Mutual Release and Settlement Agreement - Appendix 7C - Securities Arbitration: Practice and Forms

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Securities Arbitration: Practice and Forms - Looseleaf

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APPENDIX 7C
Mutual Release and Settlement Agreement
This MUTUAL RELEASE AND SETTLEMENT AGREEMENT (“Agreement”) is entered
into by ______ (“Claimant”), on the one hand, and ______ (“Broker-Dealer”) and ______
(“Broker”), on the other hand, with reference to the following facts:
On or about ______, a Statement of Claim was filed before the FINRA Dispute Resolution
styled “______ v. ______,” Case No. ______, (“the Action”).
[Broker-Dealer] and [Broker] dispute the above claims of Claimant as contained in the
Statement of Claim filed in the above action.
The parties now desire to settle, compromise, and resolve all of the differences, disagreements,
and disputes which exist or may exist between [Broker-Dealer] and [Broker], on the one hand,
and Claimant, on the other hand, arising out of the subject matter of the Action.
OPERATIVE TERMS
1. Dismissal with Prejudice.
It is further understood and agreed that Claimant, his heirs and assigns forever, agree and
covenant to cause their representative to execute and have filed a Notice of Dismissal, with
prejudice, of [Broker-Dealer] and [Broker] arising out of or pertaining to the subject matter of the
Action.
2. Settlement Amount.
[Broker-Dealer] shall pay the sum of $[______] to Claimant on or before [date], by [check,
wire transfer, etc.] payable to [Claimant and/or his attorney].

Full Table of Contents From "Securities Arbitration"

PART I: SECURITIES ARBITRATION

Chapter 1 The Regulatory Framework of Securities Arbitration

1.01 Introduction: A History of Securities Arbitration
1.02 Background: SEC Oversight of the SRO Arbitration Programs
1.03 Relationship of SRO Arbitration Programs and SRO Disciplinary
Departments
1.04 The Late 1980s Changes
1.05 The Arbitration Policy Task Force: Recommendations and Results
1.06 Other Projects To Improve Securities Arbitration
1.07 Use of Predispute Arbitration Clauses By the Securities
Industry in Agreements with its Customers
1.08 Federal and State Legislative Attention to Securities
Industry Arbitration

Chapter 2 Jurisdiction

2.01 Introduction
2.02 The Appropriate Arbitral Forum
2.03 Statute of Limitations

Chapter 3 The Arbitration Agreement

3.01 Introduction
3.02 Existence of the Arbitration Agreement
3.03 Scope of the Arbitration Agreement
3.04 Waiver
3.05 Practitioner's Checklist

Chapter 4 Determining Whether To Arbitrate or Litigate

4.01 Introduction
4.02 Availability of the Arbitration Alternative
4.03 The Choice Between Arbitration and Litigation:
Applicable Rules of Decision
4.04 The Choice Between Arbitration and Litigation: Decision Making "Style"
4.05 The Choice Between Arbitration and Litigation: Procedural Differences
4.06 The Decision To Arbitrate or Litigate: Miscellaneous Differences

Chapter 5 Compelling or Resisting Arbitration

5.01 Compelling and Resisting Arbitration
5.02 Substantive and Procedural Law Governing Arbitrability
5.03 Federal Arbitration Act
5.04 Procedure To Compel Arbitration
5.05 Jurisdictional Issues in Obtaining an Order To Compel Arbitration
5.06 Elements of Petitioner's Case
5.07 Elements of Respondent's Case
5.08 Is the Dispute Rendered Non-Arbitrable for Public Policy Reasons?
5.09 Stay of Litigation Under Section 3 Where Civil Action Is Already
Pending in State or Federal Court
5.10 Interaction of Sections 3 and 4
5.11 When a Lawsuit Presents Arbitrable and Non-Arbitrable Claims;
The Intertwining Doctrine
5.12 Sanctions Against Losing Party on Motion To Compel
Arbitration or Stay Judicial Proceeding
5.13 Appealability of Grant or Denial of Order Compelling Arbitration
5.14 Discovery in Aid of Proceeding To Compel Arbitration
5.15 Judicial Relief Pending and in Aid of Arbitration

Chapter 6 Commencing an Arbitration Proceeding

6.01 Introduction
6.02 Representation Issues
6.03 Rules for Commencing an Arbitration
6.04 Selecting the Arbitration Forum
6.05 Location of the Arbitration
6.06 Initiating the Arbitration
6.07 Answering the Complaint
6.08 Counterclaims, Cross-Claims, and Third Party Claims
6.09 Joinder, Consolidation and Severance

Chapter 7 Pre-Hearing Matters

7.01 Selection of Arbitrators
7.02 Discovery
7.03 The Importance of the Discovery Guide Documents and Additional Documents
7.04 Initial Pre-hearing Conference
7.05 Pre-Hearing Motions
7.06 Location of Hearings

