Opinion
102411/08.
Decided April 6, 2009.
Petitioners GFI Securities, LLC, GFI Group, Inc. and Jersey Partners, Inc. (collectively "GFI") move to confirm an arbitration award dated February 5, 2008 (the "Award") of the Financial Industry Regulatory Authority ("FINRA") formerly the National Association of Securities Dealers ("NASD"), pursuant to CPLR 7510 and section 9 of the Federal Arbitration Act ("FAA") . Respondent Chaim Levin ("Levin") opposes the petition and cross moves to vacate the Award pursuant to CPLR 7511 or, in the alternative, under section 10 of the FAA. For the reasons below, the motion is granted and the cross motion is denied.
In 2007, the regulatory arm of the NASD merged with the New York Stock Exchange and adopted the FINRA name. For ease of reference, this opinion will continue to use the more familiar NASD name.
Background
GFI and Levin entered into an employment agreement, effective as of July 19, 1999 ("the Employment Agreement"), pursuant to which GFI agreed to employ Levin as its general counsel and chief legal officer for a term of five years.
Section 10(B) of the Employment Agreement provides, in relevant part, that GFI could terminate Levin's employment:
for cause at any time forthwith and without notice or liability [to Levin]. Cause shall mean (i) [Levin's] continuing intentional failure to comply with the material terms of this Agreement . . . after GFI tendered [Levin] no less than thirty (30) days written notice of such failure, identifying in specific detail the failures alleged by GFI (the "Notice"), . . . (iii) material disregard of any notice, policy, or rule adopted by the Company applicable to other senior executives of [GFI].
Section 11 of the Employment Agreement, entitled Additional Remedies, provides that "if [GFI] so elects, [it] shall be entitled in addition all other remedies available, including but not limited to actual, compensatory, and punitive damages, to obtain damages and reimbursement of its actual attorneys fees and disbursements for any material breach of this Agreement. . . ." The Agreement provides that it "shall be governed, construed, interpreted and enforced in accordance with the laws of the State of New York. . . ."
The Employment Agreement contains an arbitration provision which states:
Arbitration. Any disputes or controversies arising under or in connection with this Agreement shall be settled by NASD arbitration if the matter is eligible for such arbitration and the NASD agrees to arbitrate [ sic] otherwise all disputes or controversies arising under or in connection with this Agreement shall be settled by arbitration conducted before a panel of three arbitrators in New York, New York, under the auspices and in accordance with the rules of the American Arbitration Association then in effect.
(Employment Agreement, ¶ 15.)
GFI suspended Levin with pay on April 15, 2002, and terminated his employment on May 6, 2002. The suspension occurred after Levin sought a $100,000 bonus based on a handwritten addendum dated July 15, 1999, which he asserted was part of the Employment Agreement. GFI maintained that it did not agree to the terms of the July 15, 1999 addendum, and that Levin forged the initials of its Chief Executive Officer Michael Gooch ("Gooch"), on the addendum. By memorandum dated April 15, 2002 from Gooch to Levin, GFI notified Levin that he had been suspended for 30 days without pay, and directed him to respond to a questionnaire containing 19 questions, related to his attendance, the Employment Agreement, the July 15, 1999 addendum, and his compensation, by April 29, 2002. The memorandum also suggested that GFI and Levin resolve any dispute through mediation.
By letter dated April 29, 2002, Levin's attorney wrote to GFI's counsel that he had advised Levin not to answer "the interrogatories" in the questionnaire which were "in the nature of pre-litigation discovery requests ( cf. CPLR 3102(c))," unless GFI agreed to certain conditions, including that Levin receive the remainder of his year-end bonus in the amount of $100,000. By letter dated May 2, 2002, GFI's counsel notified Levin, through his counsel, that GFI rejected Levin's conditions and stated that if Levin did not immediately cooperate with GFI's investigation and fully answer the questionnaire, his suspension would be converted into the termination of employment by May 6, 2002. Levin did not answer the questionnaire and by letter dated May 15, 2002, GFI notified Levin that his employment was terminated effective May 6, 2002 at 5:00 p.m.
On or about June 28, 2002, Levin commenced an arbitration proceeding (the NASD Arbitration) before the National Association of Securities Dealers (NASD) against four GFI-affiliated entities.
