obstruction of justice, not employment discrimination.
The Supreme Court has ruled that statutory claims may be "the
subject of an arbitration agreement, enforceable pursuant to the
[Federal Arbitration Act]." Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
In addition, Cole supports the arbitration of statutory claims
as long as an employee is not required to pay for an arbitrator's
fees and expenses. It is undisputed that plaintiff entered into
an agreement to arbitrate any claim required to be arbitrated
under the NASD rules. Dkt. 28, Ex. 3. Because the NASD rules
require arbitration of claims arising out of the termination of
employment, and because plaintiff's novel statutory claims are
not strictly employment discrimination claims, plaintiff must
arbitrate Counts One, Two, and Three in his complaint. As a
result, defendants' motion to compel arbitration shall be
granted. In conducting the arbitration of plaintiff's statutory
claims, the panel selected should heed the teaching of Cole
that, in this Circuit, the obligation to compensate arbitrators
for their services and reimburse their expenses falls entirely
upon the employer. See supra pp. 4-5.
Because defendants' motion to confirm the arbitration award,
which dismissed with prejudice plaintiff's common law claims,
shall be granted and a judgment entered, and because defendants'
motion to compel arbitration of plaintiff's statutory claims
shall be granted, plaintiff's amended complaint is now moot; an
accompanying order dismisses it.
There are three pending motions in this matter. Defendants'
Wheat First, First Union Corporation, and Marshall Wishnack move
to compel arbitration, or in the alternative, to dismiss
plaintiff's first amended complaint (Dkt.28). Defendants' Wheat
First and First Union move to confirm arbitration award (Dkt.29).
Plaintiff moves to vacate arbitration award (Dkt.26). For the
reasons stated in the accompanying Memorandum, it is this 13th
day of June 2000, hereby
ORDERED: that plaintiff's motion to vacate arbitration award is
DENIED, and it is further
ORDERED: that defendants' cross-motion to confirm arbitration
award is GRANTED, so that it is further
ORDERED: that JUDGMENT is entered pursuant to the November 9,
1999, award of the panel of National Association of Securities
Dealers, Inc., arbitrators, and it is further
ORDERED: that defendants' motion to compel arbitration of
plaintiff's statutory claims (Counts 1-3) is GRANTED, and it is
ORDERED: that the new arbitration panel shall assess
arbitrator's fees and expenses consistent with Cole v. Burns
International Security Services, 105 F.3d 1465 (D.C.Cir. 1997),
and the accompanying Memorandum, and it is further
ORDERED: that plaintiff's amended complaint is DISMISSED as