Opposition Brief — DiRussa v. Dean Witter Reynolds, Inc.

A

No. 97-773

In The

Supreme Court of the United States

o

October Term, 1997

RAYMOND J. DiRUSSA,

Petitioner,

VS.

DEAN WITTER REYNOLDS, INC. and LAWRENCE J.

SOLARI, JR.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

RONALD M. GREEN

Counsel of Record

EPSTEIN BECKER & GREEN, P.C.

Attorneys for Respondents

250 Park Avenue

New York, New York 10177-0077

(212) 351-4646

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COUNTER-STATEMENT OF THE

QUESTIONS PRESENTED

1. Should this Court exercise its discretionary jurisdiction

to determine whether arbitral awards arising out of employment

discrimination claims should be subject to a standard of review

by the courts more rigorous than the manifest disregard of the

law standard where: (a) Petitioner failed to properly preserve

this argument below; (b) the Second Circuit did not pass upon

this issue; (c) there is nothing in any decision of this Court

indicating a different standard should apply to arbitrated

employment discrimination claims as opposed to other arbitrated

Statutory or non-statutory claims; and (d) it was not the

“rigorous” standard of review imposed by the manifest disregard

of the law standard which denied Petitioner his attorneys’ fees

but rather his own failure to properly request them in the first

instance at arbitration?

2. Should this Court exercise its discretionary jurisdiction

to hear the issue of whether the arbitrators’ refusal to award

Petitioner attorneys’ fees violates public policy where: (a)

Petitioner failed to properly preserve this argument below; and

(b) this argument is: (i) a reformulation of his earlier argument

and suffers from the same defects; (ii) nothing more than

Petitioner’s assertion that the Second Circuit misapplied a

properly stated rule of law to the facts?

ii

STATEMENT PURSUANT TO RULE 29.6

The parent company of Dean Witter Reynolds Inc. is Morgan

Stanley, Dean Witter, Discover & Co. Dean Witter Reynolds

Inc. has no nonwholly owned subsidiaries.

ili

TABLE OF CONTENTS

Page

Counter-Statement of the Questions Presented ....... i

Statement Pursuant to Rule 29.6 .................. ii

Se OE os oh coer eR Sc lil

ME i on yo iv

Counterstatement of the Case ..................... l

Reasons for Denying the Writ .................... 4

I. Petitioner Violated The Orders Of The United

States District Court And The United States Court

Of Appeals In Filing His Petition. It Should Be

Deemed A Nullity And Dismissed As Untimely.

Ee Oe WAN be Wk SS gos 'y boo Se sb Wk ok sk bebe Cx 6

II. There Exists No Basis On Which To Conclude That

Arbitral Awards Arising From Discrimination

Claims Should Be Subject To A Heightened

Gem OE BVIOW. os ek 2 7

III. Petitioner’s Public Policy Argument Is Nothing

More Than An Assertion That The Second Circuit

Misapplied A Properly Stated Rule Of Law To The

Facts. This Is Not Sufficient To Warrant Review

ee SV 00 SC 5 ER UER RN os orb dah 13

I ee ee 14

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Chisolm v. Kidder, Peabody Asset Mgt., Inc., 966 F. Supp.

256 Coat. AONE: hav ko keenest 12

Cole v. Burns International Security Services, 105 F.3d

1465 COA. Cit, F087) nos és cukcs ops hnntees fs 9

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938

CAGGS) avs nck ok ee 0a os hae ae 10

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .. 9

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

CG ob ka wb ces be a ee ae eee 9,10, 12

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips

Corm,, SAG ALB. ZF CAGE) « ahi os ctnnend ceases 9

Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022 (Sth Cir.

FOR veka a bs 500 Case ak ve ron coos ee ees 12

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

RTD E5.D Gt CIDE) i 5k ins i Ga eee 12

PPG Indus., Inc. v. Webster Auto Parts, Inc., No. 96-7429,

1997 WL 643642 (2d Cir. Oct. 20, 1997) ......... 11

Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th

COR SUE civ h choc hae ieee sree ee as wenn 1]

Contents

Page

Shearson/American Express, Inc. v. McMahon, 482 U.S.

