person qualified to serve as an arbitrator. Moreover, the term 'disregard' implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it." 808 F.2d at 933.
These cautionary principles enhance and supplement those previously quoted. The Court of Appeals' conception of "disregard," a separate element (hence the word "moreover"), resonates with pejorative overtones, evoking the image of arbitrators thumbing their noses at a legal principle with which they are fully familiar.
I think that the application of these standards is fatal to plaintiff's case. I am not persuaded that the entitlement of an ADEA claimant to attorney's fees, which the statutory scheme provides by applying the FLSA to the ADEA, is "capable of being readily and instantly perceived" by the average NASD securities industry arbitrator. And the arbitrators at bar received no help from plaintiff's counsel, whose submissions on attorney's fees dealt only with the NJLAD. Plaintiff's counsel never argued to the arbitrators that an award of attorney's fees under the ADEA was mandatory. Compare Carte Blanche, 888 F.2d at 268 (claim that arbitrators disregarded governing law rejected where the authority relied upon "was apparently not cited to them in connection with [their] ruling.").
While plaintiff also based his claim for attorney's fees on the NJLAD, which counsel did discuss in his submissions, the manifest disregard claim fares no better. The NJLAD provides only that in such cases "the prevailing party may be awarded a reasonable attorney's fee as part of the costs," N.J. Stat. Ann. § 10:5-27 (emphasis added), which makes it less clear that the award was mandated in the case at bar. On this aspect of the case, it more closely resembles Emrick, supra. Plaintiff argues in his briefs to this Court that under the New Jersey cases the award of attorney's fees is mandatory; but he never addressed that argument to the arbitrators, instead relying upon the New Jersey cases only to quantify the requested award.
I do think that the securities industry, having persuaded the Supreme Court in Gilmer to require arbitration of employees' ADEA claims, should be required to supply arbitrators who know what the ADEA says about attorney's fees. Whether, on the ADEA aspect of the case, the arbitrators committed a manifest disregard of law is a close question. However, applying the criteria which I conceive to be controlling in this circuit, I reject plaintiff's claim.
Plaintiff's second contention, that the award must be vacated or modified because the arbitrators did not properly calculate his damages, does not require extended discussion.
The FAA permits the District Court to modify or correct an award "where there was an evident material miscalculation of the figures . . . ." 9 U.S.C. § 11(a). That is not presented by the instant case, where the arbitrators did no more (and no less) than to disagree with plaintiff's damages calculations. Plaintiff calculated his discrimination damages claims, for back pay and front pay, in the millions.
Defendants, while denying any discrimination, calculated plaintiff's compensatory damages in the hundreds of thousands. The arbitrators clearly accepted defendants' contentions.
The arbitrators did not explain their damages calculations, but they did not need to. An arbitration panel "may render a lump sum award without disclosing their rationale for it, and . . . courts will not inquire into the basis of the award unless they believe that the arbitrators rendered it in 'manifest disregard' of the law or unless the facts of the case fail to support it." Koch Oil, S.S. v. Transocean Gulf Oil Co., 751 F.2d 551, 554 (2d Cir. 1985). There is no substance to plaintiff's claim that defendants conceded at the hearings a damages amount greater than the arbitrators awarded. Defendants presented to the arbitrators two damages calculations of maximum back pay and front pay, using 1991 as the base year for one calculation and 1992 for the other. It is reasonable to infer from the award that the arbitrators accepted defendants' calculation of back pay and scaled back the calculation of maximum front pay. In discrimination cases, front pay is typically awarded in lieu of reinstatement where reinstatement is not feasible in the circumstances. See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984). The arbitrators' award in the case at bar lay within their powers.
I have considered the other contentions made by plaintiff and find them to be without merit.
Plaintiff's motion to vacate or modify the award of the arbitrators is denied. Defendants' cross-motion to confirm the award is granted.
The file will remain under seal in accordance with the Court's prior orders, except that the Court's orders and opinions dated July 7, 1995, October 20, 1995, and this opinion will be placed in the public file. As to the documents generated by the arbitration and litigation, and the information they reference, I agree with defendants that it is not feasible to attempt a partial unsealing within the context of the parties' confidentiality agreement.
It is SO ORDERED.
Dated: New York, New York
July 24, 1996
CHARLES S. HAIGHT, JR.
UNITED STATES SENIOR DISTRICT JUDGE