2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2014

Joseph Bellantuono v. ICAP Securities USA, LLC

Precedential or Non-Precedential: Non-Precedential

Docket 12-4253

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Joseph Bellantuono v. ICAP Securities USA, LLC" (2014). 2014 Decisions. Paper 126.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/126
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4253

_____________

JOSEPH BELLANTUONO,

 Appellant

v.

ICAP SECURITIES USA, LLC

_____________

Appeal from the United States District Court

for the District of New Jersey

(Civ. Action No. 2-11-cv-05289)

District Judge: Honorable Esther Salas

_____________

Submitted Pursuant to LAR 34.1(a)

on November 6, 2013

Before: GREENAWAY JR. , VANASKIE, and ROTH, Circuit Judges

(Filed: January 30, 2014)

___________ 

OPINION

__________

VANASKIE, Circuit Judge.

At issue in this appeal from an order confirming an arbitration award is whether 

the arbitration panel manifestly disregarded the law or material evidence by denying 

discovery of certain documents, and whether the arbitration panel manifestly disregarded 
2

the law by refusing to grant a mistrial or strike pleadings as a sanction for the untimely 

production of a document. Having carefully reviewed the record, we conclude that 

Appellant Joseph Bellantuono has failed to carry his substantial burden of showing a 

manifest disregard of the law or a failure to consider material evidence in the arbitration 

panel’s rulings. Accordingly, we will affirm the District Court’s judgment. 

I. 

We write primarily for the parties, who are familiar with the facts and procedural 

history of this case. Accordingly, we set forth only those matters necessary to our 

analysis. 

Joseph Bellantuono worked for ICAP Securities USA, LLC (“ICAP”) and its 

predecessors for approximately twenty-two years before he was fired in September 2008. 

At the time of his termination, Bellantuono worked as a senior broker on ICAP’s 

Mortgage Backed Securities (“MBS”) Desk. In his capacity as a broker, Bellantuono 

“was responsible for generating profits for clients by using client funds to buy and sell 

financial instruments.” (Appellant’s Br. at 4).

In February 2003, Bellantuono and ICAP entered into a written employment 

agreement, setting forth the conditions of Bellantuono’s position as a broker, and 

providing for a two year term beginning on January 1, 2003 and ending on December 31, 

2004. The parties twice extended the 2003 employment agreement by written addenda, 

with the final extension concluding on December 31, 2008. Bellantuono and ICAP 

dispute whether John Geraci, the MBS Desk Manager, orally extended Bellantuono’s 
3

employment agreement with ICAP beyond that date. The agreement specified that ICAP 

“[m]ay terminate immediately this Agreement and [Bellantuono’s] employment under 

this agreement, for cause.” (App. 205). 

In addition to performing client services as a broker, Bellantuono also used ICAP 

funds to purchase financial instruments with the aim of generating personal and corporate 

profits — a practice known as “proprietary trading.” In order to facilitate such trading, 

ICAP created a “house” account, or the “210 Account.” Bellantuono and Geraci were the 

only employees permitted to engage in proprietary trading using funds from the 210 

Account. They each received 25% of the profits generated by the account, with the other 

50% going to ICAP. It is undisputed that until January 2007, Bellantuono engaged in 

proprietary trading with ICAP’s permission. 

ICAP formally banned proprietary trading in January 2007. Bellantuono 

nevertheless testified at the arbitration hearing that, with the blessing of ICAP executives, 

he continued trading in the 210 Account “throughout 2007 and during the first quarter of 

2008 . . . with the intent to make a profit . . . .” (App. 1371). According to Bellantuono, 

he never even heard the term “proprietary trading,” let alone learned of ICAP’s 

prohibition of the practice until “somewhere around” May 2008. (App. 1372). 

Conversely, ICAP asserts that Bellantuono knew of the company’s ban on proprietary 

trading by, at least, April 1, 2008. Geraci testified that on that date, he delivered to 

Bellantuono a copy of ICAP’s March 28, 2008 Broking Policy, which states that “neither 

ICAP nor any of its brokers shall engage in proprietary trading.” (App. 112). 
4

ICAP also alleges that Bellantuono impermissibly engaged in a practice known as 

“flashing” or “flash trading” whereby he disseminated false trading information into the 

marketplace by posting fictitious trades on public trading screens. In 2006, in response to 

an SEC investigation into flash trading by ICAP’s United States Treasury Desk, the 

company instituted policies prohibiting the practice of flash trading. ICAP asserts that 

despite being made aware of these policies, Bellantuono “had engaged in the prohibited 

activity of flash trading . . . [in 2007 and 2008].” (App. 253).