Chapter 8 The Conduct of the Hearing

8.01 Background
8.02 When Hearings Are Not Required
8.03 Failure of a Party To Appear
8.04 Who May Attend the Hearing
8.05 The Creation of a Record
8.06 Burden of Proof
8.07 Order of Proceedings
8.08 Reopening Hearings
8.09 Motion for Reconsideration
8.10 Rules of Evidence
8.11 Testimony
8.12 Documentary Evidence
8.13 Adjournments
8.14 The Arbitrators as Judges

Chapter 9 Remedies and Damages

9.01 Introduction
9.02 Damages
9.03 Equitable Relief
9.04 Expungement
9.05 Disciplinary Referrals

Chapter 10 The Award

10.01 The Deliberative Process
10.02 Form of Award and Contents
10.03 Public Availability of Awards
10.04 Res Judicata and Collateral Estoppel
10.05 Stare Decisis
10.06 Post-Award Contact with Arbitrators

Chapter 11 Enforcing or Appealing an Arbitral Award

11.01 Introduction
11.02 Forum and Venue Issues
11.03 Enforcing the Award
11.04 Challenging the Award

Chapter 12 Mediation: An Alternative to Arbitration

12.01 Introduction: What is Mediation?
12.02 History of Mediation in the Securities Industry
12.03 The Benefits of Mediation
12.04 The Mediation Process
12.05 The Future of Mediation
PART II: LAW AND RULES

Source 1-Arbitration and Mediation Forums

Source 2-Federal Arbitration Act

Source 3-NASD Code of Arbitration Procedure

Source 3A-Arbitration Procedure for Customer Disputes

Source 3B-Arbitration Procedure for Industry Disputes

Source 3C-Mediation Procedure

Source 3D-Comparison Chart of Old and New Arbitration Codes for Customer Disputes

Source 4A-FINRA Dispute Resolution Party's Reference Guide-National Edition

Source 4B-FINRA Dispute Resolution Party's Reference Guide-Simplified

Source 5-New York Stock Exchange Arbitration Rules

Source 6-Chicago Board Options Exchange Arbitration Rules

Source 7-Securities Industry Conference on Arbitration Uniform Code of Arbitration

Source 8-The Arbitrator's Manual

Source 9-Securities Arbitration Supplementary Procedures

Source 10-Commercial Arbitration Association Commercial Dispute Resolution Procedures

Source 11-JAMS Comprehensive Arbitratino Rules and Procedures

Source 11A-Procedures for Securities Arbitrations Administered by JAMS under the Securities Industry Conference on Arbitration Non-SRO Pilot Program

Source 12-Securities Industry Conference on Arbitration Proposal for a Pilot Program for Non-SRO-Sponsored arbitration Alternatives

Source 13-Uniform Submission Agreement-Claimant & Respondent Forms

PART III: PLEADINGS AND FORMS

Appendix 1: Arbitration Agreements

Appendix 1A: Sample Customer's Agreement

Appendix 1B: Arbitration Agreement from Clearing Agreement

Appendix 1C: Excerpt from Form U-4 with Arbitration Provision Highlighted

Appendix 2: Compelling and Resisting Arbitration

Appendix 2A: Letter Demanding Arbitration and Requesting that Civil
Action Be Withdrawn

Appendix 2B: Memorandum of Law in Support of Motion To Compel
Arbitration and To Stay Action

Appendix 2C: Verified Petition For An Order Compelling Arbitration and Staying Proceedings

Appendix 2D: Court Order Granting Motion To Compel Arbitration

Appendix 3: Commencing the Arbitration Proceeding:Submission Agreements/Statements of Claim

Appendix 3A: Special Procedures for California Cases: FINRA Dispute Resolution Guidelines for Compliance

Appendix 3B: Special Procedures for New Jersey Cases: FINRA Dispute Resolution Guidelines and FAQ's for New Jersey Cases Involving Out-of-State Attorneys

Appendix 3C: Letter Submitting Customer Dispute to Arbitration

Appendix 3D: Claim Information Sheet

Appendix 3E: Statement of Claim

Appendix 3F: FINRA Arbitration Uniform Submission Agreement

Appendix 3G: FINRA Deficiency Letter Regarding Commencement

of Arbitration Proceeding

Appendix 3H: Letter to FINRA Requesting Consolidation of Claims

Appendix 3I: FINRA Request for Response to Letter Requesting
Consolidation of Claims

Appendix 3J: NYSE Letter Serving Statement of Claim

Appendix 3K: FINRA Letter Serving Statement of Claim

Appendix 3L: FINRA Letter Regarding Arbitrator Selection Process

Appendix 3M: NYSE Letter Regarding Arbitrator Selection Process

Appendix 4: Answers, Counterclaims, and Third Party Claims

Appendix 4A: Respondent Counsel's Letter (Answer) to AAA Denying
Petitioner's Claims

Appendix 4B: Answer in Paragraph Pleading Form (Includes Affirmative Defenses)

Appendix 4C: Answer in Form of Letter

Appendix 4D: Answer in Narrative Form

Appendix 4E: Counterclaim and Third Party Claim

Appendix 4F: FINRA Dispute Resolution Letter That Pleadings Are Complete, Panel Composition, etc.

