Not too long ago, I wrote a piece complaining about (among other things) the fact that the potential arbitrators that FINRA rolled out to the parties in a particular arbitration I was handling skewed juuuuuuust a bit towards the older end of the age spectrum; indeed, the average age of the ten potential chairpersons was 75.3 (and seven of the ten were, in fact, 75 or older). I have nothing against these guys, or any old person. My point was simply that when it comes to diversity, FINRA arbitration panels are conspicuously old, white, and male.
Anyway…as I was catching up on recent FINRA publications, I ran across Reg Notice 22-09, “FINRA Requests Comment on a Proposed Rule to Accelerate Arbitration Proceedings for Seriously Ill or Elderly Parties.” As the title suggests, FINRA is considering conjuring up some new procedural rules to increase the likelihood that an elderly or infirm claimant can “participate meaningfully in a FINRA arbitration” by shortening a bunch of the deadlines, theoretically resulting in a final evidentiary hearing that happens sooner than under the current rules.
Putting aside the questions whether this is a good or bad idea, I simply cannot help but relish the irony in the juxtaposition of my recent blog post and some of things that FINRA says in this Reg Notice about old people.
According to FINRA’s proposal, any claimant who is 75 or older can take advantage of the expedited procedures. While FINRA takes great pains not simply to declare that anyone who’s 75 is necessarily at death’s doorstep, it is quite clear that FINRA does have grave concerns about these septuagenarians. Citing published mortality tables, FINRA posits that “[p]arties who are 75 or older are significantly more likely to become unable to participate in a hearing after a claim is filed than those who are 65 or older, as demonstrated by published rates of adverse health conditions and mortality.” In other words, once you hit 75, given your “relatively higher average mortality rates,” you have a statistically greater chance of not living long enough, or not staying cogent enough, from the day you file your Statement of Claim through the hearing to be able to participate in it. Morbid stuff, to be sure.
So, you can see where I’m going with this. If FINRA is so concerned about the ability of claimants who are 75 and older to participate in the hearing, I can’t help but wonder why FINRA apparently has zero qualms about populating its arbitration panels with candidates with the exact same demographics. I mean, it simply has to cut both ways, right? If hitting 75 means, statistically speaking, that you’ve entered some strange and dangerous territory that renders into question your ability to keep your wits about you, not to mention simply surviving the rigors of being cross-examined by smart ass lawyers like me, then logic dictates that the same concerns apply to arbitrators, no? Seems to me that FINRA cannot have it both ways. It should, therefore, take a hard look at its roster of arbitrators to figure out who is still up to the task of handling an arbitration hearing.