Opposition to Motion to Vacate Arbitration Award; Motion and Brief to Confirm Arbitration Award



_________ DIVISION

______________, §


Plaintiff, §




___________________, INC. § ____________

___________________ §

AND ________________ COMPANY, §


Defendants. §




Defendants by their counsel, __________, pursuant to 9 U.S.C. § 9, hereby move to confirm the arbitration award and oppose Plaintiff’s Motion to Lift Stay and Vacate Arbitration Award and state as follows:



  2. FACTS 1

    A. Background 1

    1. Court Proceedings 1

    2. Arbitration Proceedings 2

    i. Pre-Hearing 2

    ii. The Evidence Presented At The Hearing 3


    A. Applicable Standards 3

    B. Manifest Injustice Is Not A Standard For Vacating An Arbitration

    Award And Even If It Was, There Is No Evidence of Manifest Injustice 4

    C. “Manifest Disregard of Law” Is Not A Standard For A Motion To

    Vacate And Even If It Were, There Was No Manifest Disregard Of The Law 5

    D. Arbitrators Need Not Set Forth Any Reasoning For An Award 6

    E. The Alleged Discovery Dispute Is Not Grounds For Vacating The

    Arbitration Award 7

    1. Discovery Disputes Do Not Justify Vacatur 7

    2. Even If A Discovery Dispute Justifies Vacatur, Plaintiff’s

      Allegations of Discovery Abuse Are Meritless 7

      a. Defendants Produced Substantial Information and

      Documents 7

      b. Plaintiff’s Pro Se Requests for Documents Were

      Unreasonable 7

      c. Plaintiff’s Attorney Never Sought The Documents

      In the Pro Se Requests 7

      d. Defendants Complied With NASD Rules 7

      e. Plaintiff’s Attorneys Did Not Seek a Pre-Hearing Conference 7

    3. Plaintiff Is Estopped From Complaining About The Discovery Dispute 7

      F. Denial of the Continuance Was Not Misconduct By the Arbitrators 7

    4. Denial of a Continuance is Rarely Grounds for Vacatur 7

    5. Firm Delayed Seeking a Continuance 8

    6. Firm’s Grounds for A Continuance Were Meritless 8

    7. Denial of the Continuance Did Not Prejudice Plaintiff 8

      G. The Arbitrator’s Qualifications Are Not Grounds To Vacate The Award 9

      H. Plaintiff’s Challenges To The Arbitration Agreement Do Not Provide A

      Permissible Basis To Challenge An Arbitration Award, Especially Where

      The Law Of The Fifth Circuit Has Ruled That Plaintiff’s Claims Are Subject

      To The Arbitration 9




    ARW Exploration Corp. v. Aguirre, 45 F.3d 1455 (10th Cir. 1995) 8

    Antwine v. Prudential Base Securities, 899 F.2d 410 (5th Cir. 1990) 6, 7

    Eljer v. Kowin Development Corp., 14 F.3d 1250 (7th Cir. 1994) 5

    Flight Systems v. Paul Alaverce, 715 F. Supp. 1125 (D.D.C. 1989) 7

    Forsythe International v. Gibbs Oil Co., 915 F.2d 1017 (5th Cir. 1980) 4, 10

    Hunt v. Mobil Oil Co., 654 F. Supp. 1487 (S.D. N.Y. 1987) 7

    Legion Insurance Co. V. Insurance Gen. Agcy., 822 F.2d 541 (5th Cir. 1987) 4, 5

    McIlroy v. Paine Webber, Inc., 989 F.2d 817 (5th Cir. 1993) 3, 4

    Mooney v. Aramco Svcs. Co, 54 F.3d 1207 (5th Cir. 1995) 6

    Moses H. Cone Memorial Hospital v. Mercury Construction Co., 60 U.S. 1 (1983) 4, 5

