Pennsylvania Record

Sunday, September 22, 2019

Third Circuit: Attorney didn't mislead Asian man into racial discrimination settlement

By Nicholas Malfitano | Dec 31, 2015

Merrill Lynch

PHILADELPHIA – On Dec. 1, the U.S. Court of Appeals for the Third Circuit affirmed a trial court ruling to enforce a settlement between a former Asian employee of Merrill Lynch Pierce Fenner & Smith and the company in a civil rights discrimination case.

Judges Thomas L. Ambro, Joseph A. Greenaway Jr. and Dolores Sloviter heard the case brought by Raymond Zong against Merrill Lynch, ruling that Zong’s separate and outstanding Equal Employment Opportunity Commission claim was barred by the previous settlement reached between the parties.

Zong commenced his suit in 2013 by filing a racial discrimination and retaliation complaint against his former employer, Merrill Lynch, pursuant to Title VII of the Civil Rights Act of 1964. After an initial settlement attempt fell through in May 2014, a new settlement was reached between Zong and Merrill Lynch in June 2014, in which Zong received an increased payment sum. Both parties orally agreed to the settlement.

After the final settlement agreement was put in writing and reviewed by Zong’s attorney, but before Zong signed it, the district court received an email from Zong alleging his attorney “cheated” him and “misinformed” both Zong and the district court about the status of a separate claim Zong filed with the Equal Employment Opportunity Commission.

Zong then attempted to enlist the district court’s help to invalidate the proposed settlement.

Subsequent to hearing arguments on the matter, the U.S. District Court for the Eastern District of Pennsylvania decided the oral agreement revolving around the final June 2014 settlement was both valid and enforceable. Therefore, trial court granted Merrill Lynch’s motion to enforce the settlement and dismissed Zong’s case in its entirety. Zong then appealed to the Third Circuit.

However, the Third Circuit examined the records and transcripts associated with the June 2014 settlement and declared Zong had full knowledge and acceptance of the agreement and its terms, and was not misled by his then-counsel Andrew Cotlar. It was decided Zong did in fact agree to the settlement terms, including the stipulation to accept an undisclosed sum in exchange for releasing Merrill Lynch from liability on all pending and future claims.

“It was only after he received the written settlement documents and the clarification from his attorney regarding the status of his other EEOC claim that Zong sought to cancel the agreement reached by the parties,” the Third Circuit said. “Zong’s argument to void the settlement relies on misconstrued facts.”

The Third Circuit found the crux of Zong’s appeal to be without merit - specifically, his two assertions that he received fraudulent advice from his attorney and that he exercised his legal right, under the settlement terms, to reject the proposed settlement within a prescribed 21 day-time limit.

But since Zong never actually executed the settlement, the Third Circuit found he could not then bind himself by its proposed terms.

The plaintiff has no legal representation, according to court records.

The defendant is represented by Andrew Michael Delucia, Karen P. Gaster and Michael Avila of Rubin Fortunato & Harbison, in Paoli.

U.S. Court of Appeals for the Third Circuit case 14-4239

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-03256

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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