FINRA To Ease Arbitrator Standards In Bonus Cases

(Dow Jones) Arbitration cases involving brokers' signing bonuses are piling up, so Wall Street's regulator has a plan: ease the standards for who can hear the cases.

The Financial Industry Regulatory Authority will seek to reduce the requirements for who can serve on arbitration panels hearing these cases, according to a recent email to FINRA's membership from Richard G. Ketchum, the watchdog's chairman and chief executive.

In a typical case, a brokerage would seek the return of some part of a signing or retention bonus from a broker who switched to another firm. Bonuses are granted as a lump sum tied to a promissory note that is forgiven over time, often five to 10 years. The intent is to tie the brokers to the firm.

Claims filed over unreturned bonuses have more than doubled since 2008, and FINRA is having trouble finding enough arbitrators who meet the current standards, wrote Ketchum, whose email appears on FINRA's website. Right now, arbitrators who hear bonus cases must, among other things, be lawyers with 10 years of experience and have a familiarity with employment law. They also must be qualified to chair a standard arbitration panel, which means they have completed special FINRA training and served on at least two panel cases that reach a final ruling.

FINRA's plan, however, would allow for arbitrators who aren't lawyers to hear these cases and who don't have employment law experience. They still would need to be chair-qualified; for non-lawyers FINRA requires training and serving in three cases that reach a ruling.

"The proposal ensures that FINRA has a sufficient number of qualified arbitrators readily available," wrote Ketchum in the email, which was dated Dec. 9.

FINRA's plan would continue to require that only "public" arbitrators, or those who aren't affiliated with the securities industry, hear bonus cases. It hasn't yet filed the proposal with the Securities and Exchange Commission, which would have to approve it.

Widening the pool of potential arbitrators who hear bonus cases makes sense, and lowering the standards shouldn't have a negative effect, many securities lawyers said. Cases that focus solely on unpaid promissory notes are straightforward contract disputes that don't require vast legal know-how, they said.

Lawyers with employment expertise are more appropriate for cases about signing bonuses that involve other issues, such as an advisor who is terminated, they say.

"Given volume of claims, I don't see this as a bad thing," said Luigi Spadafora, a securities lawyer for Winget, Spadafora & Schwartzberg, LLP in New York. He would prefer the expertise of an employment lawyer, however, if the claim becomes more complicated during the process, he said, calling the plan a "necessary evil."

This year, brokerages have filed nearly 1,100 bonus cases through Dec. 12, according to FINRA. There were 415 cases filed in 2008.

The increase doesn't necessarily signal that more brokers are leaving firms, but that a higher percentage who do leave are tethered by promissory notes they signed when accepting a signing or retention bonus, said Andy Tasnady, a financial services industry compensation analyst in Port Washington, N.Y.

Brokerages that undergo mergers, in particular, are offering more retention bonuses with terms requiring the broker to stay for as long as seven years, instead of three, once the standard, Tasnady said.

There is a common misconception among advisors that brokerages will negotiate the balance, and that is contributing to the increase in the number of cases, said Thomas Lewis, a securities lawyer for Start & Stark in Lawrenceville, N.J. "There's a notion among brokers that firms will take fifty-cents on the dollar," he said. "Firms want a hundred percent," he said.