    O.R. Securities Insurance v. Professional Planning Associate,

    857 F.2d 742 (11th Cir. 1988) 4, 5

    O’Rear v. Am Family Life Assurance Co., 817 F. Supp. 113 (M.D. Fla. 1993) 7

    Quest Medical v. Earl J. Apprill, 90 F.3d 1080 (5th Cir. 1996) 10

    R.M. Perez v. Welch, 960 F.2d 534 (5th Cir. 1992) 3, 5

    Robbins v. Day, 954 F.2d 679 (11 Cir. 1992) 3, 4, 5, 6

    Schmidt v. Finberg, 942 F.2d 1571 (11th Cir. 1991) 8

    Storey v. Searle, 685 F. Supp. 80 (S.D.N.Y. 1988) 8

    United Paperworkers International Union v. Misco Inc., 484 U.S. 29 (1987) 3, 5

    Wall Street Associates, LP v. Becker Paribas Inc., 27 F.3d 845 (2nd Cir. 1994) 7

    Plaintiff v. , Inc., __ F.3d ___ (5th Cir. ____) 2, 10


    9 U.S.C. § 9 21

    9 U.S.C. § 10(a) 1, 4, 5, 10, 18, 19, 20

    Age Discrimination In Employment Act of 1967, 29 U.S.C. § 621 et seq. (ADEA) 1

    Fair Labor Standards Act (FLSA) 29 U.S.C. § 201 et seq 1

    Title 9 U.S.C. § 10(a) 4

    Martin v. Little supra 16


    This an employment case, subject to NASD arbitration, in which Plaintiff __________ (“Plaintiff”) sued ___________, Inc., __________ and __________ Company (hereafter collectively “Defendant”) claiming that his termination was due to age discrimination and retaliation for his filing a charge of discrimination. Defendant filed a counterclaim alleging breach of contract in that Plaintiff did not repay more than $______ Defendant had loaned to him. After a three-day arbitration hearing, three neutral arbitrators found that Defendant was not liable to Plaintiff, but that Plaintiff was liable to Defendant in the amount of $______.

    When this Court applies the restrictive and deferential standard of review for recorded arbitration awards, it will be evident that Plaintiff’s motion must be denied because he cannot prove any of the grounds for vacatur which are listed exclusively in 9 U.S.C. § 10(a).


    A. Background

    1. Court Proceedings

    Plaintiff, a sales agent for Defendant, filed a federal court lawsuit alleging that Defendant terminated his services because of his age and in retaliation for his filing of a discrimination charge. Plaintiff claimed violations of the Age Discrimination In Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), and the Texas Commission on Human Rights Act of 1983 article 5221K, as amended (“TCHRA”). Plaintiff later amended his complaint to include a claim under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for alleged failure to pay overtime.

    Defendant filed a motion to compel arbitration in this Court, pursuant to Plaintiff’s agreement to arbitrate contained in the form U4 signed by him to register with the National Association of Securities Dealers (“NASD”). The motion was denied and Defendant moved to stay proceedings pending its appeal to the Fifth Circuit. The court denied this stay and the case proceeded pending the appeal. Defendant answered the complaint and filed a counterclaim alleging breach of contract because Plaintiff did not repay $______ Defendant loaned to him.

    The parties made Rule 26(a) disclosures and discovery proceeded. While Defendant’s Motion for Summary Judgment was pending, the Fifth Circuit held that Plaintiff’s claims were subject to arbitration. Plaintiff v. , Inc., __ F.3d ___ (5th Cir. ____). The Fifth Circuit addressed several arguments Plaintiff raised contending, inter alia, there was no agreement to arbitrate and the claims were not subject to arbitration. On remand, by order dated __________, this Court compelled arbitration and stayed all proceedings pending arbitration.

    2. Arbitration Proceedings

    i. Pre-Hearing

    On ___________, two law firms representing Plaintiff filed his arbitration claim. When Plaintiff’s arbitration claim was filed, he dropped his FLSA claim and alleged only age discrimination and retaliation. Defendant answered and counterclaimed for repayment of its loans to Plaintiff. Defendant’s defense was that it terminated Plaintiff’s services not because of his age but because of his unsatisfactory sales results during a ____-year period and his high debt load. Plaintiff was consistently at the lowest level of sales results among similarly situated sales people and did not even earn enough commissions to repay money Defendant loaned to him for his operating expenses.

    Defendants direct the Court’s attention to Defendant’s arbitration answer as it provides a concise review of the evidence presented during the arbitration. Defendant’s Arbitration Answer with supporting evidence is attached. Def. Exh. 1.

    Defendant presented ample evidence that no retaliation occurred because the decision about which Plaintiff complained was made and communicated to Plaintiff well before he...

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