Will the real John Hansen please stand up?
That's the question the
National Association of Securities Dealers
and federal regulators are facing amid charges that two different people claiming to be the same man have served as NASD arbitrators in securities disputes. And the Manhattan securities lawyer who recently reported the discrepancy to federal securities authorities says it's far from a laughing matter.
Two different people purporting to be John Hansen served as arbitrators on at least two NASD cases in Boston, attorney Jonathan Kord Lagemann said in an Oct. 6 filing with the
Securities and Exchange Commission
. A Boston lawyer named John Hansen, whom the NASD lists as one of its arbitrators, says in an interview that about a year ago he heard someone was masquerading as him in arbitration cases. He hasn't served as an NASD arbitrator since then.
The SEC won't confirm whether it's investigating the situation. But spokeswoman Joanne Bamberger says, "If someone were to point something out to us, such as there was some irregularity and someone was using someone else's arbitration number, we would look into that."
NASD spokeswoman Amy Hyland says she's unaware of the claim, and the NASD declined to comment further.
A Bigger Problem
Lagemann contends that the arbitrator identity discrepancy is evidence the NASD isn't properly running the arbitration program. It's also proof the association shouldn't be given the additional authority it's now seeking from the SEC to replace arbitrators.
"In my opinion, it is a serious mistake to give additional, or for that matter, any nonadministrative decision-making powers to the director of arbitration," Lagemann wrote to the SEC.
The difference between the two men claiming to be John Hansen was discovered by one of Lagemann's clients. In 1998, that client had been a party in a securities dispute that was being heard by an NASD arbitration panel. Sitting on that panel was an arbitrator who identified himself as John Hansen. The client lost the case.
Two years later, Lagemann's client -- who also is an NASD arbitrator -- sat on another arbitration panel with another man who claimed to be Hansen.
"I couldn't believe it. It was not the same John Hansen," says the client, who requested anonymity because he still serves as an NASD arbitrator. "I didn't know what to do. I know it wasn't the same guy."
Not Even Close
The two men claiming to be Hansen shouldn't have been easily confused, Lagemann says. One was tall with graying hair. The other was much shorter and considerably younger.
"That's scary," says the John Hansen who's an associate general counsel for
State Street Bank & Trust
in Boston and who has served as an NASD arbitrator. "This is peculiar if there is an issue here of identity theft."
Hansen says he was unaware of Lagemann's allegations. But after seeing Lagemann's claim in writing, Hansen says he contacted a lawyer and was seeking answers.
"It is, as I say, disconcerting," he says. "I'm just going to pursue as best I can some kind of clarification on what this ... is all about."
Lagemann notified the SEC of the identity discrepancy in response to an NASD
proposal that would give its director of arbitration the power to remove sitting arbitrators from securities cases.
"As a practitioner in securities arbitration, I am opposed to the proposed rule change," Lagemann wrote to the SEC. "I respectfully request that proceedings be instituted by the commission to determine whether the proposed rule change should be disapproved."
The SEC hasn't yet acted on the proposed rule change. But the NASD has faced other criticism recently for the way it selects members of the panels that hear arbitration cases.
In July, the
Public Investor Arbitration Bar Association
, or PIABA, a trade and lobbying group that represents plaintiffs lawyers in securities cases, said the panels were tilted in favor of the securities industry and urged the NASD to revamp its system for choosing arbitrators. PIABA demanded that the NASD hire an outside auditor to examine the arbitrator selection process, something the NASD agreed to do.
The NASD, which also is the parent of the
Nasdaq Stock Exchange
, oversees the main venue for disputes between investors and brokers. Most such disputes end up in arbitration under standard broker-investor agreements.
Since the mid-1990s, there have been 5,000-6,000 arbitration cases filed with the NASD each year (
"There are just too many people who are defense-minded ... or recently affiliated with the securities industry," among arbitrators chosen, says Seth Lipner, PIABA president.
PIABA generally supports the proposed new rule that would give the NASD director of arbitration authority to remove arbitrators for cause, because it has sufficient safeguards, Lipner says.
But if what Lagemann found about two men claiming to be the same arbitrator is true, there's reason to question the NASD's administration, Lipner adds.
"Certainly the integrity of the process gets compromised when you see the kind of thing he's talking about," says Lipner, who knows Lagemann, but wasn't aware of the claim concerning Hansen's identity. "Clearly
NASD is going to have to answer that question to the SEC."