Austern v. Chicago Bd. Options Exchange, Inc.

Citation898 F.2d 882
Decision Date15 March 1990
Docket NumberNo. 520,D,520
PartiesS. Ezra AUSTERN and Esther Austern, Plaintiffs-Appellants, v. The CHICAGO BOARD OPTIONS EXCHANGE, INC., Defendant-Appellee. ocket 89-7792.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

S. Ezra Austern, Brooklyn, N.Y., for plaintiffs-appellants.

Reid L. Ashinoff, New York City (Mark S. Pomerantz, Ashinoff, Ross & Korff, New York City, of counsel), for defendant-appellee.

Before MESKILL and NEWMAN, Circuit Judges, and POLLACK, * District Judge.

MESKILL, Circuit Judge:

The central question presented by this appeal is whether a commercial organization sponsoring a contractually agreed upon arbitration is immune from civil liability for improperly noticing the arbitration hearing and improperly selecting the arbitration panel.

Plaintiffs S. Ezra and Esther Austern (the Austerns) appeal from a judgment entered in the United States District Court for the Southern District of New York, Cedarbaum, J., dismissing their complaint against defendant Chicago Board Options Exchange, Inc. (CBOE) pursuant to Fed.R.Civ.P. 12(b)(6) on the ground of arbitral immunity. The complaint sought compensation for expenses incurred in defending an arbitration confirmation proceeding in the United States District Court for the Northern District of Illinois, Kocoras, J. On appeal, the Austerns contend principally that the conduct of the CBOE, the commercial organization that sponsored the arbitration, fell outside the scope of arbitral immunity.

The judgment is affirmed.


For purposes of this appeal, we accept, as we must, the factual allegations contained in appellants' complaint as true.

See, e.g., Corcoran v. American Plan Corp., 886 F.2d 16, 17 (2d Cir.1989); Tucker v. Bay Shore Union Free School Dist., 873 F.2d 563, 563 (2d Cir.1989); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1098 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). The facts of this case are thoroughly set forth in the district court's opinion, reported at 716 F.Supp. 121 (S.D.N.Y.1989). Therefore, we shall briefly recount only those facts relevant to the present appeal.

Fried Trading Company (Fried), an options trading partnership, is a member organization of the CBOE. Pursuant to an arbitration clause in the options trading partnership agreement between Fried and the Austerns, Fried, on September 14, 1984, filed a petition for arbitration with the CBOE for monies due under the agreement. 1 The Austerns, who until November 1986 were residents of Bnei Brak, Israel, answered the petition on November 26, 1984 and soon thereafter the CBOE accepted the matter for arbitration.

The arbitration rules of the CBOE, which governed both the selection of the arbitration panel and the procedures to be followed, mandated that (1) the panel be composed of five arbitrators, "at least a majority of whom shall not be from the securities industry," and (2) "[n]otice of the time and place for the initial hearing ... be given at least eight (8) business days prior to the date fixed for the hearing by personal service, registered or certified mail to each of the parties." The CBOE also agreed to attempt to accommodate the Austerns' schedule with a mutually convenient hearing date "due to the great distance Respondents [were required] to travel to attend [the] hearing."

In September 1986, the Austerns withdrew their appearance, answer and counterclaim. Nevertheless, on October 22 and 23, 1986, a panel of five arbitrators designated by the CBOE conducted an ex parte hearing and issued an award of approximately $158,000 in favor of Fried. None of the arbitrators was from outside of the securities industry and, despite attempts to provide appellants with notice of the hearing, the Austerns never received any such notice from the CBOE. The hearing apparently took place without either appellants' presence or knowledge.

