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ALTER v. ENGLANDER

October 23, 1995

L. WILLIAM ALTER, JR., Plaintiff, against ISRAEL A. ENGLANDER; THE ENGLANDER CAPITAL CORP.; AEGIS PARTNERS SPECIALIST JOINT ACCOUNT; MARTIN WEINBURG; and DENNIS POSTER, Defendants.


The opinion of the court was delivered by: STEIN

 SIDNEY H. STEIN, District Judge:

 Plaintiff L. William Alter brings this diversity action for breach of contract. Defendants have moved for an order pursuant to 9 U.S.C. §§ 3 and 4 staying the proceedings and compelling arbitration. For the reasons that follow, defendants' motion is granted insofar as arbitration is compelled and the action is dismissed without prejudice.

 Background

 In September 1988, a partnership known as Aegis Partners Specialist Joint Account ("Aegis") was formed, consisting of four corporations, including L. William Alter & Co., Inc., of which plaintiff Alter was the sole shareholder, and defendant Englander Capital Corp., of which defendant Israel A. Englander was the sole shareholder. Aegis was and is a registered specialist for certain stocks traded exclusively on the American Stock Exchange ("Amex"). Each corporation-partner was a member of Amex at all relevant times, as was each principal owner of the corporation-partners. The partnership agreement provided that all disputes would be settled by arbitration, per the rules of Amex.

 After disputes arose in 1990, Alter's corporation withdrew from the partnership in June of that year. The question of the allocation of securities in which Aegis specialized was submitted to an Amex Committee for arbitration, in accordance with the rules of Amex. The Committee rendered a decision on June 27, 1990 instructing Alter and Englander to allocate 12.5% of the securities to Alter. On July 10, 1990, after the parties could not decide which securities to allocate, the Committee made the allocation itself. On August 10, 1990, after an initial modification of the decision, the parties agreed with the Committee to a final modification of the decision (as modified, the "1990 agreement" or the "agreement").

 The 1990 agreement provides, in part, that Alter would receive 50% of the annual gross commissions and 25% of the annual gross trading profits for a fifteen year period for trading in four designated securities, provided that they remained Amex-listed securities. The agreement also provided that Alter and Englander would use their best efforts to maintain the designated securities' status as Amex-listed securities.

 By August 1993, three of the four designated securities had ceased trading on Amex. Alter claims that Englander did not use his best efforts to maintain the designated securities as Amex-listed securities. He also claims that his payments under the 1990 agreement have not been calculated properly. His complaint alleges breach of contract and he asks for a reformation of the 1990 agreement and an accounting, as well as damages.

 Defendants now move for an order staying the proceedings in this Court and compelling arbitration, pursuant to 9 U.S.C. §§ 3 and 4.

 Discussion

 Defendants point to two arbitration provisions in support of their motion, one in the original Aegis partnership agreement and one in the Amex Constitution. Plaintiff gives two reasons why these provisions do not apply. First, he argues that the Court should exercise its equitable powers and decline to send the dispute to arbitration by Amex because Amex has already demonstrated its partiality in favor of the defendants. Second, Alter argues that neither arbitration provision applies. The arbitration clause from the original partnership agreement cannot be considered, Alter asserts, because he is no longer a party to that agreement and because the dispute did not arise from that agreement. The Amex arbitration provision does not apply, he argues, because there is currently no business between him and the defendants. Since the dispute arises only from the 1990 agreement, which has no arbitration clause, and since arbitration can only be compelled when the parties have consented to it, he reasons, it cannot be compelled here.

 Partiality of the Arbitrators

 Alter's first argument can be disposed of rather quickly. Challenges based on the alleged partiality of arbitrators cannot be made before an award issues. See Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 n.4 (2d Cir. 1980) ("It is well established that a district court cannot entertain an attack upon the qualifications or partiality of arbitrators until after the conclusion of the arbitration and the rendition of an award."); Marc Rich & Co. v. Transmarine Seaways Corp. of Monrovia, 443 F. Supp. 386, 387-88 (S.D.N.Y. 1978); Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F. Supp. 549, 551 (S.D.N.Y. 1968).

 Even assuming that this Court would entertain such a challenge, pursuant to the standards applicable under 9 U.S.C. § 10(a)(2), the bias must be "'direct and definite; mere speculation is not enough'" to avoid arbitration. Pompano-Windy City Partners, Ltd. v. Bear, Stearns & Co., Inc., 698 F. Supp. 504, 516 (S.D.N.Y. 1988) (quoting Sofia Shipping Co. v. Amoco Transport Co., 628 F. Supp. 116, 119 (S.D.N.Y. 1986)). Additionally, there must be "'a showing of something more than the mere ...


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