Arbitration and FINRA’s Customer Code: A Tailored Approach to When a Forum Selection Clause May Supersede FINRA Rule 12200

By Peter Giovine

This Note examines a circuit split concerning whether forum selection clauses supersede Financial Industry Regulatory Authority (FINRA) Rule 12200, which requires FINRA members to arbitrate customer disputes upon the customer’s request. The U.S. Courts of Appeals for the Second and Ninth Circuits have upheld a waiver of the right to arbitrate even when arbitration is not explicitly mentioned in a forum selection clause. The U.S. Courts of Appeals for the Third and Fourth Circuits, on the other hand, have held that a forum selection clause that does not explicitly mention arbitration does not supersede FINRA Rule 12200. This Note explores this circuit split and advocates for a middle ground between the two approaches, suggesting that such forum selection clauses should control over FINRA Rule 12200 only for institutional customers. In such cases, the parties are more likely to thoroughly negotiate a forum selection clause and intend for it to mean exactly what it says: that the forum selected in the contract should control.