STG Secure Trading Group, Inc. v. Solaris Opportunity Fund, LP , 266 F. App'x 838 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2008
No. 07-12263 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-81018-CV-KLR
STG SECURE TRADING GROUP, INC.,
Plaintiff,
ALAN DAVID WEINER,
Interested Party-Appellant,
versus
SOLARIS OPPORTUNITY FUND, LP,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 21, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Alan David Weiner appeals the district court’s April 16, 2007 order
confirming the arbitration award issued to Solaris Opportunity Fund, LP
(“Solaris”) by the National Association of Securities Dealers (“NASD”). On
October 25, 2006, NASD ruled that STG Secured Trading Group (“STG, Inc.”)
and Weiner were jointly and severally liable for over $2 million in unpaid funds
from a prior settlement agreement between Solaris, STG Secure Trading Group,
LLC (“STG, LLC”), and the principals of STG, LLC: Weiner and Scott Budner.
Solaris subsequently filed two separate motions. On November 10, 2006,
Solaris moved to reopen, reconsider, or vacate the district court’s November 1,
2006 order to allow NASD to clarify the scope of the arbitration award.
Specifically, Solaris moved the NASD panel to modify the award to correct several
factual discrepancies, including an incorrect designation of a counselor’s name.
Solaris also sought to modify the arbitration award to reflect that both STG, LLC
and STG, Inc. are liable for the unpaid funds.
On December 22, 2006, Solaris also filed another motion to confirm the
arbitration award and direct entry of judgment against Weiner. On March 12,
2007, nearly four months later, Weiner responded to Solaris’s application and
moved to stay proceedings pending NASD’s final amendments to the award, or
2
alternatively, to vacate the October 25th arbitration award.
In a single order entered on April 13, 2007, the district court granted
Solaris’s motion to vacate the November 1, 2006 order and stayed further
proceedings until the NASD panel resolved the motions pending before it,
clarifying the scope of its decisions as to which entity or entities the award applies.
The court also granted Solaris’s motion to confirm the arbitration award against
Weiner. Declining to address whether Weiner’s motion was untimely, the district
court found that Weiner failed to show that the arbitrators were guilty of
misconduct in refusing to postpone the arbitration hearing, such that the award
should be vacated per 9 U.S.C. § 10(a)(3).1 Because the Sixth Amendment does
not guarantee an absolute right to counsel in civil proceedings, the district court
concluded that the panel did not abuse its discretion, under NASD Rule 10318,2 to
proceed with the arbitration when Weiner, after due notice, failed to appear at the
hearing and claimed to lack counsel.3 Consequently, the court denied Weiner’s
1
Under 9 U.S.C. § 10(a)(3), the district court may vacate an arbitration award “where the
arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause
shown.”
2
NASD Rule 10318 provides:
If any of the parties, after due notice, fails to appear at a hearing or at any continuation of
the hearing session, the arbitrators may, in their discretion, proceed with the arbitration of
the controversy. In such cases, all awards shall be rendered as if each party had entered
an appearance in the matter submitted.
3
Weiner, Budner, and STG, Inc. had given written consent to be represented in the
Solaris arbitration by David J. Feingold, Esq., of Feingold and Kam, LLC. On October 6, 2006,
3
request, and it entered a final judgment against him on April 16, 2007.
“On an appeal of a district court’s decision to confirm or vacate an
arbitration award, we review the district court’s resolution of questions of law de
novo and its findings of fact for clear error.” Rintin, Corp., S.A. v. Domar, Ltd.,
476 F.3d 1254, 1258 (11th Cir. 2007). Upon careful review of the record and
parties’ briefs, we find no reversible error. The district court correctly concluded
that Weiner failed to show that the arbitrators were guilty of misconduct. The
court also correctly found that the NASD panel did not abuse its discretion in
proceeding with the arbitration.
For these reasons, we affirm the district court’s April 13, 2007 order, as it
relates to Appellant Weiner.
AFFIRMED.
before the final NASD hearing, Feingold was forced to withdraw as counsel for all the
respondents because Weiner filed a separate lawsuit against Budner, serving him the day before.
The NASD panel held an emergency hearing on the parties’ requests to postpone the arbitration
proceedings. Budner appeared, with counsel, and requested postponement as to his liability.
Weiner failed to appear, and the panel denied Weiner’s request. The panel then conducted an
evidentiary hearing on Solaris’s claims, ultimately entering an award against Weiner and STG,
Inc.
4