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  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
  • Gemini Trust Company, LLC vs Matthew Peter Castiglione11 Unlimited - Petition re: Arbitration Award document preview
						
                                

Preview

ADR-106 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address) FOR COURT USE ONLY —~ DARRYL J. HOROWITT #100898 PAUL M. PARVANIAN #247284 COLEMAN & HOROWITT, LLP 499 W. Shaw Ave., Ste.116, Fresno, CA 93704 E-FILED TELEPHONE NO: (559) 248-4820 FAXNO (Optional: (559) 248-4830 3/15/2019 11:15 AM E-MAIL ADDRESS (Optionay: dhorowitt@ch-law.com RESNO COUNTY SUPERIOR COURT ATTORNEY FOR (Name): Petitioner, GEMINI TRUST COMPANY, LLC By: M. Sanchez, Deputy SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO STREET ADDRESS: 1130 "O" Street MAILING ADDRESS: CITY AND ZIP CODE: Fresno, CA 93721 BRANCH NAME: B.F. SISK COURTHOUSE PETITIONER: GEMINI TRUST COMPANY, LLC RESPONDENT: MATTHEW PETER CASTIGLIONE AMEN! PETITION TO [QQ CONFIRM (2) CORRECT vacate CONTRACTUAL ARBITRATION AWARD Jurisdiction (check ail that apply) () Action is a limited civil case Amount demanded [_] does not exceed $10,000 CASE NUMBER: CD exceeds $10,000, but does not exceed $25,000 19CECG00675 [EZ] Action is an unlimited civil case (exceeds $25,000) NOTICE: You may use this form to request that the court confirm, correct, or vacate an award in an arbitration conducted pursuant to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq. and that does not involve an attorney-client fee dispute. If you are requesting court action after an attorney-client fee arbitration award, please read Alternative Dispute Resolution form ADR-105, information Regarding Rights After Attorney-Client Fee Arbitration. Petitioner and respondent. Petitioner (name each) GEMINI TRUST COMPANY, LLC alleges and requests relief against respondent (name each) MATTHEW PETER CASTIGLIONE, Contractual arbitration. This petition requests the court to confirm, correct, or vacate an award in an arbitration conducted according to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq. Pending or new action. a {} A court case is already pending, and this is a petition filed in that action. (Ifso, proceed to item 4.) b. (J This petition commences a new action. (ifso, complete items 3b(1) through 3b(4).) (4) Petitioner's capacity. Each petitioner named in item 1 is an individual, (CED except petitioner (state name and complete one or more of the following) GEMINI TRUST COMPANY, LLC (a) (2) is a corporation qualified to do business in California {b) (21 is an unincorporated entity (specify) (c) (CL) is a representative (specify) (a) (ED is (specify other capacity) New York Limited Liability Company ‘ (2) Respondent's capacity. Each respondent named in item 1 is an individual, (} except respondent (state name and complete one or more of the folowing) {a) [-} is a business organization, form unknown. (b) (2) is a corporation (c) (L) is an unincorporated entity (specify) (a) C) is a representative (specify) (e) (21 is (specify other capacity) Page { of 3 foved for Optional Use PETITION TO CONFIRM, CORRECT, OR VACATE Code of Civil Provedure, § 1285 et 529, rStulct Gouna ot Cali Cy Essential ADR-108 [Now January 1, 20 ceb.com &Forms” CONTRACTUAL ARBITRATION AWARD (Alternative Dispute Resolution) Gemini Trust Company, LLC PETITIONER: GEMINI TRUST COMPANY, LLC CASE NUMBER: 19CECG00675 RESPONDENT: MATTHEW PETER CASTIGLIONE 3.b. (3) Amount or property in dispute. This petition involves a dispute over (check and complete all that apply): (a) CE] the following amount of money (specify amount): $ 200,000.00 (b) (2) property (if the dispute involves property, complete both of the following): a consisting of (identify property in dispute): (ii) having a value of (specify value of property in dispute); $ @) (E] Venue. This court is the proper court because (complete (a) or (b)): (a) (2) this is the court in the county in which the arbitration was held. (b) EX} the arbitration was not held exclusively in any county of California, or was held outside of California, and (check one or more of the following}: a) (CJ this is the court in the county where the agreement was made. (ii) (C)} this is the court in the county where the agreement is to be performed. (ii) [QJ the agreement does not specify a county where it is to be performed and was not made in any county in California, and the following party resides or has a place of business in this county (name of party): Matthew Peter Castiglione 2608 Norwich Avenue, Clovis, CA 93611 (iv) (2) the agreement does not specify a county where it is