United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Respondent Michael
Cohen's Motion to Vacate Arbitration Award (the
“Motion”) [ECF No. 22] and Petitioner Aegis
Capital Corporation's (“Aegis”) Petition for
an Order Confirming Arbitration Award and Entry of Judgment
(the “Petition”) [ECF No. 1]. The Court has
considered the Motion, the Petition and the record and is
otherwise fully advised. For the following reasons, the
Motion is denied, the Petition is granted, and the Award is
a dispute over an arbitration award. Michael Cohen was a
broker who at one time worked for Aegis. When hired, Cohen
signed a promissory note (the “Note”) with Aegis
for $200, 000.00 with the understanding that the Note would
be forgiven once he generated three million dollars in gross
production. Aegis terminated Cohen after almost three years.
initiated arbitration through the Financial Industry
Regulatory Authority (“FINRA”) against Aegis for
breach of contract, fraud in the inducement, unjust
enrichment, and breach of the obligation of good faith and
fair dealing. Aegis asserted a counterclaim seeking return of
unpaid debt owed on the Note, alleging that Cohen had not
generated the three million dollars he had guaranteed: he was
$63, 134.00 short. The parties arbitrated this matter for
almost two years. On February 12, 2019, the arbitrators
entered an arbitration award for compensatory damages and
attorney's fees in favor of Aegis and against Cohen (the
then filed this action to confirm the Award. [ECF No. 1].
Cohen immediately moved to stay these proceedings, arguing
that his time to move to vacate the Award had not elapsed,
and shortly thereafter filed the instant Motion. Cohen argues
that the Award was flawed for two reasons. First, he argues
that the FINRA arbitration panel (the “panel”)
displayed evident partialit y and bias in Aegis's favor
because the panel refused to move a hearing to accommodate
Cohen's counsel's trial schedule and because the
Chairperson made a statement referencing Aegis's
counterclaim that reflected prejudgment of the case. [ECF No.
22, at 4]. Second, Cohen argues, without any specificity,
that the panel imperfectly executed their powers by
disregarding his evidence. Id.
Court instructed Cohen to file the panel's decision and
hearing transcript, as well as a brief detailing specific
instances in which the panel exhibited bias, prejudgment,
and/or imperfect execution. [ECF No. 26 (citing 9 U.S.C.
§ 10(a)]. Cohen responded with a copy of the decision,
but no citations as the Court requested. Cohen's case
therefore rests on the arguments in his Motion.
has not met either the evident partiality or the imperfect
execution standards of the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 10(a)(2), (4).
Original Appalachian Artworks, Inc. v. JAKKS Pac.,
Inc., 718 Fed.Appx. 776, 780 (11th Cir. 2017)
(“[A] party seeking to vacate an arbitrator's award
has the burden of establishing the existence of a specific
statutory ground for vacatur.”). “Because
arbitration is an alternative to litigation, judicial review
of arbitration decisions is among the narrowest known to the
law.” AIG Baker Sterling Heights, LLC v. Am.
Multi-Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007)
(quotation omitted). Indeed, “[t]he Federal Arbitration
Act expresses a presumption that arbitration awards will be
confirmed.” Aviles v. Charles Schwab &
Co., 435 Fed.Appx. 824, 827 (11th Cir. 2011) (citing
Booth v. Hume Pub., Inc., 902 F.2d 925, 932 (11th
seeking to overturn an arbitration award on the grounds of
evident partiality must show that the alleged partiality was
“direct, definite and capable of demonstration rather
than remote, uncertain and speculative.” Lifecare
Int'l, Inc. v. CD Med., Inc., 68 F.3d 429, 433 (11th
Cir. 1995) (quoting Middlesex Mut. Ins. Co. v.
Levine, 675 F.2d 1197, 1201 (11th Cir. 1982)),
opinion modified and supplemented, 85 F.3d 519 (11th
Cir. 1996). Accordingly, the mere appearance of bias or
partiality is not enough to set aside an arbitration award.
Id. Rather, “[t]he party seeking vacatur must
point to evidence of an actual conflict of interest or
identify a business or other connection that might create a
reasonable impression of possible bias that the arbitrator
failed to disclose.” Aviles, 435 Fed.Appx. at
828-29; see also Citigroup Global Mkts., Inc. v.
Berghorst, No. 11-80250-CIV, 2012 WL 5989628, at *4-5
(S.D. Fla. Jan. 20, 2012) (evident partiality existed where
arbitrator had been terminated for cause by one party to
arbitration and arbitrator failed to disclo se that history).
Cohen's challenge to the panel's refusal to move a
hearing and to one comment by the Chairperson referencing the
Note-the lynchpin of Aegis's counterclaim-does not
survive under this standard as Cohen has not identified
either an actual conflict or other connection creating a
reasonable impression of partiality.
also argues that the panel imperfectly executed their powers
by disregarding his evidence. But the Court may not vacate an
award because a party disagrees with a panel's
evidentiary decisions. Greene, 468 S.E.2d at 354
(“[A] reviewing court is prohibited from weighing the
evidence submitted before the arbitrator, regardless of
whether the court believes there to be sufficient evidence,
or even any evidence, to support the award.”). A court
may only vacate an award based upon an evidentiary challenge
if there was prejudice to the rights of the parties in the
arbitration proceedings. See Aviles, 435 Fed.Appx.
at 828. Merely stating that the panel
“disregarded” Cohen's evidence does not,
without more, demonstrate prejudice.
because no grounds for vacatur exist, the FAA requires the
Court to grant the Petition and confirm the Award. 9 U.S.C.
§ 9. It is therefore ORDERED AND
(1) the Petition for an Order Confirming Arbitration Award
and Entry of Judgment [ECF No. 1] is
(2) the Award is CONFIRMED;
(3) Respondent's Motion to Vacate Arbitration Award is
[ECF No. 22] is DENIED;
(4) Respondent's Renewed Motion to Stay Proceedings [ECF
No. 14] ...