(Dow Jones) The Financial Industry Regulatory Authority is taking another crack at the touchy question of how much financial information investors and brokerages have to exchange when a dispute goes into arbitration.
A consensus on the issue may still be a long way off. An earlier proposal of terms for so-called lists of information was withdrawn by FINRA after both sides blasted it. Investor advocates said it would oblige customers to turn over too much personal information, such as years of tax returns, and could discourage claims. Some industry advocates said the terms were too broad and would require them to provide irrelevant information.
The new attempt to revise the terms, which were set in 1999, was filed with the Securities and Exchange Commission on July 12. FINRA believes adjustments were made to reflect criticism of the previous proposal.
"It's a give-and-take document," says Linda Fienberg, president of FINRA Dispute Resolution. "We anticipate lots of comments from those who represent investors and firms."
Investors, under the new proposal, would still be expected to submit certain in-depth information about their financial histories, such as tax returns and loan histories, among other papers. Some requirements are scaled back, however: For example, investors wouldn't have to provide transaction confirmations or documents that illustrate steps that may have been taken to limit losses.
Brokerages could also face expanded scrutiny. They would have to turn over documents related to commissions and compensation when customers allege churning, and certain internal reports in cases that allege a brokerage's failure to supervise its adviser, according to FINRA's regulatory filing.
One key proposed change could ease some burdens for both sides. FINRA uses 14 lists to categorize documents to be exchanged in specific types of disputes. The new proposal would reduce this to two lists.
"Trying to gather documents with all those lists was very burdensome," says Fienberg. Still, the proposed change could mean having to produce more documents overall.
The proposal is a mixed bag for investors, says William Jacobson, director of the Securities Law Clinic at Cornell Law School. "It's expanded some of the categories of documents that brokerages are required to give investors, but that's not to say it can't be made better," he says. "One concern is that it requires an intrusive inquiry into the investors' finances."
Still, Jacobson expects the clinic will support the proposal. "But I would hope in the future that FINRA will take another look at the whole picture," he says.
Arbitrators would be given the discretion to relieve parties of the obligation to provide certain documents. But it's unlikely they'll use that power, says Jonathan Uretsky, a New York-based securities lawyer who represents brokerages. "They will want the documents produced and they'll deal with them later," he predicted.
Uretsky is concerned about a provision that would allow a customer, in cases where he or she believes a brokerage failed to adequately supervise a broker, to examine documents that go beyond those concerned with the customer's own account. Investors could, under the proposal, potentially seek certain internal reports that may cross a broker's desk.
"It would be a huge fishing expedition," he says.
Laurence Schultz, a lawyer in Troy, Mich., also used the same term to describe what the proposal could mean for wronged investors.
That may be the only point on which the two sides can ultimately agree.