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Case 1:12-cv-03485-TPG Document 10 Filed 10/11/12 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STREAM INTERNATIONAL GLOBAL
SERVICES PHILIPPINES, INC.,

Petitioner,

Case No. 12 CIV 3485 (TPG)

v.

PEEK, INC.,

Respondent.

MOTION TO ENTER JUDGMENT CONFIRMING ARBITRATION AWARD

MEMORANDUM OF LAW IN SUPPORT OF

Petitioner Stream International Global Services Philippines, Inc. ("Stream") submits this

memorandum of law in support of its Motion to Enter Judgment Confirming Arbitration Award

in the above-captioned matter. The arbitral award that is the subject of Stream's Petition to

Confirm Arbitration Award, filed in this Court on May 2, 2012, is amply supported by the

uncontested arbitral record and deserves to be summarily confirmed.

Factual Background

The Parties

Stream is a Philippines corporation with a principal place of business at PBCom Tower,

15th Floor, 6795 Ayala Avenue cor. V.A. Rufino Street, Makati City, Philippines. Stream is in

the business of providing outsourced, multi-lingual call center services to facilitate product

orders and to offer technical product support to clients' customers. Stream is a subsidiary of

Stream Global Services, Inc. which, through its subsidiaries and related entities, provides these

services for clients in a variety of businesses, including Internet service providers, software

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companies, computer hardware manufacturers, wireless and telecommunication providers, and

others, from approximately fifty locations serving twenty-two countries in thirty-five languages.

See Declaration of Leonard G. Learner in Support of Petition to Confirm Arbitration Award,

filed on May 8, 2011, ("Learner Declar.") ~ 3.

Respondent Peek, Inc. ("Peek") is a corporation with a principal place of business at 33

West 17th Street, 9th Floor, New York, New York. See id. ~ 4; Declaration of Mathew F.

Putorti, filed herewith, ("Putorti Declar.") ~~ 3-4. According to its website, Peek also maintains

two offices in India and three offices in China. Peek is in the business of producing handheld

mobile Internet devices and "smart phone" applications that perform email and other functions.

Peek then sells these devices and applications to its retail customers. See Learner Declar. ~ 4.

On November 10, 2008, Stream's predecessor and Peek entered into a Master Services

Agreement ("Agreement") pursuant to which Stream was to provide call center services to Peek

consistent with a Statement of Work appended to the Agreement for a period of three years from

the effective date of the Agreement, with the term of the Agreement renewing automatically for

successive one-year periods thereafter if neither party provided the other with one hundred

eighty (180) days written notice of its intent not to renew. See id. ~ 5 & Exhibit B thereto.

Section 21.2 of the Agreement contains an arbitration provision that states in pertinent

part:

Any and all ... disputes or controversies, whether of law or fact and of any nature
whatsoever arising from or in connection with this Agreement, including the
scope and validity of this Section, shall be decided by binding arbitration in
accordance with the rules and regulations of commercial arbitration of the
American Arbitration Association .... Arbitration shall take place in New York,
New York .... The decision of the arbitrator will be final and binding upon the
Parties hereto and all persons claiming under and through them; provided,
however, that either Party or any such other claiming person may seek the
vacating, modification or correction of the arbitrator's decision or award as
provided under Section 10 and Section 11 of the Federal Arbitration Act 9 U.S.C.

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§ 1-14 .... The losing Party shall be required to pay the reasonable legal fees and
costs of the prevailing Party as determined by the arbitrator(s).

Pursuant to the Agreement, the parties also agreed that New York law would govern the

Agreement. Section 22.5 of the Agreement states, "This Agreement shall be governed by and

construed in accordance with the internal laws (and not the conflict oflaws) of the State ofNew

York." !d. at Exhibit B.