In 2008, the SEC issued subpoenas seeking documentation and information 

relating to the MBS Desk. As a result, ICAP hired the law firm of Cleary Gottlieb Steen 

& Hamilton (“Cleary Gottlieb”) to conduct an internal investigation into the MBS Desk. 

In July 2008, ICAP’s CEO, Douglas Rotten, suspended Bellantuono pending the results 

of Cleary Gottlieb’s investigation. At the arbitration hearing, Rotten testified that during 

his suspension, Bellantuono was provided with counsel and “given the opportunity to 

vindicate himself”, (App. 2205), but was unable to provide any explanation justifying his 

violations of ICAP policies. 

Bellantuono’s employment with ICAP was terminated on September 8, 2008. 

Following his termination, ICAP filed with the SEC a Uniform Termination for 

Securities Industry Regulation, or “Form U-5,” indicating that, among other reasons, 

Bellantuono was fired for “violation of company’s policies and procedures relating to 
5

certain broking and related practices.”1 (App. 358). On September 12, 2008, ICAP’s 

general counsel sent Bellantuono a termination letter, which offered essentially the same 

explanation for his dismissal.2

On February 2, 2009, Bellantuono commenced a FINRA arbitration proceeding 

against ICAP, claiming wrongfully withheld compensation, breach of contract by not 

extending his employment through 2010, wrongful employment termination, and 

defamation. According to Bellantuono, the justifications proffered by ICAP in its 

September 12, 2008 termination letter were pretexts for his suspension and subsequent 

firing. The real reason he was fired, according to Bellantuono, was that ICAP offered 

him as a sacrificial lamb “in order to placate the SEC and deter an invasive and expansive 

investigation.” (App. 20). 

The three-member FINRA panel (the “Panel”) overseeing the arbitration 

proceedings issued a scheduling order on November 24, 2009. The parties thereafter 

engaged in discovery over the course of approximately seven months. Pursuant to the 

 1 In Bellantuono’s Form U-5, dated September 12, 2008, and signed by ICAP’s 

Corporate Compliance Officer, Bruce E. Fenske, a circle indicating “yes” is filled in 

beside the question “[c]urrently is, or at termination was, the Individual under internal 

review for fraud or wrongful taking of property, or violation of Investment-related

statutes, regulations, rules or industry standards of conduct.” (App. 359). 

2 As the District Court explained, ICAP’s September 12, 2008 termination letter 

stated that Bellantuono’s “violative conduct” included, without limitation, “(1) flash 

trading; (2) proprietary trading; (3) violating [ICAP’s] March 2008 Broking rules; (4) 

using the 210 Account to deprive other brokers of commissions and to circumvent client 

commission caps; (5) unauthorized cancellation or amendment of trades in the 210 

Account; and (6) charging improper commissions.” (App. 5).
6

Panel’s scheduling order, discovery closed on June 30, 2010 and the deadline to file 

discovery motions was August 31, 2010. Nevertheless, and even though the arbitration 

hearing was scheduled to begin on December 7, 2010, Bellantuono filed a motion on 

December 3, 2010 to compel production of all documents relating to the MBS Desk that 

ICAP produced to the SEC. Three days later, on December 6, 2010, just one day before 

the arbitration hearing was set to begin, Bellantuono filed a “motion to compel 

production of all documents prepared in connection with the internal investigation 

conducted by . . . Cleary Gottlieb . . . on behalf of [ICAP].” (App. 387). ICAP submitted 

a letter brief in opposition, arguing that Bellantuono’s motions were both untimely and 

meritless. 

In addition to considering both parties’ written submissions, the Panel conducted 

oral argument on Bellantuono’s motions. After each side reiterated their positions and 

responded to questions posed by the arbitrators, the Panel denied Bellantuono’s motions 

without an opinion. 

Bellantuono achieved a somewhat different result when he renewed his motions 

during the arbitration hearing. The Panel still refused to require production of the Cleary 

Gottlieb investigation file, but it ordered ICAP to “produce or to search and produce” 

documents that Cleary Gottlieb sent to the SEC in response to subpoenas. (App. 1383). 

ICAP acted in accordance with the Panel’s order by producing 456 conforming 

documents, excluding a number of communications that the company deemed irrelevant, 

confidential or privileged. Bellantuono, however, argued that ICAP had failed to comply 
7

with the Panel’s discovery order by withholding the excluded documents. The Panel 

heard oral argument on the issue, considered case law presented by the parties, and 

denied Bellantuono’s motion, holding that ICAP’s production complied with the Panel’s

previous order.

