An arbitrator's award is in "manifest disregard of the law" in those cases "where a governing legal principle is well defined, explicit, and clearly applicable to the case, and where the arbitrator ignored it after it was brought to the arbitrator's attention in a way that assures that the arbitrator knew its controlling nature."' GMS Group. LLC v. Benderson, 326 F.3d 75, 78 (2d Cir. 2003) (quoting Goldman v. Architectural Iron Co., 306 F.3d 1214, 1216 (2d Cir. 2002)). "A legal principle clearly governs the resolution of an issue before the arbitrator if its applicability is "obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.'" Westerbeke Corporation v. Daihatsu Motor Co., 304 F.3d 200, 209 (2d Cir. 2002) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933 (2d Cir. 1986)).
The petitioner has the burden of demonstrating "the existence of a clearly governing legal principle [and] the arbitrator's manifest disregard of such a principle." Id. In line with the general policy in favor of arbitration, "if a ground for the arbitrator's decision can be inferred from the facts of the case, the award should be confirmed." GMS Group, 326 F.3d at 78 (quotation omitted); Westerbeke, 304 F.3d at 212 n. 8 (courts are "obliged to give the arbitral judgment the most liberal reading possible.... [W]e will confirm the award if we are able to discern any colorable justification for the arbitrator's judgment, even if that reasoning would be based on an error of fact or law." Id. at 212 n. 8.
B. The Governing Legal Principle
Atherton contends that Bigda v. Fischbach Corp., 898 F. Supp. 1004 (S.D.N.Y. 1995), aff'd, 101 F.3d 108 (2d Cir. 1996) (unpublished disposition), sets forth the governing legal principle that the Panel manifestly disregarded in determining his breach of contract claim. In Bigda, the district court determined that because an employee elected to continue his employment rather than terminate an employment agreement, he had waived his right to seek liquidated damages. Bigda, 898 F. Supp. at 1014. However, the court noted, in dicta and without case law authority, that because the employment agreement contained a non-waiver clause*fn2 the plaintiff never lost his right to seek damages pursuant to a breach of contract claim. See id; see also Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001) ("A district court opinion affirmed by an unpublished table decision does not determine whether a right was clearly established.").
Cenus contends that Bigda is factually distinguishable from this action in a material respect and therefore the asserted governing legal principal is not ""well defined, explicit and clearly applicable."' Westerbeke, 304 F.3d at 216 (quotation omitted). Specifically, Cenus contends that the Agreement contains a notice provision — providing that Atherton's termination could not be considered "Termination With Good Reason" unless Atherton notified Cenus of the breach of contract within fifteen days — that the employment agreement in Bigda did not contain.
Cenus is correct. The notice provision in the Agreement makes the case at bar factually distinguishable from Bigda in a material respect. Several New York courts have determined that failure to provide notice pursuant to a contractual provision effectively abrogated that contract's non-waiver provision. See Gimbel Holding Co. v. Hirschman 1997 WL 724562, *4 (S.D.N.Y. Nov. 19, 1997); Winfield Capital Corp. v. Mahopac Auto Glass. Inc., 208 A.D.2d 715, 617 N.Y.S.2d 499 (2d Dep't 1994); Trojano v. 55 Ehrbar Tenants Corp., 168 Misc.2d 906, 645 N.Y.S.2d 975 (S.Ct. Nassau Co. 1996) (despite non-waiver provision in lease, landlord waived his right to terminate lease and claim default by accepting monthly payments and by failing to serve notice as required by the lease).
For example, in Winfleld, the court held that a non-waiver clause did not bar waiver of the landlord's breach of contract claim where the landlord failed to provide notice as required by the terms of the lease. Similarly, here the Panel was entitled to determine that Atherton waived the non-waiver clause of the Agreement by (1) continuing to work after Cenus twice reduced his base salary and (2) failing to provide timely notice pursuant to the terms of the "Termination of Employment" provision of the Agreement. (See Agreement § 5). As the Panel wrote, "Claimant, an executive, knowingly continued to work for Respondent after the salary changes were announced and implemented. Claimant was free under the statutes to terminate his employment for that reason, but did not timely assert his contractual Good Reason for the termination." (See Award of Arbitrator, Findings and Conclusions at ¶ 25).
Accordingly, Atherton's reading of Bigda does not constitute the "governing legal principle" for the arbitration here.*fn3 Westerbeke, 304 F.3d at 216. There is a colorable justification for the Panel's decision to not award damages due to breach of contract — therefore, the Panel's decision has met the baseline for delineating what will withstand "manifest disregard review based on the standard of the law." See Westerbeke, 304 F.3d at 212 n. 8; GMS Group, 326 F.3d at 78; Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 13 (2d Cir 1997). This Court notes that "whether appellees actually raised the issues reflected in the district court's reading of the award is immaterial. In construing an arbitral award we look only to plausible readings of the award, not to probable readings of it." Duferco, 333 F.3d at 392. Atherton's motion to modify, or in the alternative, partially vacate the Panel's award should be denied.
For the reasons set forth above, Atherton has failed to prove that the arbitrators manifestly disregarded the law. Therefore, Atherton's petition to modify or vacate the arbitration award is denied and Cenus's motion to confirm that award is granted.