The parties further agreed that this Court or the courts of the State of New York would

have sole and exclusive jurisdiction over any suit arising from the Agreement. Section 22.6 of

the Agreement provides in pertinent part:

Each Party irrevocably agrees that any legal action suit or proceeding brought by
it in any way arising out of this Agreement must be brought solely and
exclusively in the United States District Court for the Southern District of New
York or in the state courts of the State ofNew York and irrevocably accepts and
submits to the sole and exclusive jurisdiction of each of the aforesaid courts in
personam, generally and unconditionally with respect to any action, suit or
proceeding brought by it or against it by the other Party ....

Id

The Arbitration Proceeding

On or about January 27, 2011, Stream filed its Demand for Arbitration with the

International Centre for Dispute Resolution, seeking damages, interest, attorney's fees, and

arbitration costs arising from Peek's failure and refusal to remit payment for call center services

rendered by Stream, in violation of the Agreement. !d.~ 9 & Exhibit C thereto.

Despite being properly served by certified mail, received on January 31, 2011, Peek

failed to file or serve any response of any kind to Stream's Demand for Arbitration. Peek

subsequently failed and refused to respond in any way to any of the procedural orders and other

communications from the arbitration case manager concerning telephone conferences, conflicts

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checks, arbitrator ranking and selection, preliminary hearings, or any other aspect of the

arbitration. /d.~ 10.

On or about April13, 2011, Eugene I. Farber, Esq. of the White Plains, New York law

firm of Farber, Pappalardo & Carbonari, was appointed to act as sole Arbitrator. /d.~ 11. After

written notice had been duly sent to Stream and to Peek, Arbitrator Farber convened a

preliminary conference by telephone on May 11, 2011. Peek failed to participate in the

telephone conference. !d. ~ 12. After the conclusion of this preliminary conference, Arbitrator

Farber issued to the parties Procedural Order Number 1, which ordered in pertinent part:

1. By June 17, 2011 Claimant [Stream] may make a submission in support of its
application for an award.

2. By July 15, 2011 Respondent [Peek] may submit opposition to Claimant's
request.

3. Claimant may submit reply papers by July 29, 2011.

/d. & Exhibit D thereto.

On June 17, 2011, pursuant to the Arbitrator's Procedural Order Number 1, Stream filed

and served the following documents: (1) Application for Arbitration Award; (2) Memorandum

of Law in Support of its Application for Arbitration Award; (3) Affidavit of Michael Montero

and exhibits thereto; (4) Affidavit of Leonard G. Learner, Esq.; and (5) a proposed form of

arbitration award. !d.~ 13 & Exhibit E thereto. Although the Arbitrator's procedural order had

given Peek the opportunity to file and serve an opposition to Stream's June 17, 2011 submission,

Peek failed to do so. /d. ~ 14. On July 25, 2011, the International Centre for Dispute Resolution

gave written notice to the parties declaring that the hearings were closed and that it would accept

no further submissions for Arbitrator Farber's consideration. /d. & Exhibit F thereto.

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The Arbitration Award

Arbitrator Farber issued his award in writing on August 5, 2011 ("Award"). The Award

concluded as follows:

Based upon the above, I hereby Award as follows:

(A) Respondent shall pay to Claimant the principal sum of$182,584.41 plus
interest at the rate of 18% per annum from the date each invoice became due and
owing through June 30, 2011, in the total amount of$52,328.82, plus continuing
interest at the rate of 18% per annum from July 1, 2011 until date of payment.

(B) Respondent shall pay to Claimant attorneys' fees in the amount of
$14,000.00.

(C) The administrative fees and expenses of the International Centre for Dispute
Resolution ("ICDR") totaling $2,800.00 shall be borne by Respondent, and the
compensation and expenses of the arbitrator totaling $3,516.25 shall be borne by
Respondent. Therefore, Respondent shall reimburse Claimant the sum of
$6,316.25, representing said fees and expenses previously incurred by Claimant.

(D) This award is in full settlement of all claims submitted to this Arbitration.

