456 F. App'x 8
2d Cir.2011Background
- Rai, pro se, petitioned to vacate a neutrally arbitrated Award against Barclays Capital Inc. under the FAA.
- The district court denied Rai’s petition and granted Barclays’ motion to confirm the Award.
- Rai argued the arbitrators committed misconduct by excluding witness Moore’s testimony and not adjourning for Moore.
- Rai did not request an adjournment at the time; the district court found no evident unfairness in excluding Moore’s testimony.
- On appeal Rai raised new supervisory-control and discrimination arguments, which the court deemed not properly before it.
- The Second Circuit applied de novo review to legal conclusions and clear-error review to factual findings, affirming the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Arbitrator misconduct and Moore testimony | Rai contends exclusion of Moore violated due process. | Arbitrators had plausible grounds for excluding Moore’s testimony; no fundamental unfairness. | No reversible error; deprivation not shown |
| Adjournment and Moore’s testimony | Arbitrators should have adjourned to permit Moore to testify. | Rai did not request adjournment; decision not prejudicial or unfair. | Not warranting vacatur |
| New arguments on appeal | New supervisory-control and discrimination claims show misconduct. | These arguments are waived or not properly before the court. | Claims waived or meritless |
| Review scope | FAA §10(a)(3) review should closely scrutinize factual determinations. | Absent fundamental fairness, arbitral decisions not open for evidentiary review. | Governing standard applied |
| Overall outcome | District court erred in confirming the Award. | No error; Award properly confirmed. | Affirmed district court |
Key Cases Cited
- Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997) (evidentiary challenge to arbitration requires fundamental fairness to override FAA deference)
- Idea Nuova, Inc. v. GM Licensing Group, Inc., 617 F.3d 177 (2d Cir. 2010) (clear-error standard for findings of fact; de novo review for conclusions of law)
- Singleton v. Wulff, 428 U.S. 106 (U.S. 1976) (new claims not properly raised cannot be considered on appeal)
- Weinstock v. Columbia University, 224 F.3d 33 (2d Cir. 2000) (recognizes limits on appellate review of new arguments)
- Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) (issues must be argued and preserved to be reviewable; moot/waived content)