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Update - May 2017
June 1, 2017
This month, I write with concern about an issue that I expected to never see or hear of again. One of our members discovered that an attorney had listed him as an in an upcoming case. This would not be newsworthy, but for the fact that the expert was entirely unaware of the case. This is what is referred to as a “Phantom Retention.” It is an unethical practice, and expressly opposed by FINRA.
The reason that I expected to never again see or hear of a Phantom Retention, is that it is an unethical practice that has been expressly opposed by FINRA. Back in 2014, SER Past President Stuart Ober canvassed our membership and found repeated instances in which attorneys had listed our members as experts on their cases without those experts’ permission or knowledge. This led to a letter to FINRA, asking for FINRA to expressly prohibit Phantom Retentions (for more details see our Advocacy section). FINRA placed this topic in front of its Task Force, which included it in its first set of recommendations. Consequently, FINRA updated the Initial Prehearing Conference script and sent several letters to parties to address this issue. FINRA also published an article on this topic, written by Ryan Bakhtiari and Greg Curley, in The Neutral Corner. Here is a link to the article.
That Phantom Retentions continue, despite FINRA’s admonitions, informs me that it is time to once again canvass the membership to find out if anyone else has become aware of being listed in a Phantom Retention since 2014. If so, please contact Stuart Ober at email@example.com or (845) 679-2300.
I am also interested in potential solutions. Since FINRA has segued to the electronic portal, it seems reasonable to require that experts’ contact information be given to FINRA with the witness list. FINRA could then automatically generate a verification e-mail to the experts listed in each upcoming hearing. This could prevent Phantom Retentions, particularly since experts would report them directly to FINRA. If you have any other ideas or potential solutions, please send them to Stuart as well.
The Securities Experts Roundtable has a long and consistent record of working with FINRA to improve its arbitration process. I firmly believe that FINRA is committed to prohibiting and preventing abuses and unethical practices, and will be open to hearing and acting on our continued input on these matters.
Respectfully, Jeffery Schaff, President
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