/d. ~ 15 & Exhibit A thereto (bold type in original). The Award has not been vacated or

modified since it was issued. To date, Peek has not complied with the requirements of the

Award, and the full amount of the Award remains outstanding, due, and owing to Stream. /d. ~

16.

Procedural Facts in this Court

Stream commenced this action to confirm the Award on May 2, 2012. On May 3, 2012,

Stream attempted to serve Peek with the petition and supporting papers, by first-class mail,

postage prepaid, at its usual place of business where Stream and the International Centre for

Dispute Resolution had successfully sent prior mailings to Peek. See Putorti Declar. ~ 2. An

affidavit of service was filed in this Court on May 8, 2012. /d. On May 14,2012, Stream's

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mailing was returned to counsel by the United States Postal Service as "undeliverable" and

"unable to forward." !d. ~ 3.

Notwithstanding Peek's attempt to vacate its premises without a trace, Stream eventually

uncovered a new address for Peek on West 17th Street in Manhattan. Stream served Peek by

hand delivery to the West 17th Street address on June 1 and June 7, 2012. On both occasions,

the documents were received by Peek's chief executive officer. Affidavits of service ofthese

documents were filed in this Court on June 4 and June 14, 2012 respectively. See id. ~~ 4-5.

As of the date of this memorandum, Peek has not responded in any way whatsoever to

the documents served upon it by hand delivery on June 1 and June 7, 2012.

Argument

A. Stream's Petition Should Be Treated as an Unopposed Motion for Summary Judgment

In the arbitration phase of this case, Peek not only ignored the procedural requirements of

the International Centre for Dispute Resolution, it also utterly ignored the Arbitrator's Award

itself. Thus, the Award remains completely unsatisfied and even unacknowledged by Peek. See

Learner Declar. ~ 16. Because Peek has ignored the Award and because "[a]rbitration awards

are not self-enforcing," Stream's Award against Peek can be given force and effect only if

converted into a judicial order ofthis Court. D. H Blair & Co., Inc. v. Gottdiener, 462 F.3d 95,

104 (2d Cir. 2006), quoting, Hoeft v. MVL Group, Inc., 343 F.3d 57, 63 (2d Cir. 2003).

Moreover, because Stream's petition to this Court is a continuation of the proceeding

Stream initiated in the arbitral forum, the Federal Arbitration Act provides that Stream's petition

will be treated as a motion in an ongoing proceeding "rather than a complaint initiating a plenary

action." D.H Blair, 462 F.3d at 108; see Productos Mercantiles E Industriales, S.A. v. Fabrege

USA, Inc., 23 F.3d 41, 46 (2d Cir. 1994) (post-arbitration petition properly treated by district

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court "as a motion in accordance with the express provisions" of Federal Arbitration Act); 9

U.S.C. § 6 ("Any application to the court hereunder shall be made and heard in the manner

provided by law for the making and hearing of motions"). I

Where, as here, Peek has continued its practice of ignoring all proceedings against it and

now has failed to respond to Stream's properly-served petition, Stream's petition should be

treated by this Court as akin to "an unopposed motion for summary judgment," with Stream's

submissions in support of its petition serving as the equivalent of a summary judgment record.

D.H Blair, 462 F.3d at 109-10.

B. The Arbitrator's Award in Stream's Favor Should Be Confirmed

Confirmation of an arbitration award typically is a "summary proceeding that merely

makes what is already a final arbitration award a judgment of the court." Florasynth, Inc. v.

Pickholz, 750 F.2d 171, 176 (2d Cir. 1984). A court should confirm the arbitral award "if a

ground for the arbitrator's decision can be inferred" from the record of the arbitration. Barbier v.

Shearson Lehman Hutton, Inc., 954 F.2d 117, 121 (2d Cir. 1972); D.H Blair, 462 F.3d at 109

(the judgment the court enters "should be based" on the arbitration record). Indeed, only a

"barely colorable justification" for an arbitrator's decision is necessary to confirm the award.

