in every region of the country.
In the Northeast region, FINRA offers hearing locations in Albany, NY; Augusta, ME; Boston, MA; Buffalo, NY; Hartford, CT; London, England; Manchester, NH; Montpelier, VT; New York, NY; Newark, NJ; Philadelphia, PA; Providence, RI; Syracuse NY.
In the Western Region, FINRA offers hearing locations in lbuquerque, NM; Anchorage, AK; Boise, ID; Cheyenne, WY; Denver, CO; Helena, MT; Honolulu, HI; Las Vegas, NV; Los Angeles, CA; Phoenix, AZ; Portland, OR; Reno, NV; Salt Lake City, UT; San Diego, CA; San Francisco, CA; Seattle, WA.
In the Southeast Region, FINRA offers hearing locations in Atlanta, GA; Baltimore, MD; Birmingham, AL; Boca Raton, FL; Charlotte, NC; Columbia, SC; Jackson, MS; Jacksonville, FL; Little Rock, AR; Memphis, TN; Miami, FL; Nashville, TN; New Orleans, LA; Norfolk, VA; Orlando, FL; Raleigh, NC; Richmond, VA; San Juan, PR; Tampa, FL; Washington, DC; Wilmington, DE.
In the Midwest Region FINRA offers hearing locations in Bismarck, ND; Charleston, WV; Chicago, IL; Cincinnati, OH; Cleveland, OH; Columbus, OH; Dallas, TX; Des Moines, IA; Detroit, MI; Houston, TX; Indianapolis, IN; Kansas City, MO; Louisville, KY; Milwaukee, WI; Minneapolis, MN; Oklahoma City, OK; Omaha, NE; Pittsburgh, PA; Rapid City, SD; St. Louis, MO; Wichita, KS.
Guiliano Law Group
Our practice is limited to the representation of investors. We accept representation on a contingent fee basis, meaning there is no cost to you unless we make a recovery for you. There is never any charge for a consultation or an evaluation of your claim.
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"First Name I Would Mention"
I had questions and sought a consultation regarding what I believed to have been inappropriate treatment by my brokerage firm. He took the time to give me a clear understanding of what was involved and clearly described next steps to resolve the matter. He did this in a concise, complete and friendly manner. Although in the scheme of things my matter was small. From what I have seen, if I ever had need of a securities lawyer or was asked to refer one to a friend, Nicholas would undoubtedly be the first name I would mention.Keith (Avvo)"Upstanding"
I had a problem with a dishonorable Financial Adviser! So I contacted Mr. Guiliano to see what I could do. Nick said I can't very well charge you for something you can do on your own! Then proceeded to tell me what to do. Because of the short amount of time and my untrustworthy financial adviser's not crossing tee's and dotting I's my life's savings is in the process of being transferred into 3 separate accounts. One's that will work best for me. Instead of one account that kept my money out of my reach! You will have a hard time finding a more upstanding Attorney then Mr. Guiliano!Walter (Avvo)"Successful in Achieving Results"
I was the one who contacted Nick through his website as my ex-wife had little or no knowledge of investments, and depended completely on the advice of the investment firm. Without specifics I can say that Nick (and his wife) were not only successful in achieving results in the case, but in the process were all that one could expect (and more) as shown in my overall ratings above. I would highly recommend him.Joe S. (Avvo)Excellent Attorney!
Nick represented my wife and I in a recent lawsuit. He was the best attorney we have ever used! Communication was great, he kept us updated regularly, he explained everything in great detail, gave us all our options, and most importantly we always felt he represented our best interest throughout the entire process. We would highly recommend Nick!Brian F. (Avvo)"One In A Million"
Nicholas is extremely knowledgeable regarding many facets of the sometimes complicated securities business. This comes from his first hand experience in the business prior to his decision to practice law. Nick is also very dedicated to staying abreast of the ever changing environment that is so prevalent in the investment world. Combine that with his drive and determination to get things done and you have one in a million!!!Anthony S. (Avvo)"Very Good To Work With"
My case was taken on a contingency basis. Even though it lasted about two years, the Guiliano law firm kept in contact with me, continued to research the case and brought it to a successful conclusion. They were very supportive of me in my first such experience and were very good to work with.Nancy T. (Martindale-Hubbell)"Man Of Integrity"
Nick is an incredibly decent Atty. He's a man of integrity, fairness, and honesty. You could see that it's wasn't just me who noticed, it was opposing counsel, at the end of the Zoom! I'm completely impressed with Nick and will keep him in my prayers. Thanks again!Paula (Martindale-Hubbell)"Fights for his clients like a bull dog"
I contacted Nicholas Guiliano for my 90 year old mother, who lives in Oregon to assist her in recovering from an unscrupulous financial manager who talked her into investing in some very high risk and speculative securities to reap high commissions. Mr Guiliano worked very hard to recover what he could for my mother. He is the best and fights for his clients like a bull dog to uphold their rights and protect their interests. I highly recommend Mr Guiliano and his firm when it comes to securities issues.Robert (Google Business)"Finest Litigation Attorneys"
I have been a Corporate Counsel for over 30 years having worked with Banks and large public companies. Nick is one of the finest litigation attorneys in the country.Anthony P. (Google Business)"Best Of The Best"
I have employed Nick Guiliano personally and on behalf of my clients in the past. Nick is absolutely the best securities lawyer in Philly if not the country. The best of the Best!Ken S. (Google Business)"Awesome Results"
