Bear Stearns & Co. v. Fulco

21 Misc. 3d 823
CourtNew York Supreme Court
DecidedSeptember 23, 2008
StatusPublished
Cited by2 cases

This text of 21 Misc. 3d 823 (Bear Stearns & Co. v. Fulco) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bear Stearns & Co. v. Fulco, 21 Misc. 3d 823 (N.Y. Super. Ct. 2008).

Opinion

OPINION OF THE COURT

Joan A. Madden, J.

Petitioner Bear Stearns & Co. moves pursuant to section 10 of the Federal Arbitration Act (FAA) (9 USC § 10) and CPLR 7511 to vacate an arbitration award of the Financial Industry Regulatory Authority (FINRA), formerly the National Association of Securities Dealers (NASD),1 or, in the alternative, to modify the award to the extent it grants respondent $250,000 in attorneys’ fees. Respondent Christopher A. Fulco opposes the motion and cross-moves to confirm the award.

Background

Fulco is a former employee of Bear Stearns, a broker-dealer and a member of the New York Stock Exchange (NYSE) and the NASD. On November 9, 1992, Fulco signed an arbitration agreement that provides, in relevant part, that:

“In consideration of employment with Bear Stearns, all employees hereby agree [ ] to submit to final and binding arbitration of any and all claims, controversies of any nature whatsoever and disputes arising out of or related in any way to their employment at Bear Stearns, including by way of employment, cessation of employment.... Said arbitration shall be conducted only by a panel of the New York Stock Exchange, Inc., American Stock Exchange, or th[e] National Association of Securities Dealers, Inc., as Bear Stearns[ ] in its sole discretion shall elect. . ..”

The underlying arbitration arises out of Bear Stearns’ allegedly wrongful termination of Fulco from his position as a relationship manager in Bear Stearns’ Global Clearing Services Department where he earned approximately $100,000 per year. [825]*825In late 2003, various regulatory authorities began investigating Bear Stearns’ involvement with certain clients who were allegedly market-timing mutual funds and making trades after market hours. In February 2004, Fulco was fired for his asserted failure to follow “[f]irm policy” related to mutual fund trading.

On November 1, 2005, Fulco commenced an arbitration proceeding before the NASD, by filing a statement of claim and a uniform submission agreement, under which he agreed to conduct the arbitration in accordance with the rules of the NASD. The statement of claim alleged that Bear Stearns terminated Fulco’s employment for illegitimate reasons, and that there was no “[flirm policy” regarding mutual fund trading, that all trading was approved by senior management, that Bear Stearns marked up Fulco’s NYSE Form RE-3 (hereinafter Form RE-3) with false and defamatory statements and that, as a result, since his termination he was unable to secure a job on Wall Street. The statement of claim alleged that Bear Stearns’ improper conduct constituted defamation, tortious interference with business relationships, breach of contract, and breach of securities rules and regulations, and sought compensatory and punitive damages and costs and attorneys’ fees, as well as an order that Bear Stearns file an amended Form RE-3, and that the Form RE-3 be expunged from the records of the NYSE.

On February 17, 2006, Bear Sterns filed a uniform submissions agreement, agreeing to arbitrate in accordance with the rules of the NASD, and an answer in which it asserted that it fired Fulco based on his violation of the firm’s policy that broker-dealer clearing clients comply and that Bear Stearns cooperate with requests by mutual funds to discontinue market-timing trading, and that Fulco misled lawyers retained by Bear Stearns who were investigating market-timing trading allegations. Bear Stearns’ answer sought dismissal of Fulco’s claims and requested costs incurred in defending against that statement of claim, including attorneys’ fees.

The NASD appointed three neutral arbitrators to hear and decide the dispute. The arbitration included 6 prehearing sessions and 7 days of 13 sessions of arbitration hearings over a four-month period between April and July 2007. During his opening statement Fulco’s counsel specifically requested attorneys’ fees. In his opening statement, Bear Stearns’ counsel did not withdraw its request for attorneys’ fees and told the panel the case was so flawed that it never should have been [826]*826brought.2 Bear Stearns filed a motion to dismiss dated April 5, 2007, in which Bear Stearns did not mention its request for attorneys’ fees or withdraw such request. Fulco filed his response to the motion on July 13, 2007 and again requested attorneys’ fees. By e-mail dated July 20, 2007, counsel to Fulco informed counsel to Bear Stearns that he was “preparing an attorney affirmation in support of our application for attorneys’ fees and costs which I will be handing to the Panel during closing arguments. I will simply recite the costs and attorneys’ fees incurred by Fulco.” (Respondent’s answer to petition, exhibit H.)

At the July 23, 2007 hearing, Fulco reserved his entire closing argument for rebuttal and thus, Bear Stearns presented its argument first. During closing argument, the only reference to attorneys’ fees made by Bear Stearns’ counsel was as follows:

“I know that [Fulco’s attorney] is going to hand up a claim for attorneys’ fees. He’s going to hand up his cost to the retainer agreement or an affidavit which is fine. Under the law, this Panel can only award attorneys’ fees if the underlying claim gives a right to attorneys’ fees, and it’s the Claimant’s responsibility and burden to prove it. But once again, none of these statutes and none of the common law claims even allow attorneys’ fees. Again they ask you to ignore the law, and that would leave employers with no guidance whatsoever. So on legal grounds alone, all of these claims have to be dismissed.”

In rebuttal, Fulco’s attorney asserted that Fulco was entitled to attorneys’ fees as New York law provides that if the parties include a demand for attorneys’ fees in their submissions to the arbitrators, the parties place the issue of attorneys’ fees before the arbitrators and the arbitrators have authority to award such fees. In support of its position, Fulco handed the panel a copy of Silvester Tafuro Design, Inc. v Sachs (1996 WL 257668, 1996 US Dist LEXIS 6618 [SD NY 1996]), and pointed out that Fulco requested attorneys’ fees in its statement of claim and Bear Stearns requested attorneys’ fees in its answer. In addition, during closing argument, James McCaffrey, the securities industry member of the panel, referenced the case of PaineWeb[827]*827ber Inc. v Bybyk (81 F3d 1193, 1202 [2d Cir 1996]), as giving the panel authority to award attorneys’ fees.

Fulco also provided the panel with a summary of the total monetary damages he was requesting and an affirmation by Ross B. Intelisano, Esq., in support of Fulco’s application for attorneys’ fees and costs. The Intelisano affirmation indicates that Fulco had paid Rich & Intelisano, LLP $27,500 in legal fees to date, was responsible for an additional 20% of the first $150,000 awarded, plus 331/3% of all sums over $150,000, and that Fulco had incurred $14,271.51 in out-of-pocket expenses and prior legal fees to another law firm in connection with his claims against Bear Stearns.

After Fulco’s rebuttal, Bear Stearns’ counsel informed the panel that Bear Stearns was withdrawing its request for attorneys’ fees, and handed two cases to the panel, Matter of Matza v Oshman, Helfenstein & Matza (33 AD3d 493 [1st Dept 2006]) and Matter of Stewart Tabori & Chang (Stewart) (282 AD2d 385 [1st Dept 2001], lv denied

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Bluebook (online)
21 Misc. 3d 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bear-stearns-co-v-fulco-nysupct-2008.