Landy Michaels Realty Corp. v. Local 32B-32J, SEIU, 954 F.2d 794, 797 (2d Cir. 1992)_2

I Accordingly, Peek may not be heard to complain that it was not served with process in this case, in accordance
with Fed.R.Civ.P. 4, and therefore had no obligation to respond to Stream's petition. To the contrary, because
Stream's petition is a "motion" (see discussion supra at 6-7), Stream properly served the petition and supporting
materials upon Peek in the manner a motion would be served, pursuant to Fed.R.Civ.P. 5(b)(2)(A)-{B) and Local
Civil Rule 6.1(b). See generally Putorti Declar. ~~ 2-5. Peek was obligated to respond to the properly served
petition, but failed to do so. See D.H Blair, 462 F.3d at 107 ("We agree that the ... Petition should have been
treated as a motion but disagree that [respondents] had no obligation to respond").
2 In the closely analogous context of a motion for summary judgment, judgment will be awarded upon a showing
that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law." Silver v. City University, 947 F.2d 1021, 1022 (2d Cir. 1991); see Okunieffv. Rosenberg, 996 F. Supp. 343,
347 (S.D.N.Y. 1998) (same). There is no genuine issue of material fact "where the record taken as a whole could
not lead a rational trier of fact to fmd for the non-moving party." Gouldv. Winstar Communications, Inc., 686 F.3d
108 108, 118 (2d Cir. 2012).

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In the instant case, the comprehensive and uncontroverted record before this Court

demonstrates conclusively that the arbitration award in Stream's favor should be confirmed.

Stream and Peek were parties to a written agreement pursuant to which Stream would provide

call center services to Peek. See Leamer Declar. ~ 5 & Exhibit B thereto. The parties agreed that

they would arbitrate "[a]ny and all ... disputes or controversies, whether of law or fact and of

any nature whatsoever arising from or in connection with" their written agreement. !d., Exhibit

B § 21.2. Stream fully performed all of its obligations under the agreement, and Peek at no time

indicated any dissatisfaction or other issue with Stream's performance. !d., Exhibit E (Affidavit

of Michael Montero ("Montero Aff.")), ~~ 6-7. Beginning with Stream's November 2009

invoice, without explanation or justification, Peek failed and refused to pay Stream's monthly

invoices for services rendered. !d., Exhibit E (Montero Aff.), ~~ 7-12. After Peek failed to

respond to Stream's numerous attempts, over many months, to discuss the growing arrearage in

Peek's account (!d., Exhibit E (Montero Aff.), ~~ 14-15), Stream filed a demand for arbitration

seeking damages and other relief arising from Peek's refusal to pay for services rendered to it by

Stream, in violation of the agreement. !d. ~ 9 & Exhibit C thereto. Peek failed to file or serve

any response to Stream's demand for arbitration and failed to respond in any way to any

procedural orders or other communications from the Arbitrator or the case manager concerning

any aspect of the arbitration. !d.~ 10. On August 5, 2011, the Arbitrator entered his Award in

Stream's favor. !d.~ 15 & Exhibit A thereto.

The uncontested arbitration record here contains no genuine issue of material fact and

contains ample justification for the Arbitrator's Award. Accordingly, the Award should be

confirmed.

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Conclusion

For all the foregoing reasons, Stream's Motion to Enter Judgment Confirming Arbitration

Award should be granted, and a Judgment in Stream's favor and against Peek should be entered

in the proposed form filed herewith.

Respectfully submitted,

ANDERSON KILL & OLICK, P.C.

',o~

M. O'Connor (JOC-1298)

51 A venue of the Americas

New York, NY 10020-1182
(212) 278-1000
Attorneys for Petitioner Stream
International Global Services Philippines,
Inc.

AND

Leonard G. Leamer, Esq.
Law Offices of Leonard G. Leamer
40 Beverly Road
Wellesley, MA 02481
(781) 237-2060
Co-counsel for Petitioner Stream
International Global Services Philippines,
Inc.

Dated: October 9, 2012
New York, New York

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