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The U.S. Court of Appeals for the 2nd Circuit last week sharply rebuked a National Association of Securities Dealers arbitration panel for trying to restrict an award of attorney fees to a successful age discrimination claimant. A three-member NASD panel concluded that Bernhard Porzig was fired from his sales job at investment bank Dresdner Kleinwort in violation of the federal Age Discrimination in Employment Act and awarded him more than $200,000 in damages. But contrary to the requirements of the ADEA, the panel denied Porzig attorney fees and assessed him around $14,000 in arbitration costs. Instructed to modify the award on appeal to Southern District of New York Judge Barbara Jones, the arbitrators received an application from Porzig’s lawyer, Michael O’Donnell of Greenwich, Conn., for around $262,000 in attorney fees, including fees incurred in appealing the earlier decision. But Dresdner Kleinwort filed an application urging the award be capped by the one-third contingent fee Porzig had with his lawyer. The arbitrators subsequently awarded $83,500 in attorney fees and costs, and they ordered O’Donnell to return to Porzig the $82,438 contingent fee the lawyer had already received. Jones denied Porzig’s motion to vacate and he appealed to the 2nd Circuit. On Aug. 7, a unanimous appeals panel said the normal deference given by courts to arbitration decisions could not be maintained in cases in which arbitrators showed “manifest disregard for the law.” The law governing the case, the court said, was clear that attorney fees were mandatory, and were not restricted by any fee agreements. The circuit panel said it was particularly troubled that the NASD arbitrators had attacked the fee agreement Porzig had with his lawyer. “The Panel here was plainly without jurisdiction to order Porzig’s lawyer to pay back to his client the specified contingency fee,” the opinion stated. The court said the arbitrators had given no reasoning for their decision, but that the similarity of the award to O’Donnell’s contingent fee suggested Dresdner Kleinwort’s application had been influential. But the court said that application incorrectly stated the law, and that the U.S. Supreme Court’s 1989 ruling in Blanchard v. Bergeron clearly established that a contingency fee could not serve as a cap on a statutory award of attorney fees. The court vacated the arbitrators’ decision on attorney fees and remanded the case to the district court. Dresdner Kleinwort was represented by Barry Cozier of Epstein, Becker & Green.
Anthony Lin is a reporter with the New York Law Journal , an ALM publication.

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