On June 22, 2011, after 18 days of hearings over the course of 6 months, during

which 12 witnesses testified and over 70 documents were introduced into evidence, the 

Panel awarded Bellantuono $643,500 plus interest. The Panel did not explain the basis 

for its award, but both parties agree that the figure compensates Bellantuono for his 

unpaid 2008 second quarter bonus.

On September 15, 2011, Bellantuono commenced an action in the United States 

District Court for the District of New Jersey to vacate the arbitration award under the 

Federal Arbitration Act (“FAA”), 9 U.S.C. § 10. He argued that such relief was 

necessary because the Panel “manifestly disregarded the law and failed to consider 

material evidence . . . .” (App. 30). ICAP opposed Bellantuono’s petition and moved for 

confirmation of the award as permitted by the FAA, 9 U.S.C. § 9. 

On October 12, 2012, the District Court denied Bellantuono’s petition to vacate, 

granted ICAP’s cross-petition, and affirmed the Panel’s award. The District Court held 

that Bellantuono failed to meet “his burden to demonstrate that the panel’s decisions 

amounted to a manifest disregard of the law”, (App. 10), or that the Panel was guilty of 

misconduct. 
8

Bellantuono appeals, challenging the District Court’s confirmation of the 

arbitration award. He asks this Court to reverse for substantially the same reasons that he 

challenged the award before the District Court. 

II.

The District Court exercised jurisdiction over Bellantuono’s petition to vacate or 

modify the arbitration award and ICAP’s cross-petition to confirm the award pursuant to 

28 U.S.C. § 1332(a) and 9 U.S.C. § 9. We have appellate jurisdiction under 28 U.S.C. § 

1291 and 9 U.S.C. §16(a). When reviewing a district court decision upholding an 

arbitration award, we review the district court’s “legal conclusions de novo and its factual 

findings for clear error.” Sutter v. Oxford Health Plans LLC, 675 F.3d 215, 219 (3d Cir. 

2012), aff’d, 133 S.Ct. 2064 (2013). 

Our review of the arbitration award itself, however, “could be generously 

described only as extremely deferential.” Dluhos v. Strasberg, 321 F.3d 365, 372 (3d 

Cir. 2003). “[M]indful of the strong federal policy in favor of commercial arbitration, we 

begin with the presumption that the award is enforceable.” Sutter, 675 F.3d at 219. The 

narrow circumstances under which a court may vacate an arbitration award are defined 

exclusively in Section 10 of the FAA. See Hall Street Assocs. LLC v. Mattell, Inc., 552 

U.S. 576, 586-87 (2008). A court may vacate an arbitration award pursuant to Section 10 

where: (1) the award was procured by corruption, fraud, or undue means; (2) the 

arbitrators demonstrated partiality or corruption; (3) the arbitrators were guilty of 

misconduct; or (4) the arbitrators exceeded their powers. 9 U.S.C. § 10(a)(1)-(4). 
9

Bellantuono challenges the arbitration award on a ground not specifically listed in 

Section 10 of the FAA: “manifest disregard of the law.” It is to that particular assertion 

that we first direct our attention. 

A. Manifest Disregard of the Law

Bellantuono contends the Panel’s handling of certain discovery-related issues 

reflected such a manifest disregard of controlling law that its award must be vacated. 

Prior to the Supreme Court’s decision in Hall Street, this Court and many others held that 

a court may vacate an arbitration award if the “arbitrator’s decision evidences a manifest 

disregard for the law” even though “manifest disregard for the law” is not one of the 

statutorily prescribed grounds for vacatur enumerated in Section 10 of the FAA. See, 

e.g., Tanoma Min. Co. v. Local Union No. 1269 United Mine Workers, 896 F.2d 745, 749 

(3d Cir. 1990) (internal quotation marks and citation omitted). The Supreme Court in 

Hall Street held that “the grounds for vacatur . . . provided by § . . . 10 . . . of the FAA are 

exclusive.” 552 U.S. at 581. Since then, our sister Circuit Courts of Appeals are split on 

the question of whether manifest disregard of the law remains a viable ground for 

vacating an arbitration award.3

 3 The Second, Fourth and Ninth Circuits have held that manifest disregard of the 

law survived Hall Street because an arbitrator exceeds his powers under 9 U.S.C. § 

10(a)(4) by manifestly disregarding the law. See Stolt-Nielsen SA v. AnimalFeeds Int’l 

Corp., 548 F.3d 85, 93-95 (2d Cir. 2008), overruled on other grounds, 559 U.S. 662 

(2010); Wachovia Sec. LLC v. Brand, 671 F.3d 472, 480 (4th Cir. 2012); Comedy Club, 

Inc. v. Improv W. Assocs., 553 F.3d 1277, 1281 (9th Cir. 2009). Conversely, the Fifth, 

Eighth and Eleventh Circuits have held that manifest disregard of the law is no longer a 
10

This Court has not yet ruled on the issue. Because we find that the District Court 

was correct in concluding that the Panel did not act in manifest disregard of the law, we 

need not do so here. 

