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New reinsurance-related and arbitration developments from Carlton Fields

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Michael Wolgin

Trial Deadlines Continued in Collection Action Filed by Reinsurer Related to Fraudulent Transfer Scheme

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We have been tracking Odyssey Reinsurance’s action to collect a $3.2 million judgment against Richard and Diane Nagby, the owners of two companies involved in an alleged fraudulent transfer scheme. See https://reinsurancefocus.com/tax-counsel-ordered-to-produce-documents-related-to-odyssey-reinsurances-continuing-quest-to-collect-3-2-million-default-judgment-against-richard-and-diane-nagby/ and https://reinsurancefocus.com/post-judgment-collection-efforts-of-reinsurer-continue-in-california-federal-court/. On January 16, 2019, the court denied Diane Nagby’s motion for the court to reconsider its order continuing the pretrial hearing to May 30, 2019. Trial is currently set for July.

Odyssey Reinsurance Co. v. Nagby, No. 3:16-cv-03038 (S.D. Cal. Jan. 16, 2019).

Ninth Circuit Finds That Party was a Third-Party Beneficiary of Arbitration Agreement, and Affirms Order Compelling Arbitration of Putative Class Action

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Three delivery drivers sued a transportation broker for failure to pay overtime and minimum wages, failure to provide rest and meal breaks, failure to timely pay wages upon termination, and willful refusal to pay wages on behalf of a proposed class of current and former drivers. The transportation broker moved to dismiss or stay the proceedings and compel arbitration, asserting that the plaintiffs were required to submit their claims to arbitration because the broker was a third-party beneficiary to arbitration agreements between the delivery drivers and a third party administrator. The district court granted the motion, concluding that the broker was a third-party beneficiary, that the claims were arbitrable, and that arbitration was the proper forum. The individual plaintiffs appealed, but the Ninth Circuit affirmed, holding that, under the applicable state law, the agreements containing the arbitration provisions intended to create a third-party beneficiary contract for the benefit of the broker. The drivers’ “work under the agreement–delivering parcels–was an integral part of [the broker’s] business, and the agreements obligated [the drivers] to indemnify logistics company customers, grant customers the right to subrogate claims and notify customers within four hours of any accidents.” The Ninth Circuit rejected the drivers’ argument that the agreements contained substantively unconscionable provisions, since they were not raised below. Ege v. Express Messenger Systems Inc., Case No. 17-35123 (9th Cir. Dec. 7, 2018).

This post written by Michael Wolgin.

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Shingled Out: Eleventh Circuit Binds Homeowners to Individual Arbitration Provisions Displayed on Roofing Shingle Packaging

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This case involved a twist on the classic “shrinkwrap” agreement. Here, plaintiff homeowners brought a putative class action seeking damages and declaratory relief on behalf of a class of building owners who had used Tamko shingles. In response, Tamko filed a motion to compel arbitration, contending that by unwrapping and retaining its shingles, the homeowners had accepted the terms of its purchase agreement and warranty which were both printed—in full—on the outside wrapper of every shingle package. Specifically, each package wrapper displayed the all-capped word “IMPORTANT” and warned the purchaser in all caps to “READ CAREFULLY BEFORE OPENING [THE] BUNDLE.” The warranty also contained a mandatory arbitration clause, which was similarly printed in capital letters on the outside of every shingle wrapper and specified that any action against Tamko must be arbitrated individually rather than as part of a consolidated or class action. The district court granted Tamko’s motion and dismissed the homeowners’ complaint, reasoning that the homeowners were bound to arbitrate because through their roofers, they had accepted the terms of Tamko’s purchase agreement, including its mandatory-arbitration provision.

On appeal, the Eleventh Circuit affirmed, finding that (1) Tamko’s packaging sufficed to convey a valid offer of contract terms; (2) unwrapping and retaining the shingles was an objectively reasonable means of accepting that offer; and (3) the homeowners’ grant of express authority to their roofers to buy and install shingles necessarily included the act of accepting purchase terms on the homeowners’ behalf. In so finding, the appellate panel reasoned that “[a]s in the shrinkwrap cases, Tamko’s packaging provided conspicuous notice of its offer—something a reasonable, objective person would understand as an invitation to contract.” The panel further stated that, as master of its offer, Tamko was “free to invite acceptance by specified conduct” and rejected the plaintiffs’ arguments that they never saw the shingle packaging and thus never had a reasonable opportunity to consider Tamko’s purchase terms. Instead, the panel found that “acceptance of Tamko’s purchase terms—arbitration clause and all—was incidental to, and reasonably necessary to accomplish, the homeowners’ express grant of agency authority to their roofers to purchase and install shingles” and therefore, notice of the terms printed on the shingle wrappers was properly imputed to the homeowners. Dye v. Tamko Bldg. Prods., Inc., Case No. 17-14052 (11th Cir. Nov. 2, 2018).

This post written by Gail Jankowski.

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Arbitration Award Against HGTV Designer Confirmed Due to Failure to Raise Fairness Objections During Arbitration

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The case involved an award in excess of $800,000 against a home designer and some affiliated companies for a renovation project that went bad. One of the affiliated companies brought an arbitration proceeding against the homeowners for nonpayment, and after appointment of the arbitrator, the homeowners sought to join the home designer pursuant to Construction Industry Arbitration Rules R-7.

The designer’s participation in the arbitration was limited. He did not file an answer to the homeowners’ claims against him and failed to appear at the hearing. After the arbitrator issued a final award holding the designer and other companies jointly and severally liable, the designer moved the federal district court for vacatur.

The district court held that, under the FAA, the appointment of the arbitrator prior to the designer’s participation in the arbitration did not result in a proceeding that was “not fundamentally fair,” distinguishing a case under the New York Convention that had held otherwise because the Convention specifically provides a defense based on “improper composition of the arbitral tribunal.” Under the FAA, the requirements for a “fundamentally fair hearing” are “notice, opportunity to be heard, and to present relevant and material evidence and argument before the decision makers, and that the decision makers are not infected with bias.” There was no indication that those requirements were not met here.

The Tenth Circuit confirmed the district court’s ruling, and denied the designer’s appeal on the additional ground that the designer failed to object to the arbitrator and failed to invoke CIAR R-7(c), which provides an opportunity for the arbitrator to “establish a process for selecting arbitrators for any ongoing or newly constituted case” after the joinder of additