[Federal Register Volume 89, Number 166 (Tuesday, August 27, 2024)]
[Notices]
[Pages 68686-68688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19147]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100787; File No. SR-FINRA-2024-008]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Partial Amendment No. 1 and Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change, as Modified by Partial Amendment No. 1, To Amend 
FINRA Rule 12800 (Simplified Arbitration) To Clarify and Amend the 
Applicability of the Document Production Lists

August 21, 2024.

I. Introduction

    On May 13, 2024, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change (SR-FINRA-2024-008) to amend 
FINRA Rule 12800 (Simplified Arbitration) of the FINRA Code of 
Arbitration Procedure for Customer Disputes (``Customer Code''). The 
proposed rule change, as subsequently modified by Partial Amendment No. 
1, would address the applicability of the Document Production Lists \3\ 
to simplified customer arbitrations administered under FINRA Rule 
12800.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ FINRA Rule 12506 (Document Production Lists) describes the 
documents that are presumed to be discoverable in all arbitrations 
between a customer and a member firm or associated person.
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    The proposed rule change was published for public comment in the 
Federal Register on May 28, 2024.\4\ The public comment period closed 
on June 18, 2024. The Commission received comment letters related to 
this filing.\5\ On July 8, 2024, FINRA consented to an extension of the 
time period in which the Commission must approve the proposed rule 
change, disapprove the proposed rule change, or institute proceedings 
to determine whether to approve or disapprove the proposed rule change 
to August 26, 2024.\6\ On August 7, 2024, FINRA responded to the 
comment letters received in response to the Notice and filed a partial 
amendment to modify the proposed rule change (``Partial Amendment No. 
1'').\7\
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    \4\ See Exchange Act Release No. 100204 (May 21, 2024), 89 FR 
46210 (May 28, 2024) (File No. SR-FINRA2024-008) (``Notice'').
    \5\ The comment letters are available at https://www.sec.gov/comments/sr-finra-2024-008/srfinra2024008.htm.
    \6\ See letter from Carissa Laughlin, Principal Counsel, Office 
of General Counsel, FINRA, to Lourdes Gonzalez, Assistant Chief 
Counsel, Division of Trading and Markets, Commission, dated July 8, 
2024, https://www.finra.org/sites/default/files/2024-07/SR-FINRA-2024-008-extension1.pdf.
    \7\ See letter from Carissa Laughlin, Principal Counsel, Office 
of General Counsel, FINRA, to Vanessa Countryman, Secretary, 
Commission, dated August 7, 2024, https://www.sec.gov/comments/sr-finra-2024-008/srfinra2024008-503775-1470022.pdf (``FINRA Response 
Letter''); see also Partial Amendment No. 1, https://www.finra.org/sites/default/files/2024-08/SR-FINRA-2024-008-Partial-A-1.pdf.
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    The Commission is publishing this order pursuant to Section 
19(b)(2)(B) of the Exchange Act \8\ to solicit comments on the proposed 
rule change, as modified by Partial Amendment No. 1, and to institute 
proceedings to determine whether to approve or disapprove the proposed 
rule change, as modified by Partial Amendment No. 1 (hereinafter 
referred to as the ``proposed rule change'' unless otherwise 
specified).
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    \8\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change

A. Background

    FINRA Dispute Resolution Services (``DRS'') provides a Discovery 
Guide to help guide the parties and arbitrators through the discovery 
process in customer arbitrations.\9\ The Document Production Lists, 
which are included in the Discovery Guide and described in FINRA Rule 
12506, outline presumptively discoverable documents that the parties 
should exchange, without arbitrator or DRS staff intervention.\10\
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    \9\ See Notice at 46210; see also https://www.finra.org/sites/default/files/ArbMed/p394527.pdf. The FINRA Discovery Guide and 
Document Production Lists do not apply to arbitrations administered 
under the Code of Arbitration Procedure for Industry Disputes. See 
Notice at 46210 n.3.
    \10\ See Notice at 46210.
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    Document Production Lists 1 and 2 describe the documents that are 
presumed to be discoverable in all arbitrations between a customer and 
a member firm or associated person except in simplified customer 
arbitrations as explained below.\11\ List 1 outlines the documents that 
member firms and associated persons shall produce; List 2 outlines the 
documents that customers shall produce.\12\ The proposed rule change 
would affect the applicability of the Document

[[Page 68687]]

Production Lists in simplified customer arbitrations.
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    \11\ Id.; see also FINRA Rule 12506(a).
    \12\ See Notice at 46210; see also https://www.finra.org/sites/default/files/ArbMed/p394527.pdf.
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    Simplified arbitrations are arbitrations in which the dispute 
between a customer and member firm or associated person involves 
$50,000 or less, exclusive of interest and expenses.\13\ There are 
three types of simplified customer arbitrations. If the customer does 
not request a hearing, the arbitrator will render an award based on the 
pleadings and other materials submitted by the parties (``paper 
cases'').\14\ If the customer requests a hearing, the customer must 
select between one of two hearing options.\15\ If the customer requests 
an Option One hearing under FINRA Rule 12800(c)(3)(A), the regular 
provisions of the Customer Code relating to prehearings and hearings, 
including all fee provisions, apply (``regular hearing'').\16\ The 
customer may also request an Option Two special proceeding, an 
abbreviated hearing, under FINRA Rule 12800(c)(3)(B) (``special 
proceeding'').\17\
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    \13\ See FINRA Rule 12800(a).
    \14\ See Notice at 46210; see also FINRA Rule 12800(c)(2).
    \15\ See Notice at 46210; see also FINRA Rule 12800(c)(3).
    \16\ See Notice at 46210; see also FINRA Rule 12800(c)(3)(A).
    \17\ See Notice at 46210; see also FINRA Rule 12800(c)(3)(B).
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    Currently, the Document Production Lists do not apply in paper 
cases and special proceedings.\18\ However, under FINRA Rule 
12800(g)(1), the arbitrator may exercise discretion to choose to use 
relevant portions of the Document Production Lists in paper cases and 
special proceedings ``in a manner consistent with the expedited nature 
of simplified proceedings.'' \19\ Absent such an exercise of discretion 
by the arbitrator, to obtain discovery in paper cases and special 
proceedings, the parties must request documents and other information 
from each other pursuant to FINRA Rule 12800(g)(2).\20\ Therefore, 
under the current Customer Code, no documents or information are 
presumptively discoverable in paper cases and special proceedings.\21\
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    \18\ See Notice at 46210. FINRA Rule 12800(g)(1) provides that 
the Document Production Lists ``do not apply to arbitrations subject 
to this rule'' (i.e., paper cases and special proceedings). Notice 
at 46210.
    \19\ See Notice at 46210.
    \20\ Id. FINRA Rule 12800(g)(2) provides that all production 
requests must be served on all other parties and filed with the 
Director within 30 days from the date that the last answer is due; 
any response or objection to a production request must be served on 
all other parties and filed with the Director within 10 days of the 
receipt of the request.
    \21\ See Notice at 46210.
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    The Document Production Lists do, however, apply in simplified 
customer arbitrations in which the customer requests a regular 
hearing.\22\ As noted above, if the customer requests a regular hearing 
during the simplified customer arbitration, FINRA Rule 12800(c)(3)(A) 
states that the ``regular provisions'' of the Customer Code ``relating 
to prehearings and hearings'' apply.\23\ FINRA has issued guidance 
clarifying this language to mean that the Document Production Lists 
apply in simplified customer arbitrations in which the customer 
requests a regular hearing.\24\
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    \22\ Id.
    \23\ Id.
    \24\ See Notice at 46210; see also FINRA DRS Party's Reference 
Guide, p. 31, https://www.finra.org/sites/default/files/Partys-Reference-Guide.pdf (explaining that ``[t]he Document Production 
Lists in the Discovery Guide as described in FINRA Rule 12506 do not 
apply to simplified [customer] arbitrations decided on the papers or 
decided by special proceeding. However, the Discovery Guide does 
apply to simplified cases in which a customer requests a regular 
hearing.''). See also https://www.finra.org/arbitration-mediation/simplified-arbitrations. See Notice at 46210 n.11 and accompanying 
text.
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B. The Proposed Rule Change

1. Applying the Document Production Lists in Paper Cases and Special 
Proceedings
    The proposed rule change would amend FINRA Rule 12800(g)(1) to give 
customers in paper cases and special proceedings the option to elect 
whether they want the Document Production Lists to apply to all 
parties.\25\ Specifically, proposed Rule 12800(g)(1)(B) states that the 
Document Production Lists described in FINRA Rule 12506 would not apply 
in paper cases or special proceedings unless: (1) the customer requests 
that they apply at the time he or she initiates an arbitration pursuant 
to Rule 12302 (Filing and Serving an Initial Statement of Claim) or, 
(2) if the customer is a respondent, he or she requests that they apply 
no later than the answer due date pursuant to Rule 12303 (Answering the 
Statement of Claim), regardless of the parties' agreement to extend any 
answer due date.\26\
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    \25\ See Notice at 46211.
    \26\ Id. FINRA Rule 12303 provides that respondent(s) must serve 
each other party with an answer to the statement of claim within 45 
days of receipt of the statement of claim. FINRA Rule 12207(a) 
provides that the parties may agree in writing to extend or modify 
the deadline for serving an answer.
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    If the customer does not timely elect to apply the Document 
Production Lists to all parties as provided, proposed Rule 
12800(g)(1)(B) would retain the current provision in the rule that the 
arbitrator has the discretion to use relevant portions of the Document 
Production Lists in a manner consistent with the expedited nature of 
simplified customer arbitrations. Additionally, proposed Rule 
12800(g)(2) would retain the current provision in the rule that would 
permit the parties to request documents and information from each 
other.\27\
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    \27\ Nothing in the Discovery Guide precludes the parties from 
voluntarily agreeing to an exchange of documents in a manner 
different from that set forth in the Discovery Guide. FINRA 
encourages the parties to agree to the voluntary exchange of 
documents and to stipulate to various matters. See Notice at 46211 
n.19; see also https://www.finra.org/sites/default/files/ArbMed/p394527.pdf.
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2. Clarifying the Applicability of the Document Production Lists in 
Simplified Customer Arbitrations
    Currently, FINRA Rule 12800(c)(3)(A) states that, when a customer 
requests a regular hearing (i.e., an ``Option One'' hearing), the 
``regular provisions'' of the Customer Code relating to prehearings and 
hearings apply. As stated above, DRS has issued guidance clarifying 
this language to mean that the Document Production Lists apply in 
simplified customer arbitrations in which the customer requests a 
regular hearing.\28\ The proposed rule change would codify that the 
Document Production Lists apply to simplified customer arbitrations in 
which the customer requests a regular hearing.\29\ Specifically, 
proposed Rule 12800(g)(1)(A) would provide that ``[t]he Document 
Production Lists, described in Rule 12506, apply to arbitrations in 
which the customer requests an Option One hearing.''
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    \28\ See Notice at 46212; see also supra note 24.
    \29\ See Notice at 46212.
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    Further, to clarify the proposed rule text, Partial Amendment No. 1 
would modify proposed Rule 12800(g)(1)(B) to mirror the language in 
proposed Rule 12800(g)(1)(A) so that both provisions begin with ``The 
Document Production Lists, described in Rule 12506 . . .''.\30\
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    \30\ See Partial Amendment No. 1 and FINRA Response Letter at 2-
3.
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III. Proceedings To Determine Whether To Approve or Disapprove File No. 
SR-FINRA-2024-008 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Exchange Act to determine whether the proposed rule 
change, as modified by Partial Amendment No. 1, should be approved or 
disapproved.\31\ Institution of proceedings is appropriate at this time 
in view of the legal and policy issues raised by the proposed rule 
change, as modified by Partial Amendment No. 1.

[[Page 68688]]

Institution of proceedings does not indicate that the Commission has 
reached any conclusions with respect to the proposed rule change, as 
modified by Partial Amendment No. 1.
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    \31\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission 
is providing notice of the grounds for disapproval under 
consideration.\32\ The Commission is instituting proceedings to allow 
for additional analysis and input concerning whether the proposed rule 
change, as modified by Partial Amendment No. 1, is consistent with the 
Exchange Act and the rules thereunder.
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    \32\ Id.
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IV. Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposed rule change, as modified by Partial Amendment No. 1. 
In particular, the Commission invites the written views of interested 
persons concerning whether the proposed rule change, as modified by 
Partial Amendment No. 1, is consistent with the Exchange Act and the 
rules thereunder.
    Although there do not appear to be any issues relevant to approval 
or disapproval that would be facilitated by an oral presentation of 
views, data, and arguments, the Commission will consider, pursuant to 
Rule 19b-4, any request for an opportunity to make an oral 
presentation.\33\
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    \33\ Section 19(b)(2) of the Exchange Act, as amended by the 
Securities Acts Amendments of 1975, Public Law 94-29, 89 Stat. 97 
(1975), grants the Commission flexibility to determine what type of 
proceeding--either oral or notice and opportunity for written 
comments--is appropriate for consideration of a particular proposal 
by a self-regulatory organization. See Securities Acts Amendments of 
1975, Report of the Senate Committee on Banking, Housing and Urban 
Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 
30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change, as modified by 
Partial Amendment No. 1, should be approved or disapproved by September 
17, 2024. Any person who wishes to file a rebuttal to any other 
person's submission must file that rebuttal by October 1, 2024.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-FINRA-2024-008 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to file number SR-FINRA-2024-008. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change, as 
modified by Partial Amendment No. 1, that are filed with the 
Commission, and all written communications relating to the proposed 
rule change, as modified by Partial Amendment No. 1, between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for website viewing and printing in the Commission's Public 
Reference Room, 100 F Street NE, Washington, DC 20549, on official 
business days between the hours of 10 a.m. and 3 p.m. Copies of such 
filing also will be available for inspection and copying at the 
principal office of FINRA. Do not include personal identifiable 
information in submissions; you should submit only information that you 
wish to make available publicly. We may redact in part or withhold 
entirely from publication submitted material that is obscene or subject 
to copyright protection. All submissions should refer to file number 
SR-FINRA-2024-008 and should be submitted on or before September 17, 
2024. If comments are received, any rebuttal comments should be 
submitted on or before October 1, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12); 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-19147 Filed 8-26-24; 8:45 am]
BILLING CODE 8011-01-P