Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-2350

THOMAS W. OLICK,

Plaintiff, Appellant.

_______________________

RICHARD DUHAIME, ET AL.,

Plaintiffs,

v.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Torruella, Circuit Judge,

 Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Thomas W. Olick on brief pro se.

Edwin G. Schallert and Debevoise & Plimpton, LLP on brief for

appellees.

July 14, 2004
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Per Curiam. This appeal involves a dispute growing out of a

massive class action against John Hancock Mutual Life Insurance

Company and related defendants. The underlying suit, brought on

behalf of nearly four million policyholders, charged defendants

with a number of deceptive sales and marketing practices. In a

December 1997 final judgment, the district court certified the

class and approved a comprehensive settlement agreement imposing a

series of remedial measures. See Duhaime v. John Hancock Mut. Life

Ins. Co., 177 F.R.D. 54 (D. Mass. 1997); cf. Duhaime v. John

Hancock Mut. Life Ins. Co., 183 F.3d 1 (1st Cir. 1999) (collateral

appeal). One such measure enabled class members to obtain

individualized relief through an alternative dispute resolution

(ADR) process. 

Appellant Thomas Olick, a former John Hancock agent and

unnamed member of the plaintiff class, here complains about the

manner in which his ADR claims were handled. The ADR mechanism

involves a two-tiered process. A "claim review team" (CRT)

consisting of John Hancock employees initially evaluates a claim

based on objective scoring criteria prescribed by the settlement

agreement. A claimant may then appeal to an independent

arbitrator, who reviews the claim de novo using the same scoring

and relief criteria. The arbitrator's decision is ordinarily

binding. Pursuant to this process, Olick submitted claim forms for

eleven separate policies held by himself and various family
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members. Under circumstances that are unclear from the record

before us, defendants allegedly refused to accept seven of these

claims for ADR resolution. The remaining four were reviewed by the

CRT and given the lowest score of "1." After a hearing, an

arbitrator raised the scores to "2." 

When no awards reflecting these revised scores were

immediately forthcoming, Olick filed a trio of motions. First, in

a "motion to compel and to grant sanctions," he accused defendants

of violating the settlement agreement in two ways: (1) by refusing

to comply with the arbitrator's decision (or even to furnish him

with a copy thereof), and (2) by refusing to submit his other seven

claims to ADR at all. By way of relief, he sought an order

compelling defendants to produce the arbitrator's decision and to

offer awards consistent therewith; he also sought punitive damages

for defendants' alleged "misconduct and contempt." Second, Olick

sought to intervene on behalf of a subclass consisting of former

John Hancock agents and their families, contending that defendants

during the CRT stage had improperly undervalued the claims

submitted by such individuals. Finally, Olick sought an emergency

hearing. 

While these motions were pending, defendants sent settlement

offers to Olick on each of the four ADR claims; according to

defendants, these offers complied in all respects with the

arbitrator's decision. Olick responded with a fourth motion.
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Charging that the offers were "frivolous and substantially less"

than what was mandated by the settlement agreement, he sought

production of all documents employed by defendants in calculating

those offers. 

The district court summarily denied all four motions, but

stated that the motion to compel and for sanctions was denied

"without prejudice pending a showing that defendants have not

complied with the arbitrator's decision, as they represent they now

have." Olick unsuccessfully sought reconsideration without

attempting any such showing. He now appeals. We affirm.

While the district court's 1997 final judgment authorized

"action[s] to enforce the terms of the Settlement Agreement,"

Duhaime, 177 F.R.D. at 77, Olick has failed to carry his burden of

establishing any breach thereof. With respect to the four claims

that were submitted to the ADR process, it suffices to note the

following. Olick's motions are partly moot, now that defendants

have advanced offers in response to the arbitrator's decision. To

the extent not moot, they are misplaced. Olick acknowledges

receiving a "full and fair hearing" before the arbitrator and

concedes that the arbitrator's determination is binding. His vague

accusation that defendants' offers conflict with that determination

is unsupported. And he has not otherwise satisfied the criteria

for intervention. Under these circumstances, the district court

did not err in withholding the relief requested. 
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With respect to the seven claims allegedly excluded from the

ADR process, Olick asserts on appeal that he moved to "compel

arbitration." He also suggests that such a procedure is governed

by the Federal Arbitration Act. 9 U.S.C. § 4. Defendants, for

their part, allege that such claims were the subject of earlier

arbitration unconnected to the Duhaime litigation; Olick retorts

that any such "res judicata defense" is one to be determined by the

arbitrator, not the court. Whatever the merit of these positions,

Olick's premise is mistaken: he never did move below to compel

arbitration of these claims. In the motions under review here, the

only thing he sought to "compel" was compliance with the

arbitrator's decision. With respect to the excluded claims, the

only forms of relief requested were sanctions and punitive damages,

and those were properly denied. Whether Olick might still be able

to compel arbitration of these claims is a matter we leave for

resolution, if and when presented by proper motion, by the district

court in the first instance.

Affirmed.