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August 10, 2012
Pre-Dispute Arbitration Agreements Involving Disputes Related to CFTC Part 165 Whistleblower Rules
The Commodity Futures Trading Commission (Commission or CFTC) recently adopted Part 165 of its Regulations to implement the Commission's Whistleblower Program. CFTC Regulation 165.19 specifically provides that a pre-dispute arbitration agreement will not be valid or enforceable if it requires a party to arbitrate a claim that arises under the Whistleblower Rules. As a result, any Member that has pre-dispute arbitration agreements with employees should ensure that the agreements specifically exclude claims arising under Part 165 of the Commission's Rules. In addition, Members should be aware that although NFA's Member Arbitration Rules provide that disputes (with certain specified exceptions) between Members and Associates are mandatory at the election of the person filing the claim, NFA will not honor any pre-dispute arbitration agreement that purports to require an Associate to file a claim that arises under the Whistleblower Rules in NFA arbitration. A Member, however, remains obligated under Section 2(b) of the Member Rules to arbitrate a dispute that arises under the Whistleblower Rules if the Associate voluntarily elects to file the claim against the Member firm in NFA Arbitration.
Questions concerning this Notice to Members should be directed to Christine Roche, Manager, Arbitration Department (firstname.lastname@example.org or 312-781-1562).