I would like to take this opportunity to express my sincere congratulations for your awesome results. I want to acknowledge my appreciation and respect for their splendid professionalism and knowledge you have shown in handling the laws (previous and present), for arbitration over fraud litigations.Ben S. (Google Business)"More than most lawyers"
Mr. Guiliano is highly accomplished securities lawyer. He helped us secure a wonderful result in case where my husband and I lost almost all our lifesavings. He is also high compassionate, and did more than most lawyers have ever done for us, as he seems that he cares.Mary S. (Avvo)"Somebody you want on your side"
Personable and professional, he is the one to go to when investors are defrauded by Brokerage houses and Investment banks. Somebody you want on your side when things go wrong. He takes personal interest in every case and tries his best. Although I could not recover all my losses due to Fed/SEC action which was beyond his control, I would give Mr. Guiliano full marks on every count. He even worked with my accountants to help me write off losses due to fraud.Ashok N. (Avvo)"Superb Representation"
Mr. Guiliano (Nicholas) represented my mother and I in an investment case where it appeared the agent was preying on elderly people and steering them to improper investments to reap commissions. Mr Guilano did an excellent job of preparing the case and representing us. Although the case settled out of court, it was the best outcome expected for several technical reasons out of his control. He always kept us informed and provided sound recommendations. I would not hesitate to recommend Mr. Guiliano for any investment related case.Bob W. (Avvo)"Recommend Him Strongly"
I used Mr. Guiliano for a investment fraud case and he did a very good job. I got a good deal of my money back that had been lost due to risky investments I was put into by a prominent company. It was not a really big case, yet Mr. Guiliano was interested and responsive and kept on top of things for me. I would recommend him strongly.Anne H. (Avvo)"His Ability And Advice Paid Off"
We called Mr. Guiliano after reading his article in Forbes magazine. Although we though the statue of limitations might have run out on our case, we were thrilled when he took our case. Against the odds, he was able to get a settlement for us. He kept us informed and advised us on the proper course of action. We always felt confident with his ability and advice and it paid off. Highly recommend.Cris (Avvo)"Ability To Think Outside The Box"
Nick Guiliano came highly recommended to me and I was very fortunate that he agreed to take my case. His knowledge of the law and his ability to think outside the box amazed me more and more as my case progressed. His aggressive style and total dedication to me and my case gave me the confidence that we were going to prevail and we did. He is one of the few Attorneys that does not finish his work at end of the day. He was always thinking of ways to use his expertise and knowledge on my behalf. On a personal note, he is a very down to earth guy who makes you very comfortable and at ease. He gave me the ability to sleep at night knowing that my case was in his hands. I will always recommend him without any reservations. In my book he is “the Best”Jerry V. (Avvo)"Successful in Winning"
Nicholas Guiliano was successful in winning a case against one of the firms where I had invested. I had a safe investment until a young eager stock broker took over my account and slowly kept putting my money in risky stocks, all while I was on disability. Nick was able to get me a portion of my money back within 2 months. He always was available to speak, and very courteous. I am so grateful to have found Nick. Thank you Nick!Jill I. (Avvo)"Absolutely Fantastic"
Nick represented me when a stock broker took advantage of the money I had in my portfolio. He did an unbelievable job because most people thought I did not have a leg to stand on. He really knows his field. I am really thankful that I met Nick because he did a phenomenal job. I would highly recommend him.Theresa S."Dependable and Accessible"
Philadelphia has lived up to it's reputation as having the best attorneys in the Country. I had been told I had a problem of having a Hedge Fund investment. He went to a lot of time and trouble to not take my case. What I really appreciate is his work ethic. He was very kind to me not only with the generosity of his time, but with his words of support. No civilian, like myself, wants a lawsuit but if I ever needed one, it is Mr, Guiliano who I would call upon to represent me. He is a good man.Kathleen (Avvo)"Incredibly Resourceful"
Nick was incredibly resourceful and professional. His understanding of securities and investment fraud is unparalleled. He is indeed connected with all the powers to be , and is able to provide intellectual and cogent insights. He is tenacious in fighting for his clients, and will never relent. I was able to follow his recommendations and am glad I did.Mark C. (Avvo)"We are so very grateful"
My husband and I were lucky to find Nick after losing a substantial amount of money due to poor investing from a prominent company. He made us feel at ease right away and was always accessible for questions and concerns. Nick and his team were wonderful with gathering up all the pertinent information needed for our case, constantly in contact with us, answering all of our questions, which helped to make the process a lot less stressful. We are so very grateful to have had The Guiliano Law Firm represent us and the fact that they did it on a contingency basis made it possible to follow through. If not for them, we would never have been able to pursue this, financially or emotionally.Stacey B. (Avvo)
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