Pe So Pe By ei ges gem p sem ae as area: 12

Springfield v. Kibbe, 480 U.S. 257 (1987) ........... 9

United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762

Seek Gls SED co Vicvw ave bas ESRC IS ewe be eked 11

United Paperworkers International Union v. Misco, Inc.,

og chi OB tk 1p Cet ere Poa tes 13, 14

United States v. Williams, 504 U.S. 36 (1992) ........ 9

Wilko v. Swan, 346 U.S. 427 (1953), overruled on other

grounds, Rodriguez de Quijas v. Shearson/Am. Express,

Beg Mee Sees EE CRE ins ca coo ak wR hae 10

Statutes Cited:

ER Re Ew 6 ack Fin bs ec cacuns 11

Me Sis SE ek oe eee eck sk chan 2

N.J. Stat. Ann. §§ 10:5-27.1 et seg. ...........0000- 2

Rule Cited:

Ps es RM ee oa Se ee ee £5 5 RE eS 11

vi

Contents

PCO CUE RRO ED. sia kick sais CR 4A Ranson neds

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APPENDIX

Appendix A — Correspondence Between the Parties

Page

la

l

Respondents Dean Witter Reynolds Inc. and Lawrence J.

Solari, Jr., (collectively referred to as “Dean Witter” or

“Respondents”) request that the Court deny the petition for a

writ of certiorari filed by Raymond J. DiRussa (“DiRussa” or

“Petitioner”) to review the decision of the United States Court

of Appeals for the Second Circuit affirming the judgment of the

United States District Court, Southern District of New York

which: (1) denied DiRussa’s motion to vacate and/or modify an

arbitration award rendered by a Panel of Arbitrators (“Panel”)

of the National Association of Securities Dealers, lac.

(“NASD”); (2) granted Dean Witter’s cross-motion to confirm

the arbitration award; and (3) ruled that the entire file of

proceedings before the district court should remain under seal,

except for the district court’s July 7, 1995, October 20, 1995

and July 24, 1996 orders and opinions that were placed in the

district court’s public file.

COUNTERSTATEMENT OF THE CASE

On December 11, 1992 DiRussa filed a Statement of Claim

with the NASD.' He alleged that his removal from his position

as Branch Manuger of Dean Witter’s Ridgewood, New Jersey

1. DiRussa asserts in his Petition that

[w]hen the EEOC [Equal Employment Opportunity

Commission] declined to pursue DiRussa’s claim, he

submitted it to an arbitration panel of the National

Association of Securities Dealers... .

(Petition for a Writ of Certiorari to the United States Court of Appeals

for the Second Circuit dated November 3, 1997 (“Pet.”) at p. 3.) Petitioner

is inexact. First, his Statement of Claim was submitted to the NASD

approximately one month before he filed a Charge of Discrimination with

the EEOC. Second, the EEOC did not decline to pursue his claim but

rather dismissed it after investigation, finding no probable cause to believe

that DiRussa had been discriminated against.

2

branch violated the Age Discrimination in Employment Act of

1967, 29 U.S.C. §§ 621 et seq. (“ADEA”), and the New Jersey

Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-27.1 et seq.

(“NJLAD”). Plaintiff sought: reinstatement to his position and/

or prospective lost wages and benefits; liquidated, punitive and

compensatory damages; and attorneys’ fees and costs. By

opinion and award dated March 14, 1995, the Panel awarded

DiRussa a fraction of the over $17,000,000 he sought from Dean

Witter — a total of $220,000 for all damages claimed. The Panel

denied all other requested relief. (See pp. 31-42 of the Appendix

to the Petition for a Writ of Certiorari to the United States Court

of Appeals for the Second Circuit dated November 3, 1997 (“Pet.

App.”).)

During the course of the arbitration, the parties entered into

a Confidentiality Agreement (the “Agreement”), which governed

documents and information produced by the parties. The

Agreement specifically provides that:

[a]ll documents, information and all information

contained in documents produced by the parties and

obtained solely by virtue of their production by an

opposing party in the course of this NASD arbitration

(the “produced materials or information”) shall be

used only for the purpose of this NASD arbitration

or any proceeding in any court of competent

jurisdiction in connection with this NASD

arbitration...