The manifest disregard theory allows a court to vacate an arbitration award “where 

the arbitrator’s decision evidence[s] a manifest disregard for the law rather than an 

erroneous interpretation of the law.” Dluhos, 321 F.3d at 369 (internal quotation marks 

omitted). A party seeking to vacate an arbitration award based on the theory that the 

arbitrators manifestly disregarded the law “bears the burden of proving that the arbitrators 

were fully aware of the existence of a clearly defined governing legal principle, but 

refused to apply it, in effect, ignoring it.” Duferco v. Int’l Steel Trading v. T. Klaveness 

Shipping A/S, 333 F.3d 383, 389 (2d Cir. 2003). The question here is whether the 

Panel’s discovery rulings or the Panel’s refusal to grant a mistrial for the untimely 

production of a document reflect a refusal to apply a plainly controlling rule of law.

1. ICAP Documents sent to the SEC

During the arbitration proceedings, Bellantuono sought to compel the production 

of any and all documents that Cleary Gottlieb produced to the SEC on behalf of ICAP. 

He argued that “at least 260,000 pages of documents were submitted to the SEC” that 

 

valid ground for vacatur in light of Hall Street. See Citigroup Global Mkts., Inc. v. 

Bacon, 562 F.3d 349, 350 (5th Cir. 2009); Medicine Shoppe Int’l, Inc. v. Turner Invs., 

Inc., 614 F.3d 485, 489 (8th Cir. 2010); Frazier v. CitiFinancial Corp., 604 F.3d 1313, 

1314 (11th Cir. 2010).
11

were never produced by ICAP in “violation of the Panel’s order . . . .” (App. 492). On 

appeal, Bellantuono asserts that the Panel’s “failure to compel disclosure of the 

communications between the SEC and ICAP clearly constituted manifest disregard of the 

law.” (Appellant’s Br. at 27). We disagree. 

ICAP had objected to production of documents delivered to the SEC on various 

grounds, including relevance and privilege. The Panel denied the request for production 

of documents without offering an explanation. Under these circumstances, Bellantuono 

“faces a tremendous obstacle. If a court can find any line of argument that is legally 

plausible and supports the award then it must be confirmed.” Merrill Lynch, Pierce, 

Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995). Bellantuono has not 

carried his substantial burden of showing that the bases for ICAP’s objections to 

production were implausible. Nor has he pointed to any controlling law that the Panel 

manifestly disregarded. In this regard, discovery rulings are largely discretionary, and we 

cannot say that there is “absolutely no support at all in the record justifying the [Panel’s] 

determinations” that would warrant denial of enforcement of the award. News America 

Publ’ns, Inc. v. Newark Typographical Union, Local 103, 918 F.2d 21, 24 (3d Cir. 1990). 

Accordingly, the District Court properly concluded that the Panel did not manifestly 

disregard the law in refusing to compel the production of communications between ICAP 

and the SEC.

2. The Cleary Gottlieb Investigation File
12

The record also shows that prior to denying Bellantuono’s motion to compel 

production of the Cleary Gottlieb investigation file, the Panel meaningfully considered 

both sides’ arguments regarding whether the file was protected as work product or 

privileged as attorney-client communications. In fact, the Panel heard oral argument on 

the issue on two separate occasions. And each time, ICAP presented plausible legal 

arguments that support the Panel’s decision to refuse to compel production. We are 

therefore not persuaded that the Panel’s holdings regarding the Cleary Gottlieb 

investigation file constitute a manifest disregard of the law. 

Bellantuono also argued at the arbitration hearing that even if the Cleary Gottlieb 

investigation file could be considered protected by the attorney client and work product 

privileges, ICAP waived those privileges by placing the “advice of counsel” at issue. 

ICAP countered by asserting that Bellantuono was mischaracterizing the company’s 

position as an “advice of counsel” defense. ICAP acknowledged that the facts uncovered 

during Cleary Gottlieb’s investigation were discoverable, but argued that the law firm’s 

legal advice and mental impressions related to those facts were privileged. In support of 

its arguments, ICAP presented the Panel with relevant law, which it applied to the facts in 

a way that supports the conclusion that ICAP did not waive its right to assert the attorneyclient or work product privileges. 

