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New reinsurance-related and arbitration developments from Carlton Fields

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John Pitblado

Ninth Circuit Enforces Arbitral Immunity Following FINRA Arbitration

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Plaintiff Syed Nazim Ali appealed a Northern District of California judgment dismissing Plaintiffs’ diversity action against FINRA alleging state law claims arising from an arbitration proceeding. The Ninth Circuit affirmed the District Court’s decision to dismiss Plaintiffs’ claims on the basis of arbitral immunity “because the claims alleged effectively seek to challenge the decisional acts of an arbitrator or an arbitration panel” contrary to California precedent.

The District Court had previously confirmed the FINRA arbitration award, as previously reported here.

Global Ebusiness Services, Inc. et al. v. FINRA, No. 18-15716 (USCA 9th Cir. Oct. 29, 2018)

This post written by Nora A. Valenza-Frost.

See our disclaimer.

South Carolina Federal Court Denies Motion to Stay and Orders Insurer to Produce Documents

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The background of this case is as follows. In 2014, ContraVest Inc., ContraVest Construction Co., and Plantation Point Horizontal Property Regime Owners Association Inc. (collectively, “Plaintiffs”) brought suit in South Carolina state court against Mt. Hawley Insurance Company (“Mt. Hawley”) for declaratory judgment, bad faith, breach of contract and unjust enrichment based on the insurer’s refusal to provide benefits allegedly owed under excess commercial liability insurance policies with respect to an allegedly defective construction project. The case was removed to South Carolina federal court. In March 2017, the South Carolina district court granted a motion to compel filed by Plaintiffs. In April 2018, Mt. Hawley moved to stay the case pending resolution of a mandamus petition to the Fourth Circuit and a motion to certify a question of attorney-client privilege waiver in bad faith insurance claims to the South Carolina Supreme Court. It also submitted to the court a privilege log and various documents for in camera review. The privilege log had four main categories of documents at issue: attorney-client privilege documents, work-product documents, reinsurance documents and reserves documents.

The South Carolina district court denied Mt. Hawley’s motion without prejudice and ordered that it produce all documents except those claiming attorney-client privilege in light of the mandamus petition. It declined to conduct an in camera review of the work-product documents and ordered production of those documents. The court also held that it would not consider whether an in camera review is necessary to determine if the reinsurance and reserves documents are relevant or privileged, and also ordered production of those documents. Mt. Hawley also took the position that it had not waived its objection regarding documents referencing mediation. However, the court noted that Mt. Hawley cited no South Carolina case law discussing a mediation privilege and the court noted that its own research did not reveal any such case law. It also noted that if Mt. Hawley meant to reference attorney-client privilege, “it does not appear that Mt. Hawley believes these documents to be attorney-client privileged as the privilege log does not identify them as such.” Thus, the court found that “[i]f Mt. Hawley means to reference general confidentiality rules about mediation, those rules are not applicable to the current issue” because “producing a document during discovery is not the same as introducing a document in a proceeding.” Thus, the court ordered that Mt. Hawley produce the mediation documents.

As for Mt. Hawley’s request to stay the case pending resolution of its petition for mandamus in the Fourth Circuit, the South Carolina district court noted that Mt. Hawley’s petition relates only to the attorney-client privilege issue, and that the Fourth Circuit already “stay[ed] any district court discovery that implicates the attorney-client issue pending further order of [the Fourth Circuit].” Thus, the court declined to stay the entire case “due to this discrete issue when there are other pending discovery issues unrelated to the attorney-client privilege issue,” and denied Mt. Hawley’s motion without prejudice.

ContraVest Inc., et al. v. Mt. Hawley Insurance Co., No.15-00304 (USDC D.S.C., Oct. 24, 2018).

This post written by Jeanne Kohler.

See our disclaimer.

Tenth Circuit Strikes Offending Arbitration Provision Clause in Au Pair Agreements

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Plaintiffs had entered into various au pair agreements which contained arbitration provisions, which defendants sought to enforce when a class action was filed. The District Court of Colorado denied the defendants’ motion to compel arbitration, finding the au pair agreements “were contracts of adhesion and procedurally unconscionable because the au pairs were relatively young at the time they signed the contracts, were foreigners, spoke English as a second language, and had no experience with contracts or contract law.”

The Circuit Court agreed that the arbitration provision was unconscionable, but reached “that conclusion for reasons more limited than those found by the district court.” The Court found the agreements were procedurally unconscionable “to a moderate degree,” as contracts of adhesion. As to substantive unconscionability, the Court analyzed three clauses: (1) allowing AuPairCar, Inc. to select unilaterally the arbitration provider has a high degree of substantive unconscionability; (2) a California forum selection clause was not unconscionable; and (3) bilateral fee shifting was not unconscionable. “Because the au pair agreements have moderate procedural unconscionability and significant substantive unconscionability due to the arbitration provider selection clause, the au pair agree is unconscionable and unenforceable as written.”

The Circuit Court ordered the District Court to sever the provision allowing AuPairCar, Inc. to unilaterally select the arbitration provider, as both California and federal law provide a default method for appointing an arbitrator, and, consistent with its opinion, to further compel the parties to arbitrate.

Beltran v. Interexchange, Inc., No. 17-1359 (USCA 10th Cir. Oct. 30, 2018)

This post written by Nora A. Valenza-Frost.

See our disclaimer.

The Third Circuit Affirms District Court’s Confirmation of Arbitration Award, Finding That the Panel Did Not Exceed its Powers or Manifestly Disregard the Law

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The complete procedural background of this “not precedential” case can be found here. In sum, this case stems from a 2007 lease agreement between Ross Dress for Less, Inc. (“Ross”) and VIWY, L.P. (“VIWY”) for Ross to be a tenant in VIWY’s shopping center. The lease included a provision which required VIWY to maintain a minimum amount of tenants in the shopping center, and allowed Ross to pay a reduced rent if the provision was not satisfied. In March 2011, Ross wrote to VIWY, claiming that the provision had not been met, it had overpaid its rent for two years and that VIWY must refund the excess rent payments, to which VIWY refused. In response, Ross paid a reduced rent from March 2011 until September 2011, at which time VIWY terminated the lease. In January 2012, Ross filed a lawsuit in Pennsylvania federal court against VIWY, alleging that VIWY breached the lease causing Ross to overpay rent (the “overpayment claim”). VIWY counter-claimed that Ross had improperly offset its rent from March 2011 to September 2011 (the “offset claim”), and moved to compel arbitration and dismiss the complaint. The Pennsylvania district court denied VIWY’s motion and stayed the offset claim, pending resolution of the overpayment claim. VIWY appealed to the Third Circuit, which vacated the order and remanded the matter to the Pennsylvania district court. The Third Circuit found that the terms of the lease required arbitration of the offset claim, but did not require arbitration of the overpayment claim. However, because the claims were “inextricably linked,” the Third Circuit held that arbitration of both claims was appropriate. On remand, the Pennsylvania district court stayed the litigation pending the completion of the arbitration. Thereafter, in March 2015, Ross demanded arbitration. VIWY raised a statute of limitations defense, arguing that because Ross had filed its demand more than four years after the alleged breach, his overpayment claim was untimely under Pennsylvania’s four-year statute of limitations. The Arbitration Panel rejected this argument, finding that Ross’s filing of its complaint had suspended the running of the limitations period, assuming the statute of limitations applied to arbitration proceedings (which the Panel noted was unsettled under Pennsylvania law). The Panel also concluded that VIWY breached the lease agreement, awarding Ross over $1.8 million. Ross then moved in the Pennsylvania district court to confirm the arbitration award, and VIWY cross-moved to vacate, arguing that the Panel exceeded its powers under the Federal Arbitration Act, or alternatively acted in manifest disregard of Pennsylvania law. The district court denied VIWY’s motion to vacate, and granted Ross’s motion to confirm. VIWY appealed to the Third Circuit.

First, in reviewing VIWY’s contention that the Panel exceeded its powers when it allegedly misapplied Pennsylvania’s statute of limitations, the Third Circuit noted that the Arbitration Panel assumed the statute of limitations applied to arbitration proceedings and analyzed whether tolling was warranted. Thus, the Third Circuit noted that Ross’s complaint asserting the overpayment claim — which was filed well within the four-year statute of limitations — tolled the limitations period. The Third Circuit also noted that, in any event, an erroneous ruling that Ross’s lawsuit tolled the statute of limitations does not amount to an excessive abuse of the Panel’s power. In its analysis, the Third Circuit also noted that VIWY previously took the position that an arbitrator should resolve Ross’s overpayment claim. Thus, according to the Third Circuit, resolution of Ross’s overpayment claim necessarily included determining how Pennsylvania law, and in particular Pennsylvania’s statute of limitations, affected the parties’ rights under the lease. Thus, the Court found that because the Panel’s interpretation “went against” VIWY does not now give VIWY the right “to rerun the matter in a court.” As to VIWY’s alternative argument that the arbitration award should be vacated because the Panel acted in manifest disregard of the law when it allegedly misapplied Pennsylvania’s statute of limitations, the Third Circuit noted that the Panel did not “willfully flout” Pennsylvania’s statute of limitations and its tolling jurisprudence. The Third Circuit held that because the answer to the tolling question was not obvious, it could not say that the Panel manifestly disregarded Pennsylvania’s law concerning the statute of limitations. Thus, the Third Circuit affirmed the Pennsylvania district court’s decision.

Ross Dress for Less Inc. v. VIWP, L.P., et al, No. 17-3145 (3rd Cir. Oct. 24, 2018).

This post written by Jeanne Kohler.

See our disclaimer.

Tenth Circuit Confirms Arbitration Award Against Non-Party Surety

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Sujit Ghosh, President of Open Orbit Corporation, entered into a Personal Guaranty for the “full and timely performance of and by” Open Orbit under a Retailer Agreement with DISH Network, LLC. The Personal Guaranty included a final and binding arbitration clause of “any and all disputes, controversies or claims arising out of or in connection with this Personal Guaranty.” A dispute arose, and arbitration commenced. Ghosh requested the arbitrator remove him from the arbitration which was denied, as the arbitrator required a written agreement signed by DISH releasing Ghosh from the Personal Guaranty. DISH prevailed and obtained a $220,000 arbitration award (plus post-award interest).

The District Court confirmed the award, and the Tenth Circuit affirmed, noting “Ghosh elected to appear in the existing arbitration, where he professed faith in the arbitrator, claimed to have provided all the evidence relevant to his request to nullify or cancel his liability under the Personal Guaranty, and acknowledged that the arbitrator’s decision would be final and binding.” There were no allegations of arbitrator misconduct.

The Tenth Circuit also rejected Ghosh’s argument that, because he was not a party to the arbitration, issue preclusion is not applicable, as Ghosh “raised and actually litigated the validity of his personal guaranty in the arbitration even though he was not a party to the arbitration itself.” Furthermore, exceptions to the rule again nonparty preclusion were present.

DISH Network, LLC v. Ghosh, No. 18-1131 (10th Cir. Oct. 11, 2018)

This post written by Nora A. Valenza-Frost.

See our disclaimer.