Guide to Expedited Proceedings

Expedited proceedings under Rule 9554 (Failure to Comply with an Arbitration Award or Related Settlement or an Order of Restitution or Settlement Providing for Restitution) are a common type of expedited proceeding. In an expedited proceeding under Rule 9554, the Respondent must specify one of the following allowable defenses in a Hearing Request:

1. the Respondent paid the award or fee in full, complied fully with the arbitration or settlement agreement;
2. the arbitration claimant has agreed to installment payments or has otherwise settled the matter with the Respondent, and the Respondent is current on his obligations;
3. the Respondent has filed a timely motion to vacate or modify the arbitration award and the motion has not been denied;
4. the Respondent has filed a petition in bankruptcy court and the bankruptcy proceeding is pending, or the award or remaining amount owed has been discharged by the bankruptcy court; or
5. only in industry arbitration cases (not involving customers), the Respondent is financially unable to pay the award.

The Hearing Officer will not consider a Respondent’s challenge to an arbitration award. If a Respondent claims as a defense to have filed a motion to vacate the arbitration award or a bankruptcy petition, the Respondent should file proof of such a filing with the Office of Hearing Officers and the FINRA department that issued the Notice.

Pre-Hearing Procedures

When a Respondent timely files a Hearing Request with the Office of Hearing Officers, the Chief Hearing Officer will assign the expedited proceeding to a Hearing Officer. For expedited proceedings initiated under Rules 9553, 9554, 9556(h), and 9561, the appointed Hearing Officer will decide the case. For proceedings initiated under Rules 9551, 9552, 9555, 9556 (except Rule 9556(h)), 9557, and 9558, the Chief Hearing Officer shall appoint a Hearing Panel composed of the appointed Hearing Officer and two industry panelists. The Chief Hearing Officer will select as panelists persons drawn from a pool of current and former securities industry members. Hearing Panelists must meet the qualifications set forth in Rules 9231 and 9232.

In the event a Respondent’s Hearing Request is untimely, the Chief Hearing Officer will reject the Hearing Request and inform the Respondent that the Notice has become FINRA’s final action.

Scheduling

Soon after being assigned to preside over an expedited proceeding, the Hearing Officer will issue a Notice of Hearing and Case Management and Scheduling Order. This Order will inform the parties of the date and time of the hearing and establish deadlines by which the parties must submit pre-hearing materials. The Hearing Officer selects the hearing date and imposes various deadlines without consultation with the parties because the deadlines are largely bound by the Rules. The Order will also explain how to file papers and the proper format to use. The Hearing Officer may conduct a pre-hearing conference with the parties, and the parties may request one.

In a proceeding brought under Rule 9554 (Failure to Comply with an Arbitration Award or Related Settlement or an Order of Restitution or Settlement Providing for Restitution), the Order will give the Respondent a deadline within which he or she must provide FINRA staff with a completed financial statement and supporting documents if the Respondent is asserting as a defense an inability to pay the arbitration award. See Sample Financial Statement. At this stage, the Respondent is not required to file this information with the Office of Hearing Officers. Rather, the Respondent must provide the completed financial statement and supporting documents to the Department of Enforcement.

For good cause shown, or with the consent of all parties, the Hearing Officer may extend or shorten any time limits set forth in Rule 9559 (except those relating to Rule 9557). A party may request that a deadline be extended during the pendency of an expedited proceeding by filing with the Office of Hearing Officers a written motion stating the reason for the request, demonstrating good cause for an extension, and certifying that the party requesting the extension has conferred with the other party and tried to obtain its consent to the request. Requests by any party for lengthy or multiple extensions of time are strongly disfavored in expedited proceedings.

Enforcement Produces Information to the Respondent 

After a Respondent files a timely Hearing Request, FINRA staff must provide the Respondent all documents that were considered in issuing the Notice (unless a document meets the criteria of Rule 9251(b)(1), or (b)(2)). Enforcement’s production of these documents to a Respondent helps ensure that the Respondent is fully apprised of the facts underlying the Notice and can effectively prepare his or her defense. The deadline for production of these documents will be specified in the Case Management and Scheduling Order. See Rules 9251(b) and 9559(h).

