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BENDER v. SMITH BARNEY

October 26, 1994

SANDRA BENDER, Plaintiff
v.
SMITH BARNEY, HARRIS UPHAM & CO., INC., RICHARD CARLIN, JOHN MAINE and RONALD REISMAN, Defendants



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 This is an employment discrimination action in which plaintiff, Sandra Bender, alleges, inter alia, that she was discriminated against on the basis of sex and religion when she was terminated from her position as broker at Smith, Barney. On March 20, 1992, the Honorable William G. Bassler, U.S.D.J., filed an Opinion in which he determined that petitioner was contractually obligated to arbitrate her employment dispute and entered an Order compelling plaintiff to arbitrate all of her claims pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et. seq. The matter was stayed pending arbitration, and on March 18, 1993, the case was administratively terminated without prejudice to the right of any party to reopen the docket. Arbitration is completed, the arbitrators having awarded $ 69,843.41 in favor of plaintiff on the ground that Smith Barney failed to meet an appropriate procedural "business-like standard" when terminating plaintiff. The arbitrators found no evidence of discrimination, and further denied relief on plaintiff's claims against the individual claimants in their entirety. On a counterclaim for defamation propounded by defendant John Carlin, defendant-counterclaimant Carlin was awarded $ 7,500.00 to be paid by plaintiff. The case has been reopened by Order entered May 31, 1994 and is presently before the court upon plaintiff's motion to vacate award of arbitrators and upon the cross-motion of defendants to confirm the award of arbitrators, including Carlin's recovery upon the counterclaim.

 Discussion

 A. Plaintiff's Motion to Vacate Award Of The Arbitrators On Her Claim Against Defendants On Grounds of Evident Partiality And Defendants' Cross-Motion to Confirm

 Plaintiff was terminated from her position as a broker in the Cherry Hill, New Jersey branch of Smith, Barney on May 1, 1990. Plaintiff ultimately instituted suit in this court, claiming that she was fired for discriminatory reasons, and the matter was ordered to arbitration by Judge Bassler on March 20, 1992. As Judge Bassler's Opinion explains, plaintiff signed a Form U-4 in connection with her employment at Smith, Barney to effectuate the transfer of her registration with certain securities exchanges and organizations. The U-4 form is routinely completed by licensed brokers in order to become registered with their prospective firms. Paragraph 5 of the form states in its entirety:

 
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register, as indicated in Item 10 as may be amended from time to time.

 It was pursuant to that contractual clause that plaintiff was ordered to arbitration.

 The arbitration was commenced when plaintiff filed a Statement of Claim with the National Association of Securities Dealers (NASD). In her Statement of Claim, plaintiff charged that defendants breached their contract with her, intentionally interfered with her employment, wrongfully failed to pay certain commissions due her, wrongfully terminated her in violation of Title VII of the Federal Civil Rights Act, and that defendants were guilty of gender and race discrimination in violation of public policy. She further alleged intentional infliction of emotional distress, interference with advantageous business relationships, failure to execute sell orders, slander, libel, falsification of U-5 form and negligent supervision. She sought compensatory damages in the amount of $ 2,719,258.00 and punitive damages in the amount of $ 8,157,774.00, as well as interest, costs, and attorney's fees.

 The panel of three NASD arbitrators was chaired by Charles Boyd. Mr. Boyd was required, pursuant to NASD procedures, to disclose certain background information, including the names of present and previous employers, so that the parties could ascertain whether there might be a conflict of interest in his arbitrating the case. By letter dated February 2, 1993, Mr. Boyd disclosed that he had been employed until July 5, 1991 by W.H. Newbold's, the company which hired plaintiff subsequent to her May, 1990 termination by Smith, Barney.

 Plaintiff claims that the arbitration award must be vacated because of a failure of Mr. Boyd to disclose additional information which, in plaintiff's view, suggests a potential bias against her. As stated, certain disclosures were made by Mr. Boyd. Specifically, in the Arbitration Disclosure document forwarded to plaintiff some two months prior to the start of the arbitration, Mr. Boyd noted that he had worked for W.H. Newbold, the company currently employing plaintiff. Mr. Boyd supplemented this disclosure by way of the February 2, 1993 letter which stated that Mr. Boyd did not know plaintiff, and that he was not instrumental in her hiring by W.H. Newbold. He offered the opinion that he was capable of "rendering a fair and unbiased decision in this matter." Ex. K. to Friedman Aff. Plaintiff did not seek to disqualify Mr. Boyd on the ground that he once had worked for W.H. Newbold.

 Plaintiff's principal complaint on the instant motion is that although Mr. Boyd disclosed that he had once been employed by W.H. Newbold, he failed to disclose that the employment ended when he was fired by the company, and that the firing resulted in Boyd's initiation of an action against Newbold for breach of employment contract. Plaintiff further alleges that "the individual who was instrumental in the decision to employ petitioner was the same party who had the distasteful duty of discharging Mr. Boyd, thereby creating an inference of bias against petitioner." Pl. Br. at 6-7.

 Assuming for present purposes that plaintiff's allegations are true, Mr. Boyd's failure to disclose these details about his relationship with W.H. Newbold, which was not a party to the arbitration proceedings, does not entitle plaintiff to relief. The Federal Arbitration Act provides that an arbitration award may be vacated upon application by a party if there was "evident partiality" by the arbitrators. 9 U.S.C. § 10(a)(2). *fn1" Plaintiff is correct that § 10(a)(2) has been interpreted such that under certain circumstances, such as where an arbitrator has a substantial interest in a firm which has had more than trivial business dealings with a party, a failure to disclose will, in and of itself, require an arbitration award to be vacated. See Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 151-52, 21 L. Ed. 2d 301, 89 S. Ct. 337 (1968); Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197 (11th Cir. 1982). Plaintiff is incorrect that the present case presents such circumstances.

 "In order to show 'evident partiality,' 'the challenging party must show 'a reasonable person would have to conclude that the arbitrator was partial' to the other party in the arbitration.'" Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1523 n.30 (3d Cir. 1994) (quoting Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 (6th Cir. 1989)). The Apperson court rejected the standard urged by plaintiff here for application in the present case, namely, the "appearance of bias" standard. Id., 879 F.2d at 1358. The applicable standard is whether a "reasonable person would have to conclude that an arbitrator was partial" to a particular party. Id. As the Third Circuit recently explained, "'evident partiality' is strong language and requires proof of circumstances 'powerfully suggestive of bias.'" Kaplan, 19 F.3d at 1523 n.30 (quoting Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 681-82 (7th Cir.), cert. denied, 495 U.S. 1009 (1983)).

 There is no such powerful suggestion of bias in the instant case. First, to the extent that it is relevant to bias, Mr. Boyd did disclose that he had a prior relationship with Newbold. Second, and more importantly, Newbold is not a party to the present litigation. Rather, Newbold happens to be a company which hired plaintiff subsequent to her termination from Smith, Barney, and as such has no stake in the outcome of plaintiff's case against Smith, Barney; the court is aware of no authority finding evident partiality as a consequence of a relationship between an arbitrator and an entity having no interest in the outcome of the arbitration proceeding. That by coincidence the same individual who terminated Mr. Boyd hired plaintiff does not create an antagonistic relationship between Mr. Boyd and plaintiff, nor does plaintiff allege any connection in fact between Boyd's firing and her hiring by Newbold. Simply stated, a reasonable person would not conclude that because Mr. Boyd may have been terminated by his former employer, he has a bias against plaintiff because she is one of the approximately 230 brokers presently employed by his former employer. Boyd properly disclosed his prior relationship with Newbold as well as the ...


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