Soon thereafter, on October 29, 1986, Fried commenced a proceeding in the United States District Court for the Northern District of Illinois to confirm the award pursuant to section 9 of the Federal Arbitration Act, 9 U.S.C. Sec. 9. However, because the CBOE had failed to provide the Austerns with adequate notice of the arbitration hearing, Judge Kocoras ratified the findings of Magistrate Balog, to whom that matter had been assigned, and denied Fried's petition for confirmation. See Fried Trading Co. v. Austern, No. 86 C 8223, 1988 WL 130620 (N.D.Ill. Dec. 1, 1988) (LEXIS, Genfed library, Dist file; WESTLAW, Federal Dct Database). 2

On January 20, 1989, the Austerns filed suit in the United States District Court for the Southern District of New York seeking to recover damages for mental anguish and the expense of defending against Fried's unsuccessful confirmation action. In a nine count complaint the Austerns claimed that the CBOE's negligent empaneling and scheduling of the arbitration proceedings caused them injury in the amount of $612,000. The Austerns also claimed that the CBOE's failure to provide them with adequate notice of the arbitration hearing violated their right to procedural due process under the Fourteenth Amendment to the In an opinion and order dated July 31, 1989, Judge Cedarbaum dismissed the Austerns' complaint in total pursuant to Fed.R.Civ.P. 12(b)(6). The district court ruled that the CBOE, as the organization sponsoring the arbitration, was shielded from civil liability under the doctrine of arbitral immunity. 716 F.Supp. at 123-24. In the alternative, the court ruled that section 10 of the Federal Arbitration Act "provides the exclusive remedy for challenging conduct that taints an arbitration award." Id. at 124. Finally, the court found that the conduct of the CBOE did not constitute state action for either federal or state due process purposes. Id. at 125. This appeal followed.

United States Constitution and Article I, Section 2 of the Illinois Constitution.


On appeal, as in the district court, the Austerns contend principally that the acts of which they complain, "being of an administrative or ministerial nature, d[o] not merit [arbitral] immunity." We disagree and, consequently, affirm the dismissal of appellants' complaint.

A. Standard of Review

Dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a ruling of law subject to de novo review, Leidholdt v. L.F.P. Inc., 860 F.2d 890, 893 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1988); Wells v. Walker, 852 F.2d 368, 369-70 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1988); Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987), and will be upheld on appeal only if " 'it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief,' " Philips Business Sys., Inc. v. Executive Communications Sys., Inc., 744 F.2d 287, 290 (2d Cir.1984) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted)).

B. Arbitral Immunity

Absolute immunity, "justified and defined by the functions it protects and serves, not by the person to whom it attaches," Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988), has long shielded judges from damages liability for actions taken in the exercise of their judicial functions. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872); see also Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979). This comparatively sweeping form of immunity has also been extended to executive branch officials who perform either quasi-judicial functions, see Butz v. Economou, 438 U.S. 478, 513-14, 98 S.Ct. 2894, 2914-15, 57 L.Ed.2d 895 (1978) (administrative law judge and various agency officials), or prosecutorial functions "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); accord Rudow v. City of New York, 822 F.2d 324, 327-30 (2d Cir.1987); Barr v. Abrams, 810 F.2d 358, 360-62 (2d Cir.1987); Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir.1926) (holding special assistant to the Attorney General of the United States absolutely immune from a civil action for malicious prosecution on principles of public policy), aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) (per curiam). As with judicial immunity, which "protect[s] the finality of judgments [by] discouraging inappropriate collateral attacks ... [and] also protect[s] judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants," Forrester, 484 U.S. at 225, 108 S.Ct. at 543 (citing Bradley, 80 U.S. (13 Wall.) at 348), the scope of quasi-judicial immunity is defined not by the identity of the actor but by the nature of the function performed, namely freeing the adjudicative process and those involved therein from harassment or intimidation. See Butz, 438 U.S. at 512, 98 S.Ct. at 2913.

Based primarily on the "functional comparability" of the arbitrator's role in a contractually agreed upon arbitration proceeding to that of his judicial counterpart, the Courts of Appeals that have addressed the issue have uniformly immunized arbitrators from civil liability for all acts performed in their arbitral capacity. See Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir.1987); Ozark Air Lines, Inc. v. National Mediation Board, 797 F.2d 557, 564 (8th Cir.1986); Austin Municipal Securities, Inc. v. National Ass'n of Securities Dealers, Inc., 757 F.2d 676, 686-91 (5th Cir.1985); Corey v. New York Stock Exchange, 691 F.2d 1205, 1208-11 (6th Cir.1982); Tamari v. Conrad, 552 F.2d 778, 780 (7th Cir.1977); Cahn v. International...

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