(Pet. App. at 18). The Agreement further provides that produced

materials or information may not be disclosed, shown, or

otherwise revealed or made available to anyone, directly or

indirectly, other than:

(e) courts, court reporters and employees, as may be

3

required in connection with this NASD arbitration,

provided that such papers are filed under seal or

partial seal, as necessary, to protect the

confidentiality of the produced materials or

information.

(Pet. App. at 18) (emphasis added).

On June 14, 1995, DiRussa filed a Complaint and a motion

with the United States District Court, Southern District of New

York in which he sought, among other things, modification of

the arbitration award to add and include an award of attorneys’

fees, because the Panel acted in manifest disregard of the law in

failing to award such fees.? Dean Witter opposed DiRussa’s

motion and cross-moved to confirm the arbitration award.

Upon learning that the documents filed by plaintiff with

the district court had not been filed under seal as mandated by

the Agreement, defendants requested that DiRussa take the steps

necessary to comply with the parties’ Agreement. He refused.

By Order dated July 7, 1995, the district court, at Dean

Witter’s request, directed the Clerk of the Court to place the

entire file under seal pending further order. (Pet. App. at i8-

19.) By Memorandum and Order dated July 24, 1996, the district

court: (a) denied DiRussa’s motion in its entirety; (b) granted

Dean Witter’s cross-motion to confirm the arbitration award:

and (c) reaffirmed its July 7, 1995 Order sealing the file, except

for its three decisions. (Pet. App. at 30.)

2. On or about October 25, 1995 plaintiff filed an Amended

Complaint with the district court to cure his defective jurisdictional

allegations. His challenge to the Panel's failure to award him attorneys’

fees in his Amended Complaint is identical to his initial Complaint, and

again was based solely on the Panel's purported “manifest disregard of

law” and no other basis.

4

By Notice of Appeal dated August 20, 1996, DiRussa

appealed to the United States Court of Appeals for the Second

Circuit. In furtherance of his appeal, DiRussa filed various

documents with the Second Circuit which were part of the file

sealed by the district court. Then in blatant disregard of the

district court Orders, DiRussa once did not, and again refused

to, take the steps necessary to seal the file now before the Second

Circuit pending his appeal. Thus, Dean Witter sought relief. By

Order dated October 28, 1996 the Second Circuit “granted

defendants’ motion to seal all documents submitted in this court

that were also subject to the district court’s sealing order.” (Pet.

App. at 5.)

On August 5, 1997 the United States Court of Appeals for

the Second Circuit affirmed the decision of the district court in

its entirety. (Pet. App. at 1-22.) The court held that: (a) “we find

no ground on which to modify the arbitration award to include

attorney’s fees”; and (b) “[uJnder all the circumstances, we

cannot say that the district court abused its discretion in sealing

the file, except for the court’s orders and opinions in this case.”

(Pet. App. at 17, 22.)

Petitioner seeks the Court’s review on a writ of certiorari

on the first of these issues.

REASONS FOR DENYING THE WRIT

Although Petitioner ostensibly asserts that the writ should

be granted because the Second Circuit: (a) “decided an important

question of federal law that has not been, but should be, settled

by the Court,” and (b) “decided an important federal question

in a way that conflicts with relevant decisions of this Court,” it

in fact did no such thing. (Pet. at 6-12, 12-18.) Petitioner has

stated no compelling reason why a writ of certiorari should be

granted.

5

First, Petitioner makes the identical legal arguments which

he raised for the first time on appeal and which the Second

Circuit ruled he had waived by failing to present to the district

court. The Court should not review issues that Petitioner failed

to preserve below properly and that the Second Circuit per force

did not pass upon.

Second, the Court has already established a standard of

review sufficiently rigorous for arbitral awards arising from

employment discrimination actions — the manifest-disregard-

of-the-law standard. Indeed, it was not the rigors of that standard

which resulted in Petitioner not being awarded attorneys’ fees

but, rather, his own failure to request them properly in the first

instance.

Third, there is absolutely nothing in any decision of the

Court indicating that the scope of review for arbitrated Statutory

claims is any different from any other arbitrated claims.

