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ACCIARDO v. MILLENNIUM SECURITIES CORP.

February 15, 2000

IN THE MATTER OF THE ARBITRATION BETWEEN RAYMOND J. ACCIARDO, SR., PETITIONER-RESPONDENT,
V.
MILLENNIUM SECURITIES CORP., TODD ROME, RICHARD A. SITOMER, AND PAMELA L. ROCKLEY, RESPONDENTS-CROSS-PETITIONERS.



The opinion of the court was delivered by: Batts, District Judge.

MEMORANDUM & ORDER

Petitioner-Respondent brought this action to confirm an arbitration award granted by the National Association of Securities Dealers, Inc. (the "NASD") pursuant to the Federal Arbitration Act, 9 U.S.C. § § 9 and 13. The arbitrators awarded compensatory and punitive damages as well as injunctive relief to Petitioner-Respondent Raymond J. Acciardo. Respondents-Cross-Petitioners Millennium, Todd Rome, Richard A. Sitomer, and Pamela L. Rockley seek to vacate this award on the grounds that the arbitrators acted in manifest disregard of the law.

For the reasons set forth below, the Court GRANTS the Petition for Confirmation of Arbitration Award. Respondent-Cross-Petitioners' Cross-Petition to Vacate is DENIED.

I. BACKGROUND

Millennium Securities Corporation ("Millennium") is a registered broker-dealer with its principal place of business in New York, New York. On April 26, 1996 Respondent Cross-Petitioners Todd Rome ("Rome") and Richard A. Sitomer ("Sitomer"), Millennium's senior management, hired Raymond J. Acciardo ("Acciardo") to serve as Director of Compliance at a yearly salary of $50,000. (Am. Cross-Petition to Vacate, Ex. J at 1). Before the Arbitration Panel, Acciardo alleged that Rome and Sitomer induced Aeciardo to leave his prior position by falsely representing that Millennium had no regulatory problems or customer complaints. (Petition to Confirm, Ex. A at 2). Acciardo further alleged that when he refused to "look the other way" or participate in regulatory frauds proposed by his employers, Pamela L. Rockley ("Rockley") was hired to replace him. (Petition to Confirm, Ex. A at 2).

Acciardo claimed that Rockley, Rome, and Sitomer conspired together to force him out of the firm and punish him by marking his Uniform Termination Statement ("Form U-5") with false and derogatory information, thereby preventing him from finding future employment.*fn1 (Petition to Confirm, Ex. A at 2). The allegedly defamatory disclosures were that Acciardo was terminated for "failure to perform duties pursuant to NASD 3010,"*fn2 he was under "internal investigation" because he "removed his personnel files from [the] office," and he was the subject of an arbitration by a dissatisfied customer. (Id. Ex. A at 2 (quoting Acciardo's Form U-5); Zamansky Aff., Ex. A at 1-3). Acciardo testified that as a result of the allegedly false and defamatory statements, he has not been able to find work in the securities industry. (Petition to Confirm, Ex. A at 2). Further, Acciardo claimed that his reputation and career as an attorney and securities compliance officer have been "severely, if not permanently, damaged." (Id.).

The Panel heard testimony from five former Millennium employees.*fn3 Each testified that they had observed regulatory violations at the firm.*fn4 (Pet.'s Mem. Law at 12-14). Three former employees testified that when they left the firm their U-5 Forms were marked with false and derogatory statements. (Id.). One former employee testified that she was threatened by Rome and Sitomer that if she made negative comments about the firm, they would issue a false and damaging Form U-5 against her. (Id. at 12).

Respondents-Cross-Petitioners ("Respondents") denied all of the above allegations and testified before the Arbitration Panel that they did not fraudulently induce Acciardo to join the firm, nor did they violate any rules, laws or regulations. (Petition to Confirm, Ex. A at 3). Respondents asserted that Acciardo lacked knowledge of the rules and regulations necessary to perform his job adequately and had taken documents from the office without consent. (id.). Respondents maintained that Acciardo's Form U-5 was factually accurate and was not filed with malicious intent. (id.).

Acciardo arbitrated claims for libel and defamation, tortious interference with his employment contract, and wrongful discharge, among others. (Petition to Confirm, Ex. A at 2). NASD arbitrators heard five days of testimony. (Id.). On April 7, 1999, the Arbitration Panel rendered its decision and awarded $40,535 to Acciardo in compensatory damages plus pre- and post-judgment interest. Making a specific finding of malice, the Panel awarded Acciardo an additional $100,000 in punitive damages. The arbitrators also ordered Millennium to expunge the U-5 Form so that the "Reason for Termination" reads only "Failure to Perform Duties" and question 14 (indicating whether the employee was under investigation for employee fraud, wrongful taking of property, or violation of investment-related regulations) reads "no". (Id. at 4).

Acciardo then filed a petition in this Court to confirm and enter judgment on the arbitration award. On June 2, 1999 Millennium and the individual Respondents filed the instant Cross-Petition to Vacate the award of the arbitrators pursuant to 9 U.S.C. § 10, alleging the arbitrators, inter alia, manifestly disregarded the law.

By Order dated November 10, 1999, this Court remanded the matter to the Arbitration Panel for clarification of its award. Specifically, this Court sought further explanation of the blanket $40,535 compensatory damage award on the grounds that some understanding of the purpose of the compensatory award was necessary to evaluate the propriety of the Panel's punitive damage award. See Remand Order (citing Action House, Inc. v. Koolik, 54 F.3d 1009 (2d Cir. 1995)). See also ConnTech Dev. Co. v. University of Conn. Educ. Prop., 102 F.3d 677 (2d Cir. 1996) (approving remand of lump sum arbitration awards for clarification where the award appears to be the result of precise mathematical calculations).

The Arbitration Panel, by letter dated December 23, 1999, elaborated on its $40,535 compensatory damages award as follows:

1. Compensatory damages for bread of contract, consisting of six months pay: $32,500;
2. Compensatory damages for breach of contract, two weeks severance plus funds for medical benefits, lost vacation and pension contributions; $3,035;
3. Compensatory damages for the tort of defamation: $5,000

See Taube Ltr dated December 23, 1999.

By letter brief dated January 3, 2000, Respondents filed supplemental arguments in support of their Motion to Vacate based on the newly clarified award. ...


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