to be performed and was not made in any county in California, and no party to this action resides or has a place of business in California. Agreement to arbitrate. a. Date. Petitioner and respondent entered into a written agreement on or about(date): November 16, 2017 b. [XZ] Attachment. A copy of the agreement is submitted as Attachment 4(b) and incorporated herein by this reference. c. Arbitration provision. Paragraph of the agreement provides for arbitration of disputes arising out of the agreement as follows (either copy the arbitration provision in full or summarize the provision): Dispute subject to arbitration. A dispute arose between petitioner and respondent concerning the following matter covered by the agreement to arbitrate (summarize the dispute) : Respondent failed to repay Petitioner after receiving an erroneous wire transfer of $200,000.00, due to a glitch in Petitioner's system, all as provided in more detail in the attached Final Arbitration Award. Arbitrator. The following person was duly selected or appointed as arbitrator (name of each arbitrator): Frank Maas Arbitration hearing. The arbitration hearing was conducted as follows (complete both of the following) : a. Date (each date of arbitration) : October 29, 2018 b. Location (city and state where arbitration was conducted): New York City, New York Arbitration award. a Date of award. The arbitration award was made on (date) : November 21, 2018 b. Terms of award. The arbitration award (check one or more of the following): (1) [) requires CD petitioner (] respondent to pay the other party this amount: $ 200,000.00 (2) () requires neither party to pay the other anything. (3) (L} is different as to different petitioners and respondents. (4) (2) provides (specify other terms or check item 8(c) and attach a copy of the award): In addition, Respondent is also required to pay expenses and costs of $6,786.80, and interest on the $200,000.00 at the rate of 9%, beginning February 5, 2018. ©. [X) Attachment of Award. A copy of the award is submitted as Attachment 8(c). Service of award. a. The signed award or an accompanying document indicates that the award was served on petitioner on (date) » 11/21/18 b. (2) Petitioner alleges that a signed copy of the award was actually served on (date) : ADR-106 [New January 4, 2004] PETITION TO CONFIRM, CORRECT, OR VACATE Page 2 of 3 Cee ceb.com | Essential #iForms- CONTRACTUAL ARBITRATION AWARD (Alternative Dispute Resolution) Gemini Trust Company, LLC PETITIONER: GEMINI TRUST COMPANY, LLC CASE NUMBER: 19CECG00675 RESPONDENT: MATTHEW PETER CASTIGLIONE 10. Petitioner requests that the court (check aif that apply) : a [2] Confirm the award, and enter judgment according to it. b. (L) Correct the award and enter judgment according to the corrected award, as follows: (1) The award should be corrected because (check aif that apply) : (a) oO the amount of the award was not calculated correctly, or a person, thing, or property was not described correctly. (b) (C) the arbitrator exceeded his or her authority. (c) (CD the award is imperfect as a matter of form. (2) The facts supporting the grounds for correcting the award alleged in item 10b(1) are as follows (if additional space is required, check here (Land submit facts on an attachment labeled 10b(2)): (3) The award should be corrected as follows (if additional space is required, check here [_] and describe requested correction on an attachinent labeled 10b(3)): c. () Vacate (cancel) the award. 1) The award should be vacated because (check ail that apply) : (a) (C) the award was obtained by corruption, fraud, or other unfair means. {b) C) an arbitrator was corrupt. {c) CY the misconduct of a neutral arbitrator substantially prejudiced petitioner's rights. (d) (CC) the arbitrator exceeded his or her authority, and the award cannot be fairly corrected. (e) (2) the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute. () (2) an arbitrator failed to disclose within the time for disclosure a ground for disqualification of which the arbitrator was then aware. (9) (CC) an arbitrator should have disqualified himself or herself after petitioner made a demand to do so. (2) The facts supporting the grounds for vacating the award alleged in item 10c(1) are as follows (if additional space is required, check here (_] and submit facts on an attachment labeled 10c(2)): (3) Petitioner C2] does (} does not request a new arbitration hearing. [&] Award petitioner interest from (date) : November 21, 2018 (i) () atthe statutory rate. @) EK] atrateof _% 9 per year. (E] Award petitioner costs of suit: (1) (2) in the amount of: $ 6,786.60 @) [K] according to proof. C) Award petitioner attorney fees incurred in this action (check only if attormey fees are recoverable in this action according to statute or the parties’ agreement): (1) CL] in the amount of: $ (2) () according to proof. [) Award petitioner the following other relief (describe relief requested; if additional space is required, check here oO and describe relief on an attachment labeled 10g): aK 11. Pages and attachments. Number of pages attached: Date: March (L, 2019 Darryl. Horowitt (TYPE OR PRINT NAME} > T(SIENATURE OF PETITIONER OR ATTORNEY) ADR-106 [New January 1, 2004) PETITION TO CONFIRM, CORRECT, OR VACATE Page 3 of 3 CEB | Essential CONTRACTUAL ARBITRATION AWARD cabcom | Forms” (Alternative Dispute Resolution) Gemini Trust Company, LLC ATTACHMENT 4(b) CHANGE OF CONTROL in the event that we are acquired by or merged with a third-party entity, we reserve the right, in any of these clrcurnstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or othor change of control. SURVIVAL Ail provisions of this User Agreemant which by their natura extend beyond the expiration or termination of this User Agreement, Including, without {imitation, sections pertaining to suspension or termination, debts owed, general use of Gemini, disputes with us, and general provisions, shall survive the termination of expiration of this User Agreement. HEADINGS Section headings in this Usar Agraarment are for conveniance only, and do not govern the meaning ot interpretation of any provision of this User Agreement. ENGLISH LANGUAGE CONTROLS Notwithstanding any ather provision of this User Agreament, any translation of this User Agreement Is provided for your convenience. The meanings of terms, conditions, and representations herein are subject to thelr definitions and interpretations in the English language. WRITTEN NOTICE If we send an emali to the emall address on record for your User Account, you acknowledge and agree that this constliutes ‘wrltten notice’ from us to you. If you email sipportdgemtnt.com, this constitutes ‘written notice’ from you to us. For ail notlces made by emall, the date of recaipt is cansidered to be the date of transmission, NGN-WAIVER OF RIGHTS This Usey Agreement shai! not be construed to waive rights that cannot be walved under Applicable Laws and Regulations, Including applicable stata money transmission laws in the state where you are located. In addition, our failure to insist upon your strict compliance with any term or provision of this User Agreement shail not be construed as a walvar for you to not comply with such term or provision. GOVERNING LAW This User Agreement, your use of Gemint, your rights and obligations, and all actions contemplated by, arising out of ar related to this User Agreement shali be governad by the laws of the State of New York, as if this User Agreement Is a contract wholly entered into and wholly performed within the State of New York, YOU AGREE THAT ALL ORDERS, TRADES, DEPOSITS, WITHDRAWALS, OR SALES ON GEMINI AND CONTEMPLATED ACCORDING TO THE TERMS OF THIS USER AGREEMENT SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF NEW YORK AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TG ITS CONFLICTS OF LAWS PROVISIONS. DISPUTE RESOLUTION You acknowledge and agree that any controversy, clain, or dispute arising out of or relating to this User Agreement or the breach thereof shall be settied sotely and exclusively by binding arbttration held in New York, New York, administered by JAMS and conducted In English, rather than in court. You expressly agree that any dispute about the scape of this User Agreement to arbitrate and/or the arbitrabillty of any particular dispute shall be resolved In arbitration In accordance with this section. Jn the avent that you threaten to iitigate a dispute In court, we may Institute erbltration to enjoin you from filing a complaint or petition In court; provided, however, that you or we may, without inconsistency with this arbitration provision, apply to any court for » praliminary remedy (1.e., equitable or injunctive relief) or to seek enforcement of the arbitral award, You expressly agree that an arbltrator may issue all appropriate declaratory and Injunctive relief lecessary to ensure the arbitration of disputes, Any such arbitration shall be conducted in accordance with the then prevailing JAMS Streamlined Arbitration Rules & Procedures, with the following exceptions to such rulas if in conflict: One arbitrator shall be chosen by JAMS; Any arbitration must be commenced within one (1) year after the claim or cause of action arises; Each party to the arbitration will