Because the Rule 9550 Series promotes the quick disposition of matters, and given the nature of the alleged underlying misconduct, the Rules for expedited proceedings do not provide for pre-hearing motions practice.

Pre-Hearing Submissions

The parties in expedited proceedings are obligated to exchange certain information before the hearing and file it with the Office of Hearing Officers. Not less than seven days before the hearing in an action brought under Rules 9551 through 9555, or 9561(a), not less than three days before the hearing in an action under Rules 9556, 9558, or 9561(b), and not less than two business days before the hearing in an action under Rule 9557, the parties must exchange, and file with Office of Hearing Officers, their proposed witness lists, exhibit lists, and copies of their proposed exhibits. 

The Case Management and Scheduling Order provides detailed information on how to prepare these materials. The parties must serve each other and file with the Office of Hearing Officers their pre-hearing submissions by email, unless the appointed Hearing Officer has ordered an alternate method of filing and serving. See Rule 9559(h)(2); Sample Exhibit.

The Hearing Officer or, if applicable, Hearing Panel may direct the parties to submit additional information for consideration. See Rule 9559(j).

Failure to Appear at a Pre-Hearing Conference or Hearing

The failure of a Respondent to appear before the Hearing Officer or Hearing Panel at a pre-hearing conference, or hearing, or to comply with an order of the Hearing Officer requiring production of information to support a defense to the Notice will be considered an abandonment of the Respondent’s defense and a waiver of an opportunity for a hearing. In this event, the Notice will be deemed the final FINRA action. See Rule 9559(m).

The Hearing

The hearing provides a Respondent with the opportunity to contest the Notice by providing evidence and arguments supporting his or her defenses to the statements in the Notice.

Hearings in expedited proceedings may be held by telephone conference, unless the Hearing Officer orders otherwise. See Rule 9559(d)(5). The Hearing Officer may offer the parties, as an alternative, to proceed with the hearing by videoconference. The hearing is transcribed by a court reporter who generates a transcript of the hearing. A Respondent may purchase the transcript of the hearing from the court reporter.

In an expedited proceeding hearing, as with a disciplinary proceeding, each party presents its case by submitting relevant documents and presenting witness testimony.

The Hearing Officer will allow the presentation of evidence that is relevant and material to the disputed issues, but may exclude evidence that is irrelevant, immaterial, unduly repetitious, or unduly prejudicial. Formal rules of evidence do not apply to any hearing in FINRA proceedings. FINRA Rules 9262 and 9263 govern the admission of testimony and documentary evidence. See Rule 9559(i).

Because the Office of Hearing Officers generally conducts expedited hearings by telephone or video conference, an oath or affirmation cannot be administered in person to each witness. Therefore, every witness who is subject to FINRA jurisdiction or is a FINRA employee must produce a signed and notarized affirmation or affidavit stating that his or her testimony at the hearing will be truthful. See Sample Affidavit. All other witnesses must sign a written declaration stating that their testimony will be truthful. See Sample Declaration. The party presenting the witness is responsible for filing the witness affirmation, affidavit, or declaration.

Post-Hearing Procedures

Timing and Contents of Decision

The Rules for expedited proceedings also provide for deadlines within which a Hearing Officer or Hearing Panel must prepare a written decision. See Rule 9559(o).

For proceedings initiated under Rules 9551 through 9555 and 9561, the Hearing Officer, or the Hearing Officer on behalf of the Hearing Panel, must provide a proposed written decision to the Review Subcommittee of the National Adjudicatory Council (NAC) within 60 days of the close of the hearing.

For proceedings initiated under Rules 9556 and 9558, the Hearing Officer, on behalf the Hearing Panel, must provide a proposed written decision to the NAC’s Review Subcommittee within 21 days of the close of the hearing. For expedited proceedings initiated under Rule 9557, a different set of deadlines apply. See Rule 9559(o)(4). 