Levin's Statement of Claim ("Statement") in the NASD Arbitration alleges that Levin performed his duties as a senior executive of GFI in an exemplary manner, but that he was the innocent victim of a power struggle which developed among three senior executives — Stephen McMillan, Colin Heffron, and Donald Fewer — who reported directly to Gooch. In the course of that power struggle, McMillan allegedly engaged in a secret campaign to discredit and isolate Levin, and to terminate his employment, because: Levin was too close to Gooch and/or to McMillan's rivals; Levin had become aware of certain improprieties committed by McMillan, and McMillan was concerned that Levin might disclose those improprieties to outside investors or regulators; and McMillan wanted exclusive control over decisions and responsibilities which had previously been assigned to Levin.
The Statement of Claim further alleges that the Employment Agreement was amended by a hand-written addendum, which was initialed by Gooch on the same day that he and Levin executed the Employment Agreement. According to the Statement, McMillan succeeded in his secret campaign against Levin, to the extent that Levin was deprived of certain of the rights and responsibilities guaranteed to him under the Employment Agreement and the purported addendum. The Statement alleges that McMillan successfully pressured GFI into suspending Levin, and terminating his employment, without any legitimate cause. According to the Statement, GFI originally suspended Levin on the basis of tardiness and other attendance-related issues. Only later, the Statement alleges, did GFI claim that Levin had been suspended, and was being terminated, because Gooch's initials on the purported addendum to the Employment Agreement were forged, and because Levin was seeking to enforce contractual rights, derived from the purported addendum, which he did not actually have. The Statement asserts claims for breach of contract, conspiracy, tortious interference with contract, and intentional infliction of emotional distress, and seeks compensatory damages and attorneys' fees.
In its answer to Levin's Statement, GFI asserted that GFI was entitled to terminate Levin "for cause," under subparagraph 10 (B) (iii) of the Employment Agreement, because Levin: (1) acted dishonestly, by (a) forging Gooch's initials on the purported addendum, (b) falsely representing that the purported addendum and a second addendum were valid amendments to his Employment Agreement, and (c) falsely representing that the purported addendums guaranteed him, inter alia, the right to select GFI's outside counsel, a bonus of between $100,000 and $200,000 for 2001, and larger bonuses in 2002 and 2003; and (2) refused to follow Gooch's instruction to complete a questionnaire. The answer asserts counterclaims against Levin for breach of fiduciary duty, breach of the duty of loyalty, fraud, breach of contract, misrepresentation and unjust enrichment.
Based on section 11 of the Employment Agreement, GFI sought not only compensatory damages and punitive but also "reimbursement of its actual attorneys' fees and disbursements for any material breach of the Agreement."
On or about August 5, 2002, Levin filed suit against GFInet inc., another GFI affiliate, in the United States District Court for the Southern District of New York, seeking to enforce the terms of a stock option agreement. The complaint in that action alleged that GFI terminated Levin without justification, and despite his excellent job performance, because he was the victim of an internal power struggle. The judge in the federal action transferred the case to a suspense docket, finding that the action could neither be tried, nor otherwise terminated, pending resolution of the NASD Arbitration ( see Levin v GFInet inc., US Dist Ct, SD NY, Apr. 1, 2003, Cedarbaum, J., 02 Civ 6242).
Levin commenced an action in this court on January 19, 2005, alleging, inter alia, that beginning in the spring of 2000 and continuing until the termination of Levin's employment, defendants discriminated against him on the basis of his Jewish religious affiliation. ( Levin v. GFI Securities, Inc., et al; Index No. 100773/05). In its decision and order dated November 18, 2005, this court granted GFI's motion to stay the action and compel the arbitration, and directed that the parties proceed to arbitration. In 2006, Levin commenced another action related to this matter in the District Court for the Southern District of New York ( Levin v. GFInet Inc et al, Civil Action No. 06-1179 (S.D. NY), and that action was also stayed pending the results of the arbitration.
After the Award was issued in this matter, GFI moved to dismiss the action, and Levin did not oppose the motion. By order dated May 16, 2008, this court dismissed the action with prejudice.
Levin and GFI jointly selected a three-person arbitration panel from the NASD roster of arbitrators and conducted extensive pre-hearing discovery. The hearing began on October 3, 2003 and continued for three additional days on October 22, 23 and 28, 2003 in New York. After one of the arbitrators became seriously ill and another moved the hearing was discontinued and started with three new arbitrators selected from the NASD roster.