pay an equal shara of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and Arbitration may proceed In the absence of any party if written notice (pursuant to the JAMS’ rules and regulations) of the proceedings has been given to such party. You agree to bear your own attorney's fees, costs, and expenses. You agree to abiele by all decisions and awards rendered In such proceedings. Such declslons and awards rendared by the arbitrator shali be finat and conclusive, All such controversies, claims, or disputes shall be settled in this manner In lieu of any action at law or equity; provided, that, nothing in this subsection shail be construed as precluding us from bringing an action for injunctive or equitable relief. IF FOR ANY REASON THIS 22 ARBITRATION CLAUSE BECOMES NOT APPLICABLE OR IF YOU OR WE SEEK INJUNCTIVE OR EQUITABLE RELIEF THEN YOU AND WE: © TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL 8Y JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS USER AGREEMENT OR ANY OTHER MATTER INVOLVING US HERETO, AND » SUBMITTO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL OR STATE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK AND YOU AGREE NOT TO INSTITUTE ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT IN ANY OTHER JURISDICTION. You irevocably and unconditionally agree to walve any objection that you may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this User Agreement in the federal or state courts focated in the State of New York. You agree to arbitrate solely on an individual basis, and acknowledge and agree that this User Agreement doss not parmit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral triounal may not consoliate more than one User's clalms and may not otherwise preside over any form of a representative or class proceeding. In tha event the prohibition on class arbitration Is deemed invalid or unenforceable, then you acknowledge and agree that the remaining portions of these arbitration provisions in this User Agreement will remain in full force and effect. You agree that this section of this User Agreement has been included to rapidly and inexpensively resalve any disputes with respect to the matters described herein, and that this section shall be grounds for dismissal of any court action commenced by you with respect toa dispute arising out of such matters, A printed version of this User Agreement shai} be admissible in judicial or administrative proceedings. QUESTIONS, FEEDBACK, AND COMPLAINTS Ifyou have any questions, would like to provide feedback, or would like more information about Gernini, please feel free to contact us at SuppOF er com. Hf you would like to lodge a complaint, please contact our Customer Support Team using one of the foliawing methods: « Emall support@-ceraini.com using the email address on record for your User Account; + Write to Customer Support at Gemini Trust Company, LLC, 600 Third Avenue, 2nd Floor, New York, NY 10016; or + Call Customer Support at #4 (866) 240-51.13 (toll-free in the USA), NEW YORK USER COMPLAINTS If you are jocated in the State of New York and have a complaint, please first contact Gemini Support at one of the three (8) methods indicated above. You may also direct your complaint to the attention of; New York State Department of Financial Services, One State Street, New York, NY 10004-1511; +2 (600) 342-3736, Ploase visit www.dis.ny.gev for additional information. OREGON USER SERVICES AND USER COMPLAINTS Any regulated serVices provided to users located in the State of Oregon shall be characterized as money transmission and not as trust services performed on behalf of our users In the State of Oregon. Wa maintain a money transmission license in the State of Oregon and, therefore, are subject to the requirements of the Oregon money transmission statutes. If you are a user located in the State of Oregon, we are not praviding any trust services ta you or to any other user in the State of Oregon In the course of you visiting, accessing, or using Gernini hereunder, Any reference in the User Agreement to fiduciary services provided by us on your behalf shall refer, in the case of users: In the State of Oreson, to our fiduclary obligations as a licansed money transmitter in Oregon, If you are lacated in the State of Oregon and have a complaint, please first contact Gemin! Support at one of tha three (3) methods indicatad above, If you still have an unresolved compiaint regarding our money transmission activity, you may aiso direct your complaint to the attention of: Oregon Division of Financial Regulation, 2.0, Box 14480, Salem, OR 97309-0405; +1 (866) 814-9710 (toll-free