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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1049

## Text

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

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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

la

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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3a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1698%3A2. Public record. Not legal advice.