FINRA’s Office of Dispute Resolution Services (“DRS”) has again administratively postponed all in-person arbitration and mediation hearings but has posted guidance on its plans to resume in-person hearings.
The latest announcement includes hearings through December 4; the previous date was October 30. As was the case before, the September 9 announcement adds: “Please note that postponing a hearing will not affect other case deadlines. All case deadlines will continue to apply and must be timely met unless the parties jointly agree otherwise.” The updated announcement offers fee waivers for stipulated postponement of hearings set for December 7 – December 31. Says DRS: “To avoid postponement fees, parties must provide written notice of the stipulation to adjourn more than 20 days prior to the first scheduled hearing date. Parties stipulating to adjourn in-person hearing dates should also consider stipulating to changing other case deadlines.”
Safety Considerations and a New Chart
The announcement also describes safety considerations for resumption of in-person hearings. DRS: “looks to permit in-person hearings to resume generally, [and] it has partnered with public health experts to develop criteria to help inform whether the public health conditions in a particular hearing location are conducive to safe participation for all…. Another key factor in the resumption of hearings are the requirements of state and local governments regarding activities within their jurisdictions.” The Authority’s Website now posts a chart, Arbitration & Mediation Hearing Locations (with Scheduled Cases) That Met Public Health Conditions Consistent with CDC Guidance. Thus far, only the Pittsburgh and Syracuse hearing locations have met the CDC standards (ed: Pittsburgh made the October list, but dropped off for November). Why were in-person hearings not resumed? Says FINRA: “FINRA administratively postponed hearings in the locations due to arbitrator concern with participating at in-person hearings at this time, or state and local quarantine orders affecting participants who would need to travel to the hearing locations.”
Process for Resumption of In-Person Hearings and a New Option
DRS has established a procedure for resuming in-person hearings. About six weeks out: “in consultation with public health experts, FINRA will assess the public health conditions in a hearing location and communicate with hearing participants about whether a location’s conditions could enable the hearing to proceed in-person.” DRS may postpone scheduled hearings: 1) if conditions change for the worse; 2) a participant can’t comply with state and local quarantine or other public health requirements; or 3) “one or more arbitration panel members on the case are unwilling to participate in-person, or if it determines that other circumstances require postponement.” New this month is an option to proceed in-person irrespective of whether DRS has resumed such hearings, specifically: “Note that if all parties and arbitrators agree to proceed in-person based on their own assessment of public health conditions, the case may proceed provided that the in-person hearing participants comply with all applicable state and local orders related to the COVID-19 pandemic.”
DRS has also published its protocol for ensuring participant safety (ed: repeated verbatim):
- Hearings will be held in venues large enough to allow social distancing;
- Cleaning and sanitizing stations will be provided in each room;
- Masks will be required for all participants and arrangements will be made to provide masks to participants who do not have them;
- Separate breakout rooms will be provided for each party with their counsel and the arbitrators so that each group can meet privately and maintain social distancing;
- Plexiglas dividers or face shields will be provided in the event that testifying witnesses must remove their masks;
- Each participant will be required to complete a written health questionnaire certifying that they have not tested positive for COVID-19 and do not have symptoms related to COVID-19, and to the best of their knowledge, they have not been exposed to someone who has tested positive for or shown any symptoms of COVID-19 within the two weeks preceding the hearing; and
- Participants will be provided with information on best practices for traveling and staying in hotels under current circumstances.
(ed: *We’re again not surprised about the shifting postponed hearing date. **Virtual hearings via Zoom remain an option. ***Kudos to FINRA for clear communication and proactive thinking. ****We correctly predicted that in-person hearings would resume on a rolling basis.)