Fourth, Petitioner’s argument is inconsistent and unduly

narrow. He fails to explain why only arbitrated Statutory

employment discrimination claims, but not other arbitrated

Statutory claims, should be subject to a heightened standard of

review, and none exists.

Finally, his argument that the Second Circuit “missed the

point” that the arbitration Panel violated public policy by

refusing to award him attorneys’ fees is nothing more than: (1)

a reformulation of his first point and fails for the reasons

discussed above; and (2) an assertion that the Second Circuit

misapplied the law to the facts.

Respondents respectfully request that the Court decline to

exercise jurisdiction and deny the petition for a writ of certiorari.

6

I.

PETITIONER VIOLATED THE ORDERS OF THE

UNITED STATES DISTRICT COURT AND THE UNITED

STATES COURT OF APPEALS IN FILING HIS

PETITION. IT SHOULD BE DEEMED A NULLITY AND

DISMISSED AS UNTIMELY.

Rule 13 of the Rules of the Supreme Court of the United

<A States (“Supreme Court Rules”) provides that:

a petition for a writ of certiorari to review a judgment

in any case, civil or criminal, entered by a state court

of last resort or a United States court of appeals

(including the United States court of appeals for the

Armed Forces) is timely when it is filed with the

Clerk of this Court within 90 days after entry of the

judgment. |

Supreme Court Rules, Rule 13(1).

The Second Circuit entered its decision on August 5, 1997.

DiRussa filed his petition on November 3, 1997 — the 90th day

after the Second Circuit decision. Annexed to DiRussa’s petition

is, among other things: (1) the Judgment of the United States

District Court, Southern District of New York; (2) DiRussa’s

Amended Complaint filed with the district court; and (3)

DiRussa’s Statement of Claim filed with the NASD. These

documents remain sealed by the: (a) district court’s: (i) Order

of July 7, 1995; and (ii) July 24, 1996 Memorandum and Order;

and (b) Second Circuit's: (i) October 28, 1996 Order; and (ii) :

August 5, 1997 decision.

Continuing in his disregard for those orders, DiRussa yet

again did not file his petition under seal and has since cavalierly

7

admitted that in doing so he “technically violated the seal of the

Second Circuit,” and indeed has requested that Respondents

waive their objections to such violation. (Respondents’ Appendix

(“Resp. App.”) at 1a.) Respondents refused, and informed

Petitioner that his noncompliance with those sealing orders

rendered his petition a nullity. (Resp. App. at 3a-4a.) DiRussa

quickly backpeddled and now asserts that “[w]e do not agree

that there has been any violation of the Second Circuit Order.”

(Resp. App. at Sa.) Respondents demanded that he immediately

take the steps necessary to comply with the district court and

Second Circuit Orders. (Resp. App. at 7a-8a.) He finally

indicated he would do so. (Resp. App. at 9a.) That, however, is

not sufficient. It is too late.

Petitioner cannot ignore federal court orders. He is in

violation of them. His petition for a writ of certiorari, which

was not properly filed within 90 days of entry of the Second

Circuit decision, should be deemed untimely, an infirmity which

cannot be cured after the fact. It should be dismissed.?

Il.

THERE EXISTS NO BASIS ON WHICH TO

CONCLUDE THAT ARBITRAL AWARDS ARISING FROM

DISCRIMINATION CLAIMS SHOULD BE SUBJECT TO

A HEIGHTENED STANDARD OF REVIEW.

Rule 10 of the Rules of the Supreme Court of the United

States makes clear that petitions for a writ of certiorari are

granted only under the most compelling circumstances, as

follows:

3. The amount of litigation between the parties at the district court

and appellate levels on the issue pertaining to the Confidentiality

Agreement and sealing the file belies any claim of oversight by DiRussa

on this point.

8

Review on a writ of certiorari is not a matter of right,

but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling

reasons...

(a) a United States court of appeals has entered

a decision in conflict with the decision of another

United States court of appeals on the same important

matter; has decided an important federal question in

a way that conflicts with a decision by a state court

of last resort; or has so far departed from the accepted

and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that conflicts

with the decision of another state court of last resort

or of a United States court of appeals;

(c) a state court or a United States court of

appeals has decided an important question of federal

law that has not been, but should be, settled by this

Court, or has decided an important federal question

in a way that conflicts with relevant decisions of this

Court.

