The Irony of Securities Arbitration Today: Why Do Brokerage Firms Need Judicial Protection?

Abstract:     
In 1987 the securities industry achieved a major victory. Until then, because of the Supreme Court's 1953 holding in Wilko v. Swan that agreements to arbitrate federal securities claims contained in customer agreements were unenforceable, customers could sue brokerage firms and their salespersons in court, frequently before juries amenable to sizable verdicts, including punitive damages.

Illustrating a classic example of “be careful what you wish for,” brokerage firms no longer find arbitration entirely to their liking. Increasingly they turn to the courts to resist arbitration, to interfere with ongoing arbitration, or to undo the results of arbitration.

Unfortunately, both federal and state courts are becoming increasingly involved in the securities arbitration process to the detriment of investors. This Article argues that increased judicial involvement in the securities arbitration process is unwarranted. Although there are legitimate concerns about the use of arbitration to resolve consumer and employment disputes in lieu of litigation, the arbitration process fares well when measured by the components identified as necessary for a fair arbitration. To the extent there are issues about the fairness of the arbitration forums, it is the investor, not the brokerage firm or brokers, who has reason to be concerned.

Number of Pages in PDF File: 41

Keywords: securities, arbitration, judicial involvement

JEL Classification: K22, K29, K41, K49

Accepted Paper Series