Laurence STONE, Appellant v. BEAR, STEARNS & CO., INC.; J.P. Morgan Securities LLC; Bear, Stearns Securities Corp.; Bear Stearns Asset Management Inc.
No. 12-2827
United States Court of Appeals, Third Circuit
Oct. 29, 2013
169-171
The BIA also rejected Faustov‘s claim for withholding of removal based on an inability to obtain Humulin 70/30 in the Ukraine because Faustov did not show that Humulin 70/30 is withheld from those who need it as a means of persecution. The BIA noted that Humulin 70/30 is not available in the Ukraine, but found no evidence showing that the government is unwilling to offer the treatment to a specific group and thus concluded that Faustov did not show that he faces a clear probability of persecution on account of a protected ground. We agree. See Khan v. Att‘y Gen., 691 F.3d 488, 499 (3d Cir.2012) (lack of access to mental health treatment alone does not create a well-founded fear of persecution); Ixtlilco-Morales v. Keisler, 507 F.3d 651, 655-56 (8th Cir.2007) (alien did not show that inadequate healthcare for HIV-positive individuals in Mexico was an attempt to persecute those with HIV). Because we agree that Faustov‘s claim fails on this basis, we need not address the BIA‘s additional conclusion that persons with diabetes who require Humulin 70/30 are not a “particular social group.”
The BIA also did not err in upholding the denial of relief under the CAT. The BIA found that Faustov had not shown that the Ukrainian government intentionally withholds Humulin 70/30 in order to inflict suffering for a proscribed purpose. Faustov has not shown that the record compels a contrary conclusion. See also Pierre v. Att‘y Gen., 528 F.3d 180, 189 (3d Cir.2008) (stating the CAT requires a petitioner to show that his prospective torturer will have the motive or purpose to cause him pain or suffering).
Finally, Faustov asserts in his brief that he will be tortured by police and mafia members if removed, but he did not challenge the IJ‘s decision to the contrary in his appeal to the BIA. We thus may not consider this claim. See Lin v. Att‘y Gen., 543 F.3d 114, 119-21 (3d Cir.2008) (addressing requirement under
Accordingly, we will deny the petition for review.5
Howard J. Bashman, Esq., Willow Grove, PA, Eric B. Meyer, Esq., James J. Rodgers, Esq., Dilworth Paxson, Philadelphia, PA, for Appellant.
Patrick T. Ryan, III, Esq., Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Eugene L. Small, Esq., Alonso, Andalkar, Toro, Facher & Macavoy, New York, NY, for Bear, Stearns & Co., Inc.; J.P. Morgan Securities LLC; Bear, Stearns Securities Corp.; Bear Stearns Asset Management Inc.
BEFORE: RENDELL, JORDAN and LIPEZ*, Circuit Judges.
RENDELL, Circuit Judge:
Laurence Stone appeals from the District Court‘s denial of his Amended Petition to Vacate an Arbitration Award, and its grant of the Cross-Petition to Confirm that award. We will affirm.
Stone lost millions of dollars investing with Bear Stearns and filed a $7.6 million FINRA arbitration claim seeking to have Bearn Stearns held liable for his losses. The three arbitrators sanctioned Stone for discovery violations and ultimately unanimously rejected all of his claims. After the award was handed down, Stone researched the background of each of the arbitrators, Jerrilyn Marston, whose previously disclosed biography indicated that she had a “Family Member” associated with the University of Pennsylvania. Marston had disclosed to FINRA that her husband was a well-known professor of finance at the Wharton School and that he regularly lectured to brokerage firms, financial consultants, banks, and investors. FINRA never included this information in Marston‘s biography.
Stone brought this action in the District Court contending that the award should be vacated because Marston had demonstrated “evident partiality” against him by virtue of her purported failure to disclose,
The District Court, in a thoughtful and thorough opinion rejected Stone‘s arguments. The Court noted that arbitration awards are entitled to extreme deference, Dluhos v. Strasberg, 321 F.3d 365, 370 (3d Cir.2003), and the statutory grounds for vacatur focus on “egregious departures from the parties’ agreed-upon arbitration.” Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 586, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
The Court not only took issue with Stone‘s contention that there was “evident partially” on the part of Marston, but also decided that Stone‘s belated raising of the issue constituted a waiver of any challenge he might have leveled against her.
While the parties note that the concepts of “evident partiality” and “waiver” could be further explored by our Court, we believe that this case does not provide the factual setting in which to do so. First, the facts here do not present a close case as to either issue. Second, there is nothing egregious about the award that was unanimously agreed upon by the arbitra-
Accordingly, for the reasons set forth by the District Court, we will affirm.
RENDELL, Circuit Judge
* Honorable Kermit V. Lipez, Senior United States Circuit Judge for the Court of Appeals for the First Circuit, sitting by designation.