A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated I

rule of law.

Supreme Court Rules, Rule 10.

9

Petitioner contends that since “{t]he manifest disregard of

law standard of review as applied by the Second Circuit in the

case at bar is far too limited to achieve the effect intended by

this Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20 (1991)” certiorari should be granted “to establish a standard

of review of arbitration decisions which ensures that the promise

of Gilmer is kept. . . .” (Pet. at 10,12.) Petitioner goes on to assert

that a more lenient standard enunciated by the District of

Columbia Circuit Court of Appeals in Cole v. Burns International

Security Services, 105 F.3d 1465, 1487 (D.C. Cir. 1997) and

one which according to that court “is sufficiently rigorous to

ensure that arbitrators have properly interpreted and applied

statutory law” is the appropriate one to review arbitral decisions

such as the one here. (Pet. at 10-11.) Petitioner, however, fails

to note that he did not present this argument to the district court,

but rather raised it for the first time before the Second Circuit.

Since DiRussa had not properly preserved the argument below,

the Second Circuit did not address this issue on the merits but

rather held that he waived this argument. (Pet. App. at 7-8.)

Petitioner cannot obtain review of an issue that: (1) he failed

to raise in the district court; (2) was deemed waived on appeal;

and (3) the Second Circuit did not rule on. See, e.g., lzumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S.

27, 33 n.7 (1993); United States v. Williams, 504 U.S. 36, 40

(1992) (Supreme Court generally will not review an issue that

“was not pressed or passed upon below” except in extraordinary

circumstances); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

224 & 237 (1990); Springfield v. Kibbe, 480 U.S. 257, 258 (1987)

(“[t]he standard we previously have employed is that we will

not review a question not pressed or passed on by the courts

below”).4

4. Although the rule is stated in the disjunctive, that does not help

Petitioner. While this issue was not passed upon below, Petitioner will

most assuredl’ assert that it was at least pressed before the court of

(Cont'd)

10

Notwithstanding this failure, Petitioner’s request fails on

the merits as well. First, this Court has already indicated that

arbitration awards can be vacated if they are in “ ‘manifest

disregard’ of the law.” See, e.g., First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 942 (1995) (citation omitted); Wilko v.

Swan, 346 U.S. 427, 436-37 (1953), overruled on other grounds,

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477 (1989). Thus, this Court has already established a standard

of review of arbitration awards that ensures that employment

discrimination victims are not denied the substantive statutory

rights and remedies provided by Congress. Indeed, this standard

had been articulated almost forty (40) years prior to the Court’s

decision in Gilmer, 500 U.S. at 32 n.4, in which it reiterated

“that ‘although judicial scrutiny of arbitration awards necessarily

is limited, such review is sufficient to ensure that arbitrators

comply with the requirements of the statute’ at issue.” (Citations

omitted.) Indeed, Petitioner’s failure to receive his attorneys’

fees was not the result of an overly limited standard of review,

as he claims but, rather, his own failings in his presentation to

the arbitral panel. As the Second Circuit properly noted:

at no point did DiRussa communicate — either by

written submission or orally — to the arbitrators that

the ADEA mandated such an award to a prevailing

party. Indeed in what is apparently the only brief

DiRussa submitted to the arbitrators regarding

attorney's fees, he focused on NJLAD’s provisions

regarding the “lodestar” calculation of attorney’s fees

Cont'd

prrwahy Respondent respectfully submits that to have properly pressed

an argument below means to have done so before both the district and

appellate courts. To permit review of issues by the court raised for the

first time at the appellate level and not considered by that court would

eviscerate the waiver rule relied upon by the Second Circuit and permit

review of issues raised for the first time on appeal but not raised before

the district court.

1]

and whether upward enhancement of that figure was

warranted. Nowhere in this submission does DiRussa

either explain that the ADEA reguires an award of

attorney’s fees or quote the language of the relevant

ADEA section, which clearly communicates that

principle. In view of DiRussa’s failure to inform the

arbitrators of the relevant legal standard, we are hard-

pressed to infer that they consciously disregarded

the ADEA’s fee provisions.

