With regard to the instant case, "it is well-established that the doctrine of exhaustion of administrative remedies applies with equal force to the disciplinary proceedings of NASD." Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 902 (S.D.N Y 1980) (Motley, J.) (citing First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 696 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980)). See also McLaughlin, Piven, Vogel, Inc. v. NASD, 733 F. Supp. 694, 696-97 (S.D.N.Y. 1980); Westheimer v. Commodity Exchange, Inc., 651 F. Supp. 364, 367 (S.D.N.Y. 1987).

In the disciplinary context, it is not uncommon for plaintiffs to attempt to avoid application of the exhaustion doctrine by alleging that an SRO violated state law not only with respect to the result of a disciplinary proceeding but also with regards to actions taken before, and in conjunction with, a proceeding. See, e.g.,Swirsky, 124 F.3d at 61 n.l (alleging tortious interference with contract and advantageous relations, fraud, defamation, and other state law violations pursuant to the settlement of an administrative proceeding); First Jersey, 605 F.2d at 693 (alleging interference with contractual and business relations prior to the initiation of a disciplinary hearing); Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 900, 904 (S.D.N.Y. 1980) (alleging that conspiracy, tortious interference, and fraud pervaded an investigative audit and communications preceding a disciplinary proceeding). Such attempts to avoid exhaustion are invariably unsuccessful.

No one is entitled to judicial relief for a supposed or threatened injury until a prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938), cited in Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897 (S.D.N Y 1980). Requiring litigants to exhaust their administrative remedies insures that there is no premature interruption of the administrative process and that the administrative agency involved has an opportunity to correct its own errors. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194, cited in Bruan, 502 F. Supp. at 905.

The exhaustion requirement has also been applied to review of disciplinary actions by self-regulatory organizations such as national securities exchanges. See e.g., First Jersey Sec., Inc. v. Bergen, 605 F.2d 690, 696 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980); Merrill Lynch, Pierce, Fenner Smith, Inc. v. National Ass'n of Sec. Dealers, Inc., 616 F.2d 1363, 1370-71 (5th Cir. 1980); Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 905 (S.D.N.Y. 1980) (on reconsideration). We agree that, given the "comprehensive review procedure" established by the Exchange Act, First Jersey, 605 F.2d at 696, Congress intended that the doctrine of exhaustion of administrative remedies, in appropriate circumstances, apply to challenges to the disciplinary proceedings of the national securities exchanges.

Austin relies on two cases that granted only qualified immunity to disciplinary officers in a self-regulatory system. Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897 (S.D.N.Y. 1980) (NASD); and Trama, supra (NYSE). Both cases, however, expressly reserved the question of whether these officers could receive absolute immunity. Trama stated, though, at ¶ 94,920, "the rationale behind the grant of absolute immunity to certain adjudicatory agencies applies forcefully to this case and strengthens today's decision to dismiss plaintiffs' complaint."

Two of our sister circuits have for similar reasons concluded that a person's failure to exhaust remedies made available by an SRO — in those cases, the National Association of Securities Dealers — bars judicial review of the SRO's disciplinary action. See Merrill Lynch, Pierce, Fenner Smith, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 616 F.2d 1363, 1370 (5th Cir. 1980); First Jersey Sec., Inc. v. Bergen, 605 F.2d 690, 696 (3d Cir. 1979) (citing 2 Louis Loss, Securities Regulation, 1363 n. 73 (2d ed. 1961)), cert. denied, 444 U.S. 1074 (1980); see also Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 905 (S.D.N.Y. 1980). We said, in Barbara, "[G]iven the `comprehensive review procedure' established by the Exchange Act, Congress intended that the doctrine of exhaustion of administrative remedies, in appropriate circumstances, apply to challenges to the disciplinary proceedings of the national securities exchanges."

Standard argues that the SEC's involvement in this rulemaking, particularly its failure to explicitly request comment as to the proxy solicitation, demonstrates that the SEC does not deem the proxy solicitation to be part of the proceedings before it. This argument merely echoes Standard's previous arguments that the SEC is somehow impotent, disinterested, or biased with respect to the procedures incident to the rulemaking here. However, the Court has already concluded that Standard may demonstrate these inadequacies either by attempting to exhaust its administrative remedies or by "point[ing] to prior demonstrated inadequacies."Standard II, 2007 WL 1296712, at *5 (quoting Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 908 (S.D.N.Y. 1980)). Therefore, absent any indication that the SEC has ignored Standard's claims, or refused to consider analogous claims, Standard's bald assertions that the SEC does not deem the underlying claims to be part of the proceedings before it are without merit.

The "complaint's clear reliance upon federal law at the time of removal cannot be contradicted by the plaintiff's post-removal representations." Eastern States Health Welfare Fund v. Philip Morris, Inc., 11 F. Supp.2d 384, 393 n. 5 (S.D.N.Y. 1998) (citing Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 901 (S.D.N.Y. 1980));see also Bennet v. Beiersdorf, Inc., 889 F. Supp. 46, 48 (D. Conn. 1995) ("A plaintiff whose case has been removed to federal court cannot defeat federal jurisdiction by amending her complaint to excise the federal claims . . . ."). Defendants' removal is supported on the face of the Complaint. Whether in fact the Complaint was pled correctly is another matter and must wait for another day and another motion.

The Court therefore interprets the complaint to assert only a claim for equitable subrogation under New York law. The Companies also rely on Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897, 901 (S.D.N.Y. 1980), in which Judge Motley held that the plaintiff's complaint had clearly referenced federal securities law and was thus removable, notwithstanding plaintiff's post-removal assertion that it never intended to press such a claim. Again, this case is inapposite, standing only for the proposition that the complaint's clear reliance upon federal law at the time of removal cannot be contradicted by the plaintiff's post-removal representations.

Oral argument was held on March 13, 1995. As the court may consider material outside the pleadings in ruling on a motion to dismiss, including affidavits, depositions, and other documentary proof, see Bruan, Gordon Co. v. Hellmers, 502 F. Supp. 897 (S.D.N.Y. 1980), and substantial discovery has taken place with respect to the jurisdictional issues, but Plaintiffs failed to respond to Defendants' Statements of Undisputed Facts, this court will not convert these motions to dismiss to motions for summary judgment. See, e.g., Timberlane Lumber Co. v. Bank of America Nat. Trust Savings Assoc., 749 F.2d 1378, 1381-82 1381 n. 1 (9th Cir. 1984) (in case alleging illegal antitrust behavior, trial court properly analyzed defendant's motion under Rule 12(b)(1) without affording summary judgment treatment, notwithstanding plaintiff's contention that the question of jurisdiction is so closely intertwined with the merits that summary judgment was appropriate), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).