Appendix 4G: FINRA Certificate of Service Form

Appendix 5: Pre-Hearing Discovery and Motion Practice

Appendix 5A: FINRA Pre-Hearing Conference Scheduling Letter

Appendix 5B: FINRA Dispute Resolution Letter Announcing Pre-Hearing Conference, Evidentiary Hearing and Other Issues

Appendix 5C: FINRA Dispute Resolution Letter Regarding Procedure For Direct Communication

Appendix 5D: FINRA Dispute Resolution Case Information Sheet

Appendix 5E: AAA Letter Selecting Arbitrator

Appendix 5F: AAA Preliminary Hearing Calendar Form

Appendix 5G: AAA Stipulation Regarding Direct Written Communication with Arbitrators

Appendix 5H: AAA Letter and Arbitrator Order Regarding Preliminary Hearing

Appendix 5I: AAA Letter and Notice of Preliminary Hearing

Appendix 5J AAA Notice of Arbitration Hearing
Appendix 5K: Claimant's Information and Document Request: Customer Complaint
Appendix 5L Respondent's Information and Document Request: Customer Complaint
Appendix 5M Respondent's Document and Information Request: Intra-Industry Dispute

Appendix 5N Claimant's Response to Respondent’s Request for Documents

Appendix 5O Claimant's Response to Respondent’s Request for Information

Appendix 5P AAA Form-Claimant's Response to Respondent’s Request for Production of Documents and Information

Appendix 5Q NYSE Respondent's Response to Request for Information/Documents

Appendix 5R FINRA Respondent's Response and Objections to Request for Production of Documents

Appendix 5S AAA Respondents' Responses to Request for Documents

Appendix 5T Counsel's Letter to FINRA Requesting Arbitration Panel to Direct Non-Party to Produce Documents

Appendix 5U FINRA Third Party Subpoena To Respondent’s Former Employees Regarding Document Production

Appendix 5V Motion to Compel Production of Information and Documents

Appendix 5W Motion to Dismiss (or, in the Alternative, Answer)

Appendix 5X Counsel's Request for Appearance of Witnesses and Production of Documents at Hearing

Appendix 5Y Counsel's Notice of Witnesses Who Will Be Present and Documents to be Presented at Hearing

Appendix 5Z Confidentiality Agreement Concerning Discovery

APPENDIX 6: POST-HEARING BRIEFS

Appendix 6A AAA Claimant's Post-Hearing Statement

Appendix 6B AAA Respondent's Post-Hearing Brief

APPENDIX 7: SETTLEMENT PROCEDURES

Appendix 7A FINRA Letter Acknowledging Settlement

Appendix 7B AAA Letter Acknowledging Settlement

Appendix 7C Mutual Release and Settlement Agreement

APPENDIX 8: ARBITRATORS’ AWARDS

Appendix 8A FINRA Award Form

Appendix 8B AAA Award Form

Appendix 8C CBOE Arbitrators' Award Form

APPENDIX 9: MEDIATION

Appendix 9A FINRA Request for Mediation

Appendix 9B FINRA Mediation Submission Agreement

Appendix 9C FINRA Mediator Selection Letter

Appendix 9D FINRA Confirmation Letter to Mediator

Appendix 9E FINRA Mediation Session Confirmation

Appendix 9F American Arbitration Association Submission to Dispute Resolution

Appendix 9G JAMS Securities-Related Disputes Mediation Submission Form

Appendix 9H Standard JAMS Securities Mediation Agreement

W. Reece Bader is a Partner in the Frankfurt office of Orrick and is a member of the Securities Litigation/Regulatory Group. Prior to moving to the Frankfurt office in 2008, Mr. Bader was located in the firm's Paris, Washington, D.C, Silicon Valley, New York and San Francisco offices. He has concentrated his practice in the area of securities and futures litigation since 1970. He has extensive experience, including substantial jury and non-jury trial work in broker-dealer litigation including securities, commodities and public finance. He also handles appellate matters and has represented the Securities Industry Association as amicus curiae in broker-dealer litigation. He has acted as lead defense counsel in complex class actions involving initial public offerings and derivative suits, both on behalf of underwriters, companies and officers and directors. He also regularly represents broker-dealers and individuals in both SEC and SRO enforcement actions. Mr. Bader has argued cases before the D.C., Second, Third, Ninth and Federal Circuits. He serves as an arbitrator for FINRA, NYSE and NFA, and the Center for Public Resources (Distinguished Neutrals Panel). He is a former member of the National Arbitration and Mediation Committee of the NASDR, past Co-Chair of the Securities Litigation Committee, and past Co-Chair of the Alternative Dispute Resolution Committee of the ABA's Litigation Section. Mr. Bader is a frequent lecturer and panelist for such organizations as the Practising Law Institute, ALI/ABA, FINRA and the Securities Industry and Financial Markets Association.