(Pet. App. at 10.) (emphasis in original)°

All DiRussa had to do was make such a statement and he

would have received his fees either by the NASD panel or upon

court review. He did not. DiRussa allowed the arbitration panel

to believe they had the discretion to award fees. They proceeded

to exercise that discretion. The manifest disregard of the law

Standard did not deny him his fees, but rather his own

imprecision did. Whether in arbitration or a judicial forum, the

law is replete with instances in which a party’s own failure to

preserve properly his or her rights acts as a waiver thereof. See,

e.g., PPG Indus., Inc. v. Webster Auto Parts, Inc., No. 96-7429,

1997 WL 643642 (2d Cir. Oct. 20, 1997) (through conduct in

litigation party waived right to seek arbitration of dispute);

United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 766 (Sth

Cir. 1996) (“It is undisputed that United did not file a motion

for attorneys’ fees within fourteen days of entry of judgment as

required by Rule 54(d). This failure to file within the allotted

period serves as a waiver of its claim for attorneys’ fees.”);

Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261 (7th

Cir. 1989) (“we hold that when a matter has been referred to a

magistrate, acting as a special master pursuant to 28 U.S.C.

§ 636(b)(2) and Fed. R. Civ. P. 53, a party waives his right to

5. DiRussa’s presentation to the Panel on his request for attorneys’

fees under the NJLAD was similarly lacking. (Pet. App. at 12-13.)

12

appeal if he has not preserved the issues for appeal by first

presenting them to the district court as objections to the

magistrate’s report”) (footnote omitted); Mesa Petroleum Co. v.

Coniglio, 629 F.2d 1022, 1028-29 (Sth Cir. 1980) (party waived

a right to jury trial due to its failure timely to request same).

Second, while it is true that the Supreme Court has indicated

that statutory rights are not surrendered when a party agrees to

arbitrate and that judicial review, though limited, is sufficient

to insure that arbitrators comply with the law, Gilmer, 500 U.S.

at 28; Shearson/American Express, Inc. v. McMahon, 482 U.S.

220, 232 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 637 (1985), there is absolutely

nothing in any Supreme Court decision which indicates that the

scope of review for statutory claims is any different from any

other arbitrated claims. See Chisolm v. Kidder, Peabody Asset

Mgt., Inc., 966 F. Supp. 218, 226-27 (S.D.N.Y. 1997).

Third, Petitioner’s argument, citing Supreme Court cases

involving a variety of different statutory claims varying from

the Sherman Antitrust Act to the ADEA, is unduly narrow and

inconsistent. He inexplicably asserts that only arbitral awards

from employment discrimination claims but not other statutory

claims require a heightened standard of review. (Pet. at 6-12.)

However, there is absolutely nothing in the case law which

supports this conclusion, and in fact in Gilmer this Court rejected

the argument that civil rights claims, like those brought under

the ADEA, somehow stood on a different footing and should be

treated any differently than other statutory claims when it comes

to arbitration. Gilmer, 500 U.S. at 27-29. Indeed, “[t]he Sherman

Act, the Securities Exchange Act of 1934, RICO, and the

Securities Act of 1933 [under which claims can be arbitrated

pursuant to a valid arbitration agreement] all are designed to

advance important public policies.” Gilmer, 500 U.S. at 28, as

are the ADEA and other civil rights laws.

a

13

For the foregoing reasons, the Court should not exercise its

discretionary jurisdiction to review this issue.®

Il.

PETITIONER’S PUBLIC POLICY ARGUMENT IS

NOTHING MORE THAN AN ASSERTION THAT THE

SECOND CIRCUIT MISAPPLIED A PROPERLY STATED

RULE OF LAW TO THE FACTS. THIS IS NOT

SUFFICIENT TO WARRANT REVIEW BY THIS COURT.

Petitioner’s second argument fares no better. He asserts that

the Second Circuit decision conflicts with the Court’s decision

in United Paperworkers International Union v. Misco, Inc., 484

U.S. 29 (1987). (Pet. at 12-18.) His request for certiorari on this

point fails as well.