The 27-day hearing began on September 27, 2007 and ended on August 15, 2007. After testimony was heard, the parties submitted post-trial briefs, in which both sides made requests for attorneys' fees. By directive dated November 7, 2007, the Chairman of the Panel instructed that:
1. Each party by November 26, 2007 should serve on the other party and file with FINRA an application for reimbursement of attorney fees and disbursements. The application must set forth a detailed breakdown of fees and disbursements for which reimbursement is sought. With its application, each party, if it so elects, may make any argument not contained in the briefs it has already filed, that the other party should not be awarded attorney fee and disbursements even if the award is otherwise in favor of the other party.
2. Each party by December 4, 2007, may serve on the other party and file with FINRA a reply to the other party's application and argument referred to in paragraph 1 of this letter but shall not repeat any argument contain[ed] in the briefs already filed.
In compliance with the Chairman's request, both sides submitted applications for attorneys' fees and included a breakdown of the fees and disbursements, and then responded to the other side's request for fees.
GFI's application stated that it incurred $1,540,978.20 in attorneys' fees during the arbitration but that it would seek reimbursement of $1,000,000 in such fees and $121,075.15 in disbursements, which was 67% of the actual disbursements summarized in its submission. In support of the application, GFI provided the hourly rates of the three attorneys who worked on the arbitration and a monthly break-down of the services performed by the attorneys.
Levin's application sought an award of attorneys' fees and disbursements totaling $1,318,908.30 consisting of $1,251,841 in attorneys' fees and $67,067.30 in costs/disbursements.
On February 5, 2008, the arbitrators issued the Award which dismissed Levin's claims and GFI's counterclaims and found that Levin was "liable for and shall pay to [GFI] attorneys' fees in the amount of $373,691.71 pursuant to Section 11 [of the Employment Agreement]."
The Panel assessed forum fees and other fees against Levin and GFI in the amount of $42,925 each.
In denying Levin's claims for relief, the Panel found that Levin was not entitled to the additional $100,000 bonus, and that GFI had cause to terminate Levin's employment based on his refusal to answer the questionnaire. Specifically, the Panel found that Levin's failure to answer the questionnaire constituted cause under section 10(B)(iii) of the Employment Agreement as a "material disregard of any rule applicable to other senior executives," based on the rule in the employee handbook that the employee shall follow the directions of the employee's supervisor.
The Panel also found that Levin's failure to comply with the direction to answer the questionnaire violated his duty under Section 1 of the Employment Agreement, which provides that he "report directly to Michael Gooch" and includes a requirement to follow Gooch's directions and thus constituted cause under Section 10(B)(i) as "an intentional failure to comply with the material terms of this Agreement." In addition, although a termination based on 10(B)(i) requires 30 days notice, the Panel found that notice would have been futile since "Levin refused to comply even though he knew his continued employment was conditioned on his compliance."
The Panel next found that GFI "did not carry its heavy burden of establishing forgery [but that it had] reason to suspect forgery and was entitled to investigate, including directing Mr. Levin to complete the questionnaire." The Panel also found that CPLR 3102(c) did not apply to an internal investigation of the type that GFI was conducting.
In explaining how it determined the amount of attorneys' fees awarded to GFI, the Panel wrote that:
The Panel has found that only one of the three grounds for cause advance by [GFI] constituted, in fact, a material breach of the contract because [GFI] did not carry its burden of proof with respect to the other two. Therefore, Section 11 only provides for recovery of attorneys' fees and disbursements for that one breach. [GFI] has not allocated the time and disbursements among these three elements. However, it would be improper because of this to ignore Section 11 and deny [GFI] recovery of any attorneys' fees and disbursements. Therefore, the Panel will allocate fees and disbursements in equal amounts among the three grounds for cause, and awards one-third of the claimed attorneys' fees and disbursements or a total of $373,691.71.
One member of the Panel dissented as to the amount of attorneys' fees and disbursements awarded to GFI "on the grounds that [the award] is too high to be fair."
