Investors who placed their money in unlisted REITs, including Behringer Harvard, have been awakened to the myriad of issues related to the nature of these products. Unlisted, or non-traded, REITS differ from listed REITs in that they are not traded on an open market. Rather, non-traded REITs are sold to investors who then hold the product until the end of an investment term.
Behringer Harvard Investors
Behringer Harvard and other non-traded REITs contain a fundamental flaw which is many times not evident at the time of purchase: their value is set by the very companies which sell them. To clarify, a listed, or public, REIT is valued daily based on the market in which it is traded whereas a non-traded REIT’s value is determined by the staff of the REIT, or sometimes by a third party consultant paid for by the REIT which it is supposed to objectively value. Obviously, a conflict of interest can easily develop in the standard valuation procedure of a non-traded REIT.
Another issue with non-traded REITs is that if one chooses to sell their shares, it must do so in conformity with the procedures of the REIT. The usual procedure is to sell shares through a redemption program; however, many such programs have been suspended due to adverse financial conditions when many investors attempt to redeem their shares at once. The consequence to investors is that they are stuck in the investment until the redemption program is reinstated.
When sold Non-traded REITs, many were not informed of these obvious drawbacks to the product. Some have posited that it might have something to do with the somewhat common 15% commission given to the selling party, or the broker. Though regrettable, many investors may be able to recover losses in such products, including Behringer Harvard, through arbitration. For a more detailed analysis of REITs.
What Is FINRA Arbitration?
FINRA arbitration is a method of resolving disputes between investors, brokerage firms, and financial advisors without going through the traditional court system. The process is administered by the Financial Industry Regulatory Authority (FINRA), the self-regulatory organization responsible for regulating broker-dealers and maintaining standards within the U.S. securities industry. Because most brokerage account agreements require customers to settle disputes through arbitration rather than litigation, FINRA arbitration has become the primary forum for investor claims in the United States.
In simple terms, FINRA arbitration is intended to provide a more efficient and less formal alternative to a lawsuit. When investors believe they have suffered financial harm due to broker misconduct—such as unsuitable investment recommendations, misrepresentation, excessive trading, or failures in supervision—they may file a claim through FINRA’s dispute resolution system. Brokerage firms and registered representatives that are members of FINRA are typically obligated to participate in the arbitration process when a customer files a claim.
The arbitration process begins when the investor submits a Statement of Claim to FINRA. This document outlines the relevant facts of the dispute, the alleged wrongdoing, and the amount of damages the claimant is seeking. After the claim is filed, the brokerage firm or broker—referred to as the respondent—files an Answer addressing the allegations. FINRA then assigns a panel of arbitrators to hear the case. Depending on the size of the claim, the panel may consist of one arbitrator or three arbitrators. These individuals are neutral decision-makers selected from FINRA’s roster and may include both public arbitrators and arbitrators with industry experience.
Once the arbitrators are selected, the case proceeds through several stages that resemble aspects of litigation. The parties exchange documents and participate in pre-hearing conferences that address scheduling and procedural matters. However, arbitration generally involves fewer procedural steps than court litigation. Discovery is more limited, and the process is structured to move more efficiently than a traditional lawsuit.
Eventually, the matter proceeds to an evidentiary hearing where both sides present their arguments. Witness testimony, documents, and other evidence may be introduced for the arbitrators’ consideration. After reviewing the evidence and hearing the arguments of both parties, the arbitration panel deliberates and issues a written decision known as an arbitration award.
This award determines whether the claimant is entitled to compensation and, if so, the amount that should be paid. Arbitration awards are typically final and binding, meaning they cannot easily be appealed. Courts may only overturn an arbitration award under very narrow circumstances, such as evidence of fraud, bias, or serious procedural misconduct.
FINRA arbitration plays an important role in the securities industry because it offers investors a forum to seek recovery when financial losses result from broker misconduct. At the same time, brokerage firms benefit from a dispute resolution process that is often faster and less costly than traditional litigation. While some critics argue that mandatory arbitration limits investors’ ability to bring claims in court, supporters contend that arbitration provides a practical and accessible system for resolving disputes.
Overall, FINRA arbitration functions as the primary mechanism for resolving conflicts between investors and brokerage firms. Through a structured yet streamlined process overseen by FINRA, arbitration is intended to deliver fair outcomes while supporting confidence in the integrity of U.S. financial markets.