This argument is nothing more than a reformulation of his

first one. He asserts that a standard of review less deferential

than manifest disregard of the law is appropriate when certain

narrow and limited statutory rights are involved. This argument

fails for three reasons.

First, the Second Circuit declined to address that question

because of DiRussa’s failure to raise it at the district court level.

(Pet. App. at 17.) DiRussa cannot now seek review of this issue.

Second, even if DiRussa had properly preserved that

argument below, for the reasons discussed above, DiRussa has

not proffered sufficient reason to modify the manifest disregard

of the law standard.

Finally, DiRussa is really arguing that the Second Circuit’s

6. Contrary to DiRussa’s assertion, Dean Witter did in fact contest

at the arbitration his entitlement to attorneys’ fees.

I

decision, that the arbitral panei’s refusal to award attorneys’ fees

does not per se violate public policy, conflicts with the Court’s

decision in Misco. There is no such conflict. The Second Circuit

recognized and properly stated the correct rule of law as

enunciated in Misco. What Petitioner is really arguing is that

the Second Circuit misapplied a properly stated rule of law to

the facts of this case. That is not sufficient to warrant review by

the Court.

CONCLUSION

For the foregoing reasons, Respondents respectfully request

that the petition for a writ of certiorari be denied.

Respectfully submitted,

RONALD M. GREEN

Counsel of Record

EPSTEIN BECKER & GREEN, P.C.

Attorneys for Respondents

250 Park Avenue

New York, New York 10177-0077

(212) 351-4646

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APPENDIX A — CORRESPONDENCE BETWEEN

THE PARTIES

BARRY & McMORAN

A PROFESSIONAL CORPORATION

COUNSELLORS AT LAW

ONE NEWARK CENTER

NEWARK, NEW JERSEY 07102

(973) 624-6500

FAX: (973) 624-4052

Writer’s Direct Dial Writer’s Direct Fax

(973) 642-6830 (973) 623-4605

November 7, 1997

Ronald M. Green, Esq.

Epstein, Becker and Green

250 Park Avenue

New York, New York 10177-0077

Re: DiRussa v. Dean Witter

Dear Mr. Green:

On Monday, November 3, 1997, we filed a petition for a

writ of certiorari to the United States Court of Appeals for the

Second Circuit in the United States Supreme Court. In so doing,

we may have technically violated the seal of the Second Circuit

sinc? we included in the Appendix, the Arbitration demand, the

Arbitration Award' and our Amended complaint in the District

1. As the Second Circuit pointed out, this award is available to the

public through Westlaw.

2a

Appendix A

Court. Of course, none of these items were covered by the

Confidentiality Agreement of March 10, 1994.

We would ask that you agree to waive any claim of violation

which may have been committed as a result of this filing. If you

do, please so indicate on the enclosed copy of this letter and

return it to us. If you do not agree to waive, please advise us

promptly so that we may file an appropriate motion.

Very truly yours,

s/ Bruce P. McMoran

BRUCE P. MCMORAN

BPM/p1/204425

I agree to waive any claim of violation that may have occurred

as a result of the filing of the Petition for a Writ of Certiorari.

Ronald M. Green, Esq.

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Appendix A

EPSTEIN BECKER & GREEN, P.C.

ATTORNEYS AT LAW

250 PARK AVENUE

NEW YORK, NEW YORK 10177-0077"

(212) 351-4500

TELEX 5101008171

FAX: (212) 681-0989

DIRECT LINE

351-4646

November 13, 1997

VIA TELECOPIER

Bruce P. McMoran, Esq.

Barry & McMoran

One Newark Center

Newark, New Jersey 07102

Re: Raymond J. DiRussa v. Dean Witter Reynolds Inc.

and Lawrence J. Solari, Jr.

Docket No. 97-0773

Dear Mr. McMoran:

We are in receipt of your November 7, 1997 letter requesting

that Respondents “agree to waive any claim of vioiation” which

may have been committed as a result of the filing of Petitioner's

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit. Respondents agree that

Petitioner violated the Second Circuit Order but disagree with

4a

Appendix A

his assertion that “none of these items [referenced in the

November 7 letter] were covered by the Confidentiality

Agreement of March 10, 1994.” Thus, respondents will not agree

to waive Petitioner’s violation. Moreover, Petitioner’s failure to

properly file this Petition under seal in the first instance, renders

the filing a nullity which he cannot now, after the fact, cure.

Thus, his Petition is now untimely.

Very truly yours,

s/ Ronald M. Green

Ronald M. Green

RMG: jlm

cc: Kenneth W. DiGia, Esq.

Sa

Appendix A

BARRY & McMORAN

A PROFESSIONAL CORPORATION

COUNSELLORS AT LAW

ONE NEWARK CENTER

NEWARK, NEW JERSEY 07102

(973) 624-6500

FAX: (973) 624-4052

Writer’s Direct Dial Writer’s Direct Fax

(973) 642-6830 (973) 623-4605

November 14, 1997

Ronald M. Green, Esq.

Epstein, Becker and Green

250 Park Avenue

New York, New York 10177-0077

Re: DiRussa v. Dean Witter

Dear Mr. Green:

We are in receipt of your November 13, 1997 letter. We do

not agree that there has been any violation of the Second Circuit

Order. The Arbitration Award is a public document available to

all through Westlaw. Plaintiff's Amended Complaint and

Arbitration Demand, of course, are not subject to any

Confidentiality Agreement. Such documents were not obtained

from defendants, but drafted by us.

We further disagree with your cliam that plaintiff's Petition

is somehow “now untimely.” The Petition was timely filed on

6a

Appendix A

November 3, 1997 and was docketed by the Supreme Court on

November 5, 1997. According to the Court’s Notice that we

previously provided to you, defendants’ opposition brief is due

on December 5, 1997.

Very truly yours,

s/ Bruce P. McMoran

BRUCE P. McCMORAN

7a

Appendix A

EPSTEIN BECKER & GREEN, P.C.

ATTORNEYS AT LAW

250 PARK AVENUE

NEW YORK, NEW YORK 10177-0077"

(212) 351-4500

TELEX 5101008171

FAX: (212) 681-0989

DIRECT LINE

351-4646

November 19, 1997

VIA TELECOPIER

Bruce P. McMoran, Esq.

Barry & McMoran

One Newark Center

Newark, New Jersey 07102

Re: Raymond J. DiRussa v. Dean Witter Reynolds Inc.

and Lawrence J. Solari, Jr.

Docket No. 97-0773

Dear Mr. McMoran:

We are in receipt of your November 14, 1997 letter. The

federal district court Orders, as affirmed by the United States

Court of Appeals for the Second Circuit, are clear and

unequivocal and impose upon Petitioner the duty to have filed

his Petition for a Writ of Certiorari to the United States Court

of Appeals for the Second Circuit under seal. Consequently, we

8a

Appendix A

demand that you immediately take the steps required to comply

with those Orders. Failure to do so will result in Respondents

taking all steps necessary to protect their interests. We trust that

will not be necessary.

Thank you for your anticipated cooperation.

Very truly yours,

s/ Ronald M. Green

Ronald M. Green

RMG: jim

cc: Kenneth W. DiGia, Esq.

9a

Appendix A

BARRY & McMORAN

A PROFESSIONAL CORPORATION

COUNSELLORS AT LAW

ONE NEWARK CENTER

NEWARK, NEW JERSEY 07102

(973) 624-6500

FAX: (973) 624-4052

Writer’s Direct Dial Writer’s Direct Fax

(973) 642-6830 (973) 623-4605

November 21, 1997

Ronald M. Green, Esq.

Epstein, Becker and Green

250 Park Avenue

New York, New York 10177-0077

Re: DiRussa v. Dean Witter

Dear Mr. Green:

We are in receipt of your November 14, 1997 letter. As

previously stated, we do not agree that there has been any

violation of the Second Circuit Order. The Arbitration Award is

a public document available to all through Westlaw. Plaintiff's

Amended Complaint and Arbitration Demand were drafted by

counsel. In any event, we will soon be filing an appropriate

application with the court to resolve the issue.

Very truly yours,

s/ Bruce P. McMoran

BRUCE P. McMORAN