In the USA), Please vistt http://dfr.oragon.gov/ for additional information. TEXAS USER COMPLAINTS tf you are located in the State of Texas and have a complaint, please first contact Gemini Support at one of the three (3) methods indicated above. IF you still have an unrescived complaint regarding our money transmission activity, you may also direct your complaint to the attention oft Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705; +4 (877) 276-5554 (toll-free In the USA), Biease visit www.dob.texas.gov for additional information, 23 ATTACHMENT 8(c) JAMS NO, 1425026244 GEMIN] TRUST COMPANY LLC, Claimant, -against- FINAL ARBITRATION AWARD MATTHEW PETER CASTIGLIONE, Respondent. The Undersigned Arbitrator, having conducted an evidentiary hearing on October 29, 2018, in this dispute between Claimant Gemini Trust Company LLC (“Gemini”) and Respondent Matthew Peter Castiglione Castiglione”), hereby issues the following Final Arbitration Award. I Introduction and Procedural Histor Gemini is a digital asset exchange and custodian — i.e., a place to trade and store Bitcoin, Ethereum, and other cryptocurrencies. On or about November 16, 2017, Castiglione opened an account with Gemini. He then engaged in various transactions until January 2018, at which time his trading rights were suspended. In this proceeding, Gemini seeks (0 recover from Castiglione $200,000 that it says was mistakenly transferred into his account. Gemini also seeks to recover from Castiglione his half of the cost of this arbitration, Gemini commenced the arbitration by filing its Demand and Statement of Claim on or about April 5, 2018, Thereatter, JAMS designated me to serve as the sole arbitrator, Castiglione has sever served an answer, He has instead steadfastly maintained that Gemini terminated his account without prior notice, thereby precluding Gemini from relying on the arbitratian agreement set forth in Gemini’s online User Agreement. As an alternative, Castiglione offered to participate in a conference call which he would organize, ostensibly so that he could explain why this arbitration could not proceed, In vatious cormmunications, Castiglione also suggested that JAMS was violating the Fair Debt Collection Practices Act by attempting to proceed with the arbitration, Other letters suggested that conducting the arbitration would constitute a violation of criminal law, On July 30, 2018, the Arbitrator issued “Scheduling Order No. 1," which explained that the online User Agreeinent (a) called for “any dispute concerning the scope of [the]... Agreement to arbitrate and/or the arbitrability of any particular dispute” to be “resolved in arbitration;" (b) provided that the arbitration would be “conducted in accordance with the then ‘prevailing JAMS Streamlined Arbitration Rules & Procedures,” except that the sole arbitrator would be “chosen by JAMS,” and (c) required each party to pay “an equal shave of the expenses and fees of the atbitrator.”! Scheduling Order No.1 further directed the parties to exchange by August 31, 2038, all non-privileged documents and information (including electronically stored information) upon which they intended to rely and the names of all persons knowledgeable about the dispute, By letter dated August 31, 2018, Gemini’s counsel confirmed that Gemini had produced its documents and that Joshua Rawlins. Managing Director of Gemini, was a person knowledgeable about the dispute. There is no indication that Castiglione sent any documents or information to Gemini tn response to Scheduling Order No. 1. Scheduling Order No. 2, dated September 5, 2018, set October 29, 2018, as the hearing date. The Order further indicated that the hearing wouid proceed on that date absent a court-issued stay, Finally, the Order directed that any pre-hearing memoranda be submitted by October 22, 2018, Subsequently, on Friday, October 26, 2018, Castiglione sent me two emails. In the first email, Castiglione suggested that three issues needed to be considered: “Under what circumstances could a unilaterally cancelled contract be reinstated and enforced later without consent of the corresponding party?” “Under what circumstances could a controversy be settled by Arbitration when only one party is present and what could make an Award in that circumstance valid?” “Does operating an Arbitration by force or coercion or intimidation or the taking advantage ofa lay person by professionals with no valid contract in evidence with the claimant nor Arbitrator indicate a Badge of Slavery?” In his second email, Castiglione indicated that to protect his rights “and to have verified first hand knowledge of [the] meeting and its operation,” he wanted “Charles C. Miller ae 1 Despite due demand therefor, Castiglione has never paid his halfof the fees and expenses aysociated with this arbitration, Instead, Gemini has paid all of those fees and expenses, 22 ... authorized fo monitor {the] meeting via phone connection,” Castiglione also provided an email address and telephone number for Miller. As Castiglione explained, he was inserting Miller into the process for two reasons: “First, so no interpretation af waiver into your process of contractual obligation could ever be inferred.” Second, to “gather[] evidence of either proper actions or Jess than ptoper actions,” After the second email arrived at 5:01 p.m, the Arbitrator solicited via email the views of Gemini’s counsel, who responded over the weekend that Gemini objected fo the participation of a monitor, but would reconsider if Castiglione could “articulate the basis for his request and it is reasonable.” Although Castiglione was copied on both the Atbitrator’s email and counsel's response, he did not communicate further with this Tribunal. Ratle 9(a) of the JAMS Streamlined Arbitration Rules and Procedures provides that any party may be represented “by counsel or any other person” of the party’s choice, and that each party shall give prompt written notice to JAMS and the other parties of its representative's contact information, Accordingly, although it was far from clear that Miller was being designated as a “representative” of Castiglione, the Arbitrator attempted to telephone him several times at the outset of the arbitration hearing on October 29, Each time, Miller failed to answer and his voice mail indicated that his mailbox was full. The Arbitrator also sent Miller an email message providing a. telephone number so that he could dial directly into the hearing room, Miller neither telephoned nor emailed the Arbitrator during the course of the hearing. Following the hearing, at 5:33 p.m. ET. on the evening of October 29, Mr, Miller sent the Arbitrator an email in which he said he could not participate on the morning ofthe My hearing “due to personal circumstance,” He also indicated that when he finally telephoned at PM pacific tine,” the number he had been provided was a “non working number.” ‘This is scarcely surprising since the hearing had concluded by then, In his email, Mr. Miller repeated many of Castiglione’s prior contentions. For example, he complained that JAMS and the Arbitrator were unlawfully “acting as debt collectors across state lines.” Mr. Miller also said that he would be “forwarding [a] formal request for certified records of [the] proceedings.” No such request was ever received. Because Castiglione chose not to participate in the arbitral hearing Managing Director Rawlins was the sole witness to testify. u, Facts Having reviewed Rawlins’ testimony and Gemini’s exhibits, the Arbitrator makes the factual findings set forth below. To the extent there is any discrepancy between these findings and any exhibits, testimony, or contention of a party, that is the result of determinations regarding credibility, relevance, burden of proof, and the weighing of the evidence. a2 A court reporter was present during the hearing, Mr, Miller and Castiglione could presumably obtain a copy of the hearing transcript by purchasing it from the court reporter, Castiglione opened his Gemini account on or about November 16, 2017. At the time that he did so, Castiglione necessarily completed a screen which required him to acknowledge thal he agreed to the Gemini User Agreement (which was hyperlinked for his convenience). The User Agreement, in tur, provides that Castiglione’s rights and obligations shall be governed by the laws of the State of New York, as if this User Agreement is a contract wholly entered into and wholly performed within the State of New York.” Additionally, the User Agreement provides that “all orders, trades, deposits, withdrawals, or sales on Gemini and contemplated according to the lerms of this User Agreement shall be deemed to have occurred in the State of New York .... (Block capitalization omitted.) The User Agreement further provides that "any controversy, claim, or dispute arising out of or relating to this User Agreement or the breach thereof shall be settled solely and exclusively by binding arbitration held in New York, New York,” before a single arbitrator chosen by JAMS. Pursuant to the User Agreement, Castiglione further agreed to pay one half of the expenses and fees associated with that arbitration. After opening his account, Castiglione engaged or attempted to engage in several transactions that give rise to this proceeding. Specifically, on or about December 1! and [2, 2017, Castiglione twice altempted to wire transfer $200,000 into his Gemini accuunt, On both occasions, the wire transfer into his account was rejected because the transferor account was not the account associated with his Gemini account. Although Castiglione modified his account information after the first failed transfer, this did not occur until after the second $200,000 had been returned to Castiglione’s transferor account. The procedure at Gemini for incoming wire transfers was that they would be reccived in an omnibus Gemini account and then transferred into a customer account if the source of the funds was recognized, “Due to a “glitch” in the Gemini system, Gemini credited Castiglione’s trading account with the second $200,000 transfer even though thase funds had already been returned to his transferor account, Gemini did not notice its error until January 2018, when it was reconciling ifs financial records for the prior calendar year. In the meantime, however, Castiglione had already withdrawn the $200.000 from his account through Bitcoln transactions, After discovering ifs error, Gemini emailed Castiglione numerous times to request the return of the funds improperly credited to — and removed from — his Gemini account, Tellingly, on the one avcasion when Castiglione responded to a Gemini email, he did not deny that he had received funds in error, Instead, on February 5, 2018, he responded: “Thank you for reaching out to me about this error that Gemini made on my account, J do not have the funds that you are requesting and need more time.” Since then, despite the commencement of this arbitration, Castiglione has never returned the $200,000 that Gemini mistakenly credited to his account, Finally, at or about the time that it learned of the misappropriation of its $200,000, Gemini suspended Castiglione’s account, The Gemini User Agreement also affords Gemini the right to terminate a user’s account at any time and for any reason, There is, however, no evidence that Gemini exercised this option. Indeed, Mr. Rawlins testified that Gemini still maintains an account for Castiglione. it. Discussio! A. Axbitrabili As set forth above. by opening a Gemini account, Castiglione agreed to the terms of the Gemini User Agreement, He therefore agreed to arbitrate this dispute, In an effort to avoid this conclusion, Castiglione argues that his agreement to arbitrate was vitiated by Gemini’s termination of his account. His legal theory is dubious. See, e.g, Inre Tarpon Cove, Lid, 482 N.Y.S.2d 1, 2 (Ist Dep’t 1984) (“Absent a mutual agreement to nullify an agreement completely, an arbitration clause is enforceable, notwithstanding a subsequent termination of the agreement or a general release of claims.”); Application of Leonard, 231 N.Y.S.2d 198, 200 (Sup. Ct, N.Y. County 1962) (“The efficacy of the arbitration provision in the contract is not exhausted because the contract has terminated."), In any event, even if Castiglione could have avoided arbitration based on the termination of his User Agreement, the evidence here plainly shows that no such termination occurred, At most. Castiglione’s account was suspended, This does not entitle him to repudiate his clear agreement to arbitrate’ any dispates “arising out of or relating (o [Jhis User Agreement or the breach thereof,” B Liabilit In its demand, Gemini seeks to recover the $200,000 mistakenly transferred into Castiglione’s account on four theories: (A) money had and reccived; (B) unjust enrichment; (C) conversion; and (D) breach of contract, One need not be a legal scholar, however, to understand the correct result here, Castiglione twice wired $200,000 to Gemini, which twice returned that sum. Accordingly, the additional $200,000 in Castiglione’s account was Gemini's property, and did not belong to him. Under New York law, a [“c]onversion occurs when a defendant exercises unauthorized dominion over persona] property in interference with a plaintiff's Jegal title or : superior right of possession.” LoPresti vy. Terwilliger, 126 F.3d 34, 41 (2d Cir, 1997). Moreover, even if a person originally received the property lawfully, an unlawful conversion takes place when “the owner makes a demand for the return of the property and the person in possession of the property refuses to return it.” In re Estate of King, 759 N.Y.8.2d 895, 896 (2d Dep't 2003). Here, due to an administrative error, Gemini’s funds were transferred into CastigHone’s account, Thereafter, when Castiglione refused to return those funds, he converted Gemini’s property, Gemini is therefore entitled to an award in the amount of $200,000 for the unlawful conversion of its property.’ In addition, pursuant to the User Agreement, Castiglione is liable for one-half the cost of this arbitration. Gemini either has advanced or will advance all those funds because Castiglione refused to honor this obligation, | am advised that the JAMS fees total $13,573.60. Gemini is therefore entitled to an award for JAMS fees and expenses in the amount of $6,786.80 ($13,573.60 + 2). Finally, in its demand, Gemini seeks to recover its legal fees. The User Agreement provides that Castiglione must “bear [his] own attoracy’s foes, costs, and expenses,” which suggests that each side should bear its own legal fees and expenses other than the cos(s associated with arbitrating at JAMS. In any event, at the hearing. Gemini failed to offer any proof regarding the legal fees it incurred, For that reason, Gemini’s request to recover its legal fees must be denied, Under New York law, the successful claimant in a conversion action ts entitled to prejudgment interest at the statutory rate of nine percent per annum, See Eighteen Holding Corp. vy. Drizen, 70] N.Y.S,2d 427, 428 (1st Dep't 2000) (awarding prejudgment interest at that rate in an action asserting “causes for money had and received, unjust enrichment and conversion.”) By February 5, 2018, Castiglione clearly communicated that he was not returning Gemini's $200,000, Gemini is therefore entitled to prejudgment interest from that date, 3 In an email to the Arbitrator dated September 28, 2018, Castiglione asked that the Tribunal address a number of tssues, including “the law and facts requiring [him] lo refuso a gift" Suffice it to say, there is nota scintilla of evidence thal Genini gave Castiglione a $200,000 gift, Even if that were a possible interpretation of the avents here, to establish that Gemini gave him a gift, Castiglione would have to establish: (n) Gornint’s intent to give hima gift, (b) "the delivery of the property pursuant to this intent,” and (c) his “acceptance of the property.” Midland Ins. Co. v, Friedgood, 577 PF, Supp. (407, [412 (S.D.N.Y, 1984), Here, al hest, Castiglione has satisfied the third required element, There consequently is no basis for hts claim that he is entitled to keep Gemini's $200.000 “gift.” IV, Conclusion For the foregoing reasons, Gemini is awarded the principal sum of $200,000, plus fees and expenses in the amount of $6,786.80, and prejudgment interest on the sum of $200,000 at the rate of nine percent per annum from February 5, 2018, The request for attomey’s fees is denied. SO ORDERED. Lille Frank Maas November 21, 2018 Arbitrator STATE OF NEW YORK. ) 83.1 COUNTY OF NEW YORK ) 1, Frank Maas, do hereby affirm upon my oath as Arbitrator that | am the individual described in and who executed this instrument, which is my Fina} A/bitration Award — Lal. Frank Maas November21, 2018 Arbitrator SERVICE LIST Gemini Trust Company LLC vs, Castiglione, Matthew Peter Hear Type: Arbitration Case Name: Case Type: Business/Comnmercial Reference #: 1425026244 Panelist: Maas, Frank , David A. Berger Allegaert, Berger & Vogel David A. Berger Claimant 411 Broadway Phone: 212-571-0550 20th Fax: 212-571-0555 New York, NY 10006 dberger@abv.com Party Represented: Gemini Trust Company, LLC Matthe eter Castigfi e Matthew Peter Castiglione Respondent 2608 Norwich Ave. Fax: Clovis, CA 93611 mattcastigiione@hotmail.com Party Represented: Matthew Peter Castiglione Davi. Ss iman Allegaert, Berger & Vogel David A, Shaiman Claimant 411 Broadway Phone: 212-571-0550 20th Fax: 212-571-0655 New York, NY 10008 dshaiman@abv.com Party Represented: Gemini Trust Company, LLC 2A Page | oft PROOF OF SERVICE BY EMAIL & U.S. MAIL _ Ret Gernini Trust Company LLC vs. Castiglione, Matthew Peter Reference No, 1425026244 I, Patrick Mullarkey, not a party to the within action, hereby declare that on November 21, 2018, I served the attached Final Arbitration Award on the parties in the within action by Email and by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at New York, NEW YORK, addressed as follows: David A. Berger Esq. Mr. Matthew Peter Castiglione David A. Shaiman Esq. 2608 Norwich Ave. Allegaert, Berger & Vogel Clovis, CA 93611 111 Broadway mattcastiglione@hotmail.com 20th Parties Represented: New York, NY 10006 Matthew Peter Castiglione Phone: 212-571-0550 dberger@aby.com dshaiman@abv.com Parties Represented: Gemini Trust Company, LLC I declare under penalty of perjury the foregoing to be true and correct, Executed at New York, NEW YORK ont Rojeny er 21, 2018. ae “4 Ratrick Shatter ey PMullarkey@jarrisadr.com.