ICAP’s arguments, both those made orally during the arbitration hearing as well as

in letter briefs, were persuasive and well-supported by the applicable law. “[T]here must 

be absolutely no support at all in the record justifying the arbitrator’s determinations for a 
13

court to deny enforcement of an award.” Id. Accordingly, the Panel’s order denying 

Bellantuono’s motion to compel production of the Cleary Gottlieb investigation file is not 

a sufficient basis for vacating the Panel’s award. 

3. The Mistrial Ruling

On March 2, 2011, after the arbitration hearings had commenced, ICAP, through 

counsel, sent a letter to Bellantuono disclosing that it had “recently discovered” an e-mail 

which it “previously had been unable to locate.” (App. 676). ICAP subsequently sought 

to admit the e-mail into evidence on March 23, 2011. In so doing, ICAP’s counsel 

described the contents of the e-mail, revealing that it was sent to Bellantuono and 

contained a copy of ICAP’s March 28, 2008 Broking Policy. Arguing that introduction 

of the e-mail would prejudice him, Bellantuono moved to preclude ICAP from 

introducing it into evidence. He also moved for a mistrial and sanctions against ICAP’s 

counsel, asserting that “ICAP clearly attempted to influence the panel by describing 

documents that could not possibly have been admitted as evidence in this case.” (App. 

29). The Panel granted Bellantuono’s motion to preclude the e-mail, but it denied his 

motion for a mistrial or sanctions. Bellantuono now contends that the Panel manifestly 

disregarded the law by “refus[ing] to hold [ICAP] accountable in any manner for its 

utterly improper conduct in failing to produce” the “highly damaging email . . . and then 

disclosing its contents” during the arbitration hearing. (Appellant’s Br. at 29).

As Bellantuono concedes, his motion for a mistrial was governed by Wymbs v. 

Twp. of Wayne, 750 A.2d 751, 762 (N.J. 2000), where the New Jersey Supreme Court 
14

held that trial courts enjoy “wide discretion in deciding the appropriate sanction for a 

breach of discovery rules,” including with respect to a surprise witness or surprise 

testimony. Id. (internal quotation marks omitted). We agree with the District Court that 

Bellantuono’s argument “amounts to nothing more than a disagreement with the [P]anel’s 

application of Wymbs,” which “is not the standard by which the Court may vacate an 

arbitration award.” (App. 13). 

B. Refusal to Consider Pertinent and Material Evidence

Bellantuono also presents a challenge to the Panel’s award on a ground 

specifically set forth in section 10 of the FAA: “misconduct . . . in refusing to hear 

evidence pertinent and material to the controversy . . . .” 9 U.S.C. § 10(a)(3). 

Bellantuono argues that the Panel’s failure “to compel production of both the settlement 

communications between ICAP and the SEC and the Cleary Gottlieb investigation file” 

constitutes such misconduct. (Appellant’s Br. at 33). He contends that vacatur is 

appropriate under Section 10(a)(3) because the Panel’s misconduct deprived him of a fair 

hearing. Specifically, Bellantuono contends that the panel ignored material evidence 

because the documents would have allowed him to evaluate whether ICAP used his 

termination as a “bargaining chip in its negotiations for a lesser penalty or more favorable 

language in the settlement agreement and/or press release.” (Appellant’s Br. at 34). 

In order for a court to vacate an arbitration award based on the arbitrator’s 

“misconduct in refusing to hear evidence pertinent and material to the controversy[,]” 9 

U.S.C. § 10(a)(3), the arbitrator’s “error must be one that is not simply an error of law, 
15

but which so affects the rights of a party that it may be said that he was deprived of a fair 

hearing.” Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 

594, 599 (3d Cir. 1968). The Panel’s rulings in this case did not deprive Bellantuono of a 

fair hearing. Indeed, the Panel granted Bellantuono broad leeway to pursue his position

that ICAP used him as a bargaining chip in its negotiations with the SEC. Bellantuono’s 

counsel questioned at least three different witnesses on that very issue, and he questioned 

several others on the language of a press release drafted by ICAP – which mentioned 

Bellantuono. The Panel simply refused to allow Bellantuono to search for evidence in 

documents that it found to be privileged or otherwise not discoverable. The Panel’s 

rulings may indeed have been incorrect, and we may not agree with its exercise of 

discretion; nonetheless, even erroneous Panel rulings “hardly can be characterized as 

‘misconduct.’” Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 

513, 557 (3d Cir. 2009).

III.

For the foregoing reasons, we will affirm the judgment of the District Court.