In an expedited proceeding heard by a Hearing Panel, the decision is determined by a majority vote of the Hearing Panel. A decision in an expedited proceeding must include findings of fact and conclusions of the Hearing Officer or Hearing Panel regarding the alleged violation or condition specified in the Notice, as well as any sanction, requirement, restriction, cancellation or limitation imposed on the Respondent, and the date they become effective. See Rule 9559(p).

Sanctions

In any action brought under the Rule 9550 Series (other than an action under Rules 9556(h), 9557 and 9561), the Hearing Officer or Hearing Panel may approve, modify, or withdraw any sanctions, requirements, restrictions, or limitations imposed by the Notice. Pursuant to Rule 8310(a), the Hearing Officer or Hearing Panel may also impose any other fitting sanctions. See Rule 9559(n).

In an action initiated under Rule 9556(h) (Failure to Comply with Temporary and Permanent Cease and Desist Orders, or Orders that Impose Conditions or Restrictions ), the Hearing Officer may impose any fitting sanction. In an action initiated under Rule 9557 ( Procedures for Regulating Activities under Rule 4110, 4120, and 4130 Regarding a Member Experiencing Financial or Operational Difficulties), the Hearing Panel may approve or withdraw the requirements or restrictions imposed by the Notice. In an action initiated under Rule 9561 (Procedures for Regulating Activities under Rule 4111), under subsection (a), the Hearing Officer may approve or withdraw any Rule 4111 requirements or remand the matter to the department that issued the Notice for further consideration, but may not modify any of the Rule 4111 requirements imposed by the Notice or impose any additional requirements, obligations, or restrictions. Under subsection (b) of Rule 9561, the Hearing Officer may approve or withdraw the suspension or cancellation of membership and impose any other fitting sanction.

A Hearing Officer or Hearing Panel may also impose costs on a Respondent for any action brought under the Rule 9550 Series.

Call for Review by the NAC

For proceedings initiated under the Rule 9550 Series (except Rule 9557), the NAC Review Subcommittee may call for review a proposed decision prepared by a Hearing Officer or Hearing Panel within 21 days after receipt of the decision from the Office of Hearing Officers. For proceedings initiated under Rule 9557, the NAC Review Subcommittee may call for review a proposed decision prepared by a Hearing Officer, on behalf of a Hearing Panel, within 21 days after receipt of the decision from the Office of Hearing Officers. See Rule 9559(q).

If the NAC Review Subcommittee timely calls the proceeding for review, a Subcommittee of the NAC meets and conducts a review within 40 days of the call for review. The Subcommittee may hold a hearing or elect to decide the matter based on the record made before the Hearing Officer or Hearing Panel. The Subcommittee must make its recommendation to the NAC within 60 days after the call for review. Within 60 days of receiving the Subcommittee’s recommendation, the NAC has 60 days to serve a final written decision on the parties. The NAC may affirm, modify, or reverse the decision of the Hearing Officer or Hearing Panel and may impose any other fitting sanction and costs. The NAC also may remand the matter to the Office of Hearing Officers for further consideration.

If the NAC Review Subcommittee does not timely call a decision in an expedited proceeding for review, the Hearing Officer’s or Hearing Panel’s written decision shall constitute final FINRA action. The Office of Hearing Officers will serve the parties with the written decision and provide copies of the decision to each FINRA member firm with which a Respondent is associated. See Rule 9559(o)(5).

Right to Appeal to the SEC

Decisions in expedited proceedings are not appealable to the NAC. Instead, a party may appeal a decision issued by a Hearing Officer or Hearing Panel (or by the NAC if the matter was called for review by the NAC Review Subcommittee) by filing an application for review with the SEC within 30 days of receipt of the decision. The filing of an application for review does not stay the effectiveness of the final FINRA action, unless the SEC orders otherwise.