In the Matter of Roffler v. Spear, Leeds & Kellogg

• Decision Date: 28 December 2004
• Docket Number: 4698.
• Citation: 13 A.D.3d 308,2004 NY Slip Op 09703,788 N.Y.S.2d 326
• Parties: In the Matter of JOSEPH ROFFLER et al., Appellants-Respondents, v. SPEAR, LEEDS & KELLOGG, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 308

788 N.Y.S.2d 326

2004 NY Slip Op 09703

In the Matter of JOSEPH ROFFLER et al., Appellants-Respondents, v. SPEAR, LEEDS & KELLOGG, Respondent-Appellant.

4698.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 28, 2004.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about February 17, 2004, vacating an amended arbitration award and bringing up for review an order, same court and Justice, entered on or about February 4, 2004, which denied petitioners' motion to confirm the amended arbitration award, granted respondent's cross motion to vacate the award, and remanded the matter to the National Association of Securities Dealers-Regulation for determination by the same panel of arbitrators, reversed, on the law, without costs, the award of $1.25 million reinstated and confirmed, and the matter remanded for the entry of judgment, including statutory costs and interest from March 3, 2003.

This Court affirmed the vacatur of the initial arbitration award in this matter upon the grounds that the arbitration panel exceeded its authority, manifestly disregarded the law and made an irrational award (Matter of Spear, Leeds & Kellogg v Bullseye Sec., 291 AD2d 255 [2002]). We held that the award which, without explanation, provided monetary relief to individual claimants for damage suffered by a corporation, was made in manifest disregard of the law. We also found that the award was inherently inconsistent because all claims brought by petitioners sought redress for the actions of Pasquale Schettino, a partner in the respondent firm without finding Schettino individually liable. The present determination, however, provides an explanation sufficient to cure the previous defects in that the panel found respondent responsible for the actions of its partner, and that Schettino had guaranteed any losses incurred by petitioners would be "made good" by respondent.

In Sawtelle v Waddell & Reed (304 AD2d 103, 108 [2003]), we observed that the United States Supreme Court has repeatedly viewed the Federal Arbitration Act as embodying "a strong `liberal federal policy favoring arbitration agreements,' providing only for extremely limited judicial review of an arbitration award." In addition, because of such limited review, the "showing required to avoid summary confirmation of an arbitration award is high, . . . and a party moving to vacate the award has the burden of proof" (Willemijn Houdstermaatschappij, BV v Standard Microsystems Corp., 103 F3d 9, 12 [2d Cir 1997]). Moreover, a reviewing court must proceed with caution because "[w]hen arbitrators explain their conclusions . . . in terms that offer even a barely colorable justification for the outcome reached," the court must confirm the award (Matter of Andros Compania Maritima, S.A. of Kissavos [Marc Rich & Co., AG.], 579 F2d 691, 704 [2d Cir 1978]; see Willemijn Houdstermaatschappij, 103 F3d at 13).

In this case the arbitrators set forth an explanation for their determination, based on a factual finding that Schettino had made an enforceable promise, directly to petitioners in their individual capacity, to cover their losses, and had the apparent authority to bind the firm. "[A] shareholder may bring an individual suit if the defendant has violated an independent duty to the shareholder . . . whether or not the corporation may also bring an action" (Ceribelli v Elghanayan, 990 F2d 62, 63 [2d Cir 1993]). Therefore, petitioners have a colorable individual claim against the firm because Schettino (and therefore respondent) violated his assumed obligation by not paying for the losses they incurred as a result of his conduct (see Vincel v White Motor Corp., 521 F2d 1113, 1118 [2d Cir 1975] [exception to rule that only corporation and not shareholder in individual capacity may sue defendant for wrong to corporation "stem(s) from the nature of the wrong alleged or a special relationship between the suing shareholder and the defendant creating a duty, contractual or otherwise, other than that owed to the corporation"]).

Respondent contends that the award was in manifest disregard of the law and exceeded the arbitrators' authority because petitioners did not assert any individual claims in their pleadings, and because this Court had stated in our prior decision that the panel exceeded its authority as it granted relief on claims not asserted. Use of the "manifest disregard" doctrine "is limited only to those exceedingly rare instances where some egregious impropriety on the part of the arbitrators is apparent" (Duferco Intl. Steel Trading v T. Klaveness Shipping A/S, 333 F3d 383, 389 [2d Cir 2003]). To vacate the award on the basis of manifest disregard of the law, the court must find that "the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether," and "the law ignored by the arbitrators must be `well defined, explicit, and clearly applicable'" to the case (Folkways Music Publs., Inc. v Weiss, 989 F2d 108, 112 [2d Cir 1993]). Moreover, manifest disregard of the law means more than an error or misunderstanding of the applicable law (see Sawtelle, 304 AD2d at 108). Rather than refusing to apply well-defined law, the arbitrators made plain that this award to petitioners was based upon their factual determination of Schettino's obligation to petitioners on behalf of respondent. The award should be enforced even if a court "is convinced that the arbitration panel made the wrong call on the law," as long as there is a barely colorable basis for the decision (Wallace v Buttar, 378 F3d 182, 190 [2d Cir 2004]).¹ The "Statement" of the panel provides such a basis.²

Finally, the arbitrators did not exceed their authority. The question of whether they exceeded their authority "focuses on whether the arbitrators had the power, based on the parties' submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue" (DiRussa v Dean Witter Reynolds, Inc., 121 F3d 818, 824 [2d Cir 1997], cert denied 522 US 1049 [1998]). The arbitrators' interpretation of the issues and the scope of their authority is accorded substantial deference, and this Court will not overturn the decision unless there is no support at all justifying the decision (United Transp. Union Local 1589 v Suburban Tr. Corp., 51 F3d 376, 379 [3d Cir 1995]). In this case, both parties argued this issue of petitioners' individual claims to the panel. Indeed, respondent specifically argued that Mr. Roffler could not maintain a private cause of action nor receive an "affirmative award." Moreover, as noted by the arbitrators in making the award, the issue as to whether petitioners were entitled to damages was specifically submitted to the panel by this Court's prior determination (291 AD2d at 256). Furthermore, there is no contention that the dispute was not covered by the arbitration agreement. Thus, the arbitrators were acting within the scope of their authority when considering whether to grant petitioners affirmative relief. The decision to do so was based upon a factual determination that will not be disturbed.

Concur — Ellerin, Lerner and Catterson, JJ.

Tom, J.P., dissents in a separate memorandum as follows:

Under the law of the case doctrine, I am constrained to dissent in favor of vacating the award and remanding the matter to a new arbitration panel for rehearing. Nevertheless, I consider the disposition of the previous appeal to be an infringement upon the prerogative of the arbitrators to render an equitable determination, free of judicial interference. Furthermore, it does not appear that any party established that the propriety of the arbitral award must be determined with reference to federal law.

This Court decided that the panel's prior award was in "`manifest disregard' of the law" and, consequently, irrational (Matter of Spear, Leeds & Kellogg v Bullseye Sec., 291 AD2d 255, 256 [2002], quoting Halligan v Piper Jaffray, 148 F3d 197, 204 [2d Cir 1998], cert denied 526 US 1034 [1999]). Our ruling that the award of corporate damages to the individual share owners is offensive to federal arbitration principles cannot simply be explained away in disregard of the spirit and letter of our decision (see Atlantic Mut. Ins. Co. v Greater N.Y. Mut. Ins. Co., 271 AD2d 278, 280 [2000] [parties are bound by prior appellate holding]). While the remand order is hardly a model of clarity, the decision explicitly states that "individual claimants, as a matter of law, cannot assert a cause of action to recover for wrongdoing done to a corporation" (291 AD2d at 256). On remand, by stipulation of the parties, the arbitrators conducted no further proceedings; they merely added an explanation for their determination to the award. The stated justification is that Pasquale Schettino, a partner in respondent Spear, Leeds & Kellogg (SLK), "guaranteed that any losses incurred by Joseph and Eva Roffler would be made good by SLK," and that "the failure of SLK to supervise Schettino's activities was the cause of the losses sustained."

That the losses may have been incurred due to the brokerage firm's failure to supervise Schettino and that its partner may have made a promise to petitioners does not detract from the acknowledged fact that the losses are those of their corporation, Bullseye Securities, and not its shareholders. The "derivative injury rule" bars "piercing the corporate veil in reverse in order to recover individually for [corporate] losses" (In re Kaplan, 143 F3d 807, 812 [3d Cir 1998], citing Kagan v Edison Bros. Stores, 907 F2d 690 [7th Cir 1990]). Petitioners elected the benefits of the corporate form, and the law requires them to respect it (see Avon Bard Co. v Aquarian Found., 260 AD2d 207, 212 [1999], appeal dismissed 93 NY2d 998 [1999]).

What is disturbing about this outcome is that it offends the rule that "[c]ourts are generally...