As previously stated, in the instant motion, GFI moves to confirm the Award, and Levin cross moves to vacate it. Levin argues that the Award should be vacated since the Panel exceeded their authority when it awarded attorneys' fees to GFI without applying the Lodestar method of calculating attorneys' fees as required under New York law and public policy. In addition, Levin asserts that as Employment Agreement authorized the award of attorneys' fees in connection with a material breach of the agreement and not for time spent litigating other issues, that the award of $373,691.71 in fees and disbursements was excessive given that only a small percentage of the arbitration hearing was spent addressing the issue, and that majority of the arbitration involved issues unrelated to the Employment Agreement for which attorneys' fees were not recoverable. Levin also contends that the Award should be vacated as the Panel refused to hear pertinent and material evidence regarding GFI's fee application when it denied Levin's request to examine GFI's witnesses regarding the application, and that the Chairman of the Panel did not "request or permit the [p]arties to address the method of calculation of the opposition's fees" (Levin Mem. at 18).
Levin further argues that the Award should be vacated as the Panel exceeded its authority when it found that GFI could require Levin to answer the questionnaire without a court order in violation of CPLR 3102(c), applicable to pretrial discovery, and contrary to the time periods provided under NASD Rule 10321(b)(1) for responding to requests for information. In addition, Levin asserts the Award violated his due process rights since the Panel found that he did not have a right to "reasonable notice" of any deficiency in his job performance and that "a thirty-day cure period was not necessary and futile' during GFI's investigation into Levin." (Levin's memorandum of support at 2-3). Moreover, Levin contends that when he was suspended, he was not aware that he was being accused of forgery and fraud in connection with the July 15, 1999 addendum.
NASD Rule 10321(b)(1) provides that "[a]ny party may serve a written request for information or documents ("information request") upon another party 45 calendar days or more after service of the Statement of Claim by the Director of Arbitration or upon filing an Answer, whichever is earlier."
GFI counters that Levin has failed to demonstrate that any of the stringent legal standards for vacating the Award have been meet. With respect to the Panel's award to it of $373,691.71 in attorneys' fees and disbursements, GFI argues that the Panel acted within its authority and the Award did not violate public policy since there was an agreement providing for the award of attorneys' fees and the NASD rules do not restrict the award of attorneys' fees. Moreover, GFI argues that the amount of the Award was rational since the Panel explained how it calculated the fee award by reducing the amount requested by GFI by two-thirds, that the Panel utilized a lodestar calculation prior to reducing the Award and was not required to apportion the attorneys' fees award based on the time allegedly spent on a particular issue. In addition, GFI asserts that Levin never requested a hearing concerning its fee application and, in any event, even if he had requested such a hearing and the Panel denied the request, such denial would not provide a basis for vacating the Award.
GFI also asserts that given that the questionnaire was used for an internal investigation, the Panel did not exceed its authority in finding that GFI did not need judicial approval before directing him to answer the questionnaire. In addition, GFI contends that any failure to provide Levin with thirty days notice prior to his termination does not provide a ground for vacating the Award as under Section 10(B)(i) of the Employment Agreement, Levin could be terminated without notice and in any event, the Panel was within its authority in finding that notice would have been futile.
Discussion
Under CPLR 7511, an arbitration award may be vacated on the following three grounds: (1) it violates a strong public policy; (2) it is irrational; or (3) it clearly exceeds a specifically enumerated limitation on the arbitrator's power. Matter of New York State Correctional Officers Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 ([1999); Hackett v Millbank, Tweed, Hadley McCloy, 86 NY2d 146 (1995).
While the FAA generally applies to disputes concerning employment in the securities industry, ( See Salvano v Merrill Lynch, Pierce, Fenner Smith, Inc., 85 NY2d 173, 180 (1995)), based on the choice of law clause in the Employment Agreement stating that the agreement, including its enforcement, is governed by New York law, the standard in Article 75 of the CPLR is applicable here. See generally, Smith Barney, Harris Upham Co. Inc. v Luckie, 85 NY2d 193 (1995). In addition, for the purposes of this motion and cross motion any differences between the standard for vacating an arbitration award under Article 75 and the FAA are immaterial as Levin has not demonstrated a basis for vacating an arbitration award under either standard. Notably, Levin does not rely on the manifest disregard standard which has been interpreted as a basis for vacating an Award under the FAA ( Morgan Stanley DW Inc. v Afridi , 13 AD3d 248 [1st Dept 2004]), and in any event nothing in the record indicates that Panel manifestly disregarded the law. See Morgan Stanley DW, Inc. v. Afridi, 13 AD3d at 250 (holding that the manifest disregard standard applies when it is shown that "the arbitrator knew of the relevant principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.") (internal citations omitted).
"[J]udicial review of arbitration awards is extremely limited." Wein Malkin LLP v. Helmsley-Spear, Inc. , 6 NY3d 471 , 479, cert dismissed, 548 US 940 (2006) (citation omitted). As explained by the First Department:
"Judicial authority to vacate an arbitration award is limited. Unless the arbitration agreement provides otherwise, an arbitrator is not bound by principles of substantive law or by rules of evidence but "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be" and his award will not be vacated "unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power" ( Matter of Silverman [Benmor Coats], 61 NY2d 299, 308). A court is bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies, and "cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one" ( Matter of New York State Correctional Officers Police Benevolent Assn. v State of New York, 94 NY2d 321, 326). Even where an arbitrator makes errors of law or fact, a court may not undertake to conform the award "to [its] sense of justice" (id.). An arbitrator's award will be confirmed "if any plausible basis exists for the award" ( Graniteville Co. v First Natl. Trading Co., 179 AD2d 467, 469, lv denied 79 NY2d 759, citing Matter of Silverman, supra)."
( Azrielant v Azrielant, 301 AD2d 269, 275 (1st Dept 2002), lv. denied, 99 NY2d 509 (2003).
Under this standard, there is no basis for vacating the Award. First, the Panel did not act irrationally in determining that no judicial approval was required under CPLR 3102(c) before Levin was directed to answer the questionnaire. CPLR 3102(c) provides that "[b]efore any action is commenced, disclosure to aid in bring an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." The Panel found that CPLR 3102(c) did not apply as the questionnaire was being used by GFI in connection with an internal investigation, and not in connection with an action or arbitration. Notably, Levin points to no case law suggesting that an court order is required prior to a company seeking information in connection with an internal investigation.
Moreover, the record appears to support GFI's position that it intended to use the information for an internal investigation and not for an action or an arbitration since GFI offered to mediate the dispute and the four court actions and the arbitration proceeding arising out of the dispute were all commenced by Levin. In any event, it cannot be said that the Panel's determination was irrational. Next, since at the time that Levin was directed to answer the questionnaire, no arbitration proceeding before the NASD, its rules regarding the exchange of information are irrelevant.
Nor can it be said that the arbitrators exceeded their authority in determining that CPLR 3102(c) was not a prerequisite to answering the questionnaire, since the determination was within the broad powers delegated to them in the arbitration provision. See Integrated Sales Inc. v. Maxwell Corporation of America, 94 AD2d 221, 225 (1st Dept 1983) (holding that "an arbitrator exceeds his powers only when he ignores specific limitations on the powers delegated to him in the arbitration clause or gives a completely irrational construction to the parties' agreement, thereby effectively rewriting it.").
Furthermore, Levin's position that he did not have reasonable notice that he would be terminated or the basis for the termination and that thirty days notice was required under the Employment Agreement does not provide a ground for vacating the Award since the Panel could have rationally found that it was futile for GFI to wait thirty-days after Levin informed GFI he would not answer the questionnaire unless it complied with various conditions. In addition, the Panel found that by refusing to answer the questionnaire, Levin breached Section 10(B)(iii) of the Employment Agreement by his "material disregard" of the rule in the employee handbook requiring senior executives, like Levin, to obey their supervisors, and no notice was required before terminating an employee for breaching this section of the agreement. Moreover, it cannot be said that based on the questions in the questionnaire relating to Levin's alleged fraud and forgery with respect to the July 15, 1999 addendum, that Levin was not on notice of these potential grounds for his termination. Accordingly, there existed a rational basis for this aspect of the Panel's determination.
Next, the Panel's award to GFI of $373,691.71 in attorneys' fees and disbursements was not outside the scope of its authority, against public policy or irrational. As a preliminary matter, the Panel was empowered to award attorneys' fee based on section 11 of the Employment Agreement which provides for their award for any material breach of the agreement. See Ras Securities Corp. v. Williams, 251 AD2d 98 (1st Dept 1998) (holding that arbitrators were empowered to award attorneys' fees by contractual provision, "regardless of whether there was a cognizable basis for such an award in a judicial forum").
To the extent that Levin challenges the method used to calculate the fee award, the court notes that under New York law, "an arbitrator's award cannot be vacated if there exists any plausible basis for it." Brown Williamson Tobacco Corp. v. Chesley , 7 AD3d 368 , 372 (1st Dept 2004) (reversing trial court and reinstating a $1.3 billion fee award to attorneys involved in settling tobacco litigation); See New York Merchants Protective Co., Inc. v. Salloom Import Export Co., 18 Misc 3d 129A (App Term, 2d and 11th Jud. Dist. 2007) (confirming arbitration award including award of attorneys fees in the amount of $1,500 noting that "once a case is referred to an arbitrator, all questions of law and fact are within the judicially unreviewable purview of the arbitrator").
Levin's argument that the Award should be vacated based on the holding in Porzig v. Dresdner, Kleinwort, Benson, North America LLC, 497 F3d 133 (2d Cir 2007) is unavailing. In Porzig, the Court of Appeals for the Second Circuit vacated a modified award issued after remand based on the Panel's failure to award the claimant reasonable attorneys' fees in accordance with the Age Discrimination in Employment Act. In reaching this conclusion, the court wrote that the lack of "any transparent fee analysis by the Panel handicaps our ability to review the reasonableness of the Modified Award." 497 F3d at 143. However, the court specifically noted that "in general arbitration panels are not required to explain their awards" and limited its holding to the circumstances where, like the case before it, the Panel's previous award had been vacated "after a federal court had taken the rare step of concluding correctly, that the Panel had acted in manifest disregard of the law" and, on remand, the Panel issued a part of the award "without any authority." Id., at 143, n. 7. As the circumstances underlying the decision in Porzig are not present here, its holding is inapplicable.
In this case, the record indicates that in its written application, GFI requested attorneys' fees based on the lodestar method, that is the number of hours expended by its counsel multiplied by the reasonable hourly rate, and that the Panel reduced the award to one-third the amount sought by GFI based on its finding that GFI succeeded in proving one of the three grounds for terminating Levin for cause based on a material breach of the Employment Agreement. Thus, Levin's argument that the method used by the arbitrators to calculate the award violated New York's public policy since the lodestar method was not used is without merit. Grant v. Martinez, 973 F2d 96, 99 (2d Cir 1992) (holding that following the application of the lodestar method, a fee may be adjusted upward or downward based on a determination regarding a party's success)
Moreover, it has been held that when applying the lodestar method in connection with a matter in which the underlying facts and legal theories are interrelated, a fee award need not be apportioned "mechanically on the basis of [a petitioner's] success or failure on a particular issue.'" Deep v. Clinton Central School District, 48 AD3d 1125 (4th Dept 2008), quoting, Hensley v. Eckerhart, 461 US 424, 437 (1983). Thus, the Panel plausibly based its fee award on its finding that many of the facts and legal theories underlying Levin's claims which GFI successfully defended against were interrelated with the issue of whether Levin materially breached the Employment Agreement. See Yalowitz v. Prudential Equity Group LLC , 25 AD3d 354 (1st Dept), lv denied, 6 NY3d 710 (2006) (rejecting petitioner's argument that award of attorneys' fees was beyond the arbitrators authority when the underlying contract which allowed the payment of attorneys' fees associated with collection and petitioners' counterclaims were inextricably interwoven with their affirmative defenses and were all part of the costs associated with collection under the notes) Thus, contrary to Levin's contention, the Panel was not required to base the fee award on the percentage of the arbitration hearing that was addressed to GFI's successful claim that Levin materially breached the Employment Agreement.
Finally, there is no support in the record for Levin's assertion that he requested a hearing as to the amount of attorneys' fees, and even if such a request was made and denied it would not provide a basis for vacating the Award, particularly as the Chairman of the Panel advised the parties that they were entitled to "reply to the other party's application and argument," and the record indicates that the parties each provided such a reply. See Wise v. Marriot Intern., Inc., 2007 WL 2780395 (S.D. NY 2007) (lack of an oral hearing does not violate "minimal requirements of fairness" or due process when the arbitrators base their decision on written submissions).
Accordingly, the petition to confirm the Award is granted, and the cross-petition to vacate the Award is denied.
Settle order and judgment on notice.