The opinion of the court was delivered by: Greenaway, District Judge.
This matter comes before the Court on the motion of Jeeredi A.
Prasad, M.D., Inc., Retirement Plan Trust Profit Sharing Plan
("Prasad Retirement Trust") and Jeeredi A. Prasad, M.D.
(collectively, "Petitioners") to confirm and enter judgment upon
an arbitration award issued in their favor on November 24, 1998.
Respondents Investors Associates, Incorporated ("IAI"), Herman
Epstein, and Lawrence Joseph Penna have filed a cross-motion for
an Order vacating the arbitration award. For the following
reasons, Petitioners' motion
is granted and Respondents' motion is denied.
In or about 1996, Dr. Prasad, a California resident, opened
several securities accounts with IAI, a securities brokerage
firm, incorporated in New Jersey, with its principal place of
business here. Dr. Prasad was a customer of IAI in both his
individual capacity and as trustee of the Prasad Retirement
Trust. During the relevant time, Respondent Epstein was President
of IAI and Respondent Penna was the firm's Executive
Vice-President. Both Epstein and Penna reside in New Jersey.
In opening the accounts, Dr. Prasad executed a "Client's
Agreement" (the "agreement"). The agreement contained a
choice-of-law clause, which provided for the contract to be
governed by New York law. The agreement further provided that any
controversy arising out of, or relating to, Petitioners' accounts
would be submitted to binding arbitration before one of a number
of self-regulatory organizations in the securities field. Under
the agreement, any court of competent jurisdiction may enter
judgment upon any award rendered by the arbitrators. See
Affidavit of Lawrence R. Gelber, dated August 12, 1999 ("Gelber
Aff."), Ex. A.
On or about November 26, 1997, Petitioners filed a demand for
arbitration with the National Association of Securities Dealers
("NASD") in Los Angeles, alleging that Respondents had engaged in
fraudulent and other wrongful activities in connection with the
sale of securities to Petitioners.*fn1 The parties filed a
Uniform Submission Agreement in which they agreed that the
arbitration would be conducted under the Constitution, By-Laws,
Rules, Regulations and/or Code of Arbitration Procedure of the
NASD. See Affidavit of Jeffrey L. Squires, dated September 20,
1999 ("Squires Aff."), Ex. A.
The panel of arbitrators, Herbert Leslie Greenberg, Jeffrey E.
Skogsbergh, and Susan Vernon Wood, held the arbitration hearing
from August 11 through August 13, 1998. At that time, Wood served
as Senior Corporations Counsel in the Securities Regulation
Division of the California Department of Corporations. She had
disclosed this fact in her Arbitration Disclosure provided to the
parties in March 1998. See Squires Aff., Ex. D.*fn2 The
parties did not lodge any objections to the panel members upon
receiving the disclosures. Greenberg served as the panel's
At the commencement of the hearing, Lawrence Gelber,
Respondents' arbitration counsel, objected to both Greenberg's
and Wood's presence on the arbitration panel. First, Gelber
argued that Greenberg was biased. Earlier in the proceedings,
Greenberg had sanctioned Respondents as a result of a discovery
dispute. Gelber asserted that as a result of this ruling,
Greenberg could not be impartial and was hostile to Respondents.
Gelber then expressed concern that Wood's presence on the panel
would create the appearance of bias or partiality. In 1997, the
California Department of Corporations had commenced an
investigation of Respondents, which culminated in a consent
decree. As a result, Respondents agreed to a revocation of their
licenses to deal securities in that state. Gelber acknowledged
that Wood's disclosure of her employer had "escaped [his] notice"
and that he had waived any peremptory challenge by failing to
challenge Wood earlier. See Squires Aff., Ex. I at 7, 10. He
urged Wood to recuse herself because of the appearance of a
conflict, though he stated
that he believed "she has no actual conflict." See Squires
Aff., Ex. I at 11.
After an off-the-record discussion among the panel members,
both Greenberg and Wood declined to withdraw. See Squires Aff.,
Ex. I at 14.
On November 24, 1998, the arbitration panel entered an award in
Petitioners' favor, awarding Dr. Prasad $84,108.00 in
compensatory damages, and awarding the Prasad Retirement Trust
$271,244.00 in compensatory damages. Each Respondent is jointly
and severally liable for the entire award.*fn3 The panel denied
Petitioners' request for punitive damages and required each side
to bear its own costs and fees. See Squires Aff., Ex. B.
In the three months that followed, Respondents did not seek to
vacate the award. Petitioners timely commenced the present action
to confirm the award on June 1, 1999. See 9 U.S.C. § 9.*fn4 On
August 13, 1999, nearly nine months after the award was issued
and in response to Petitioners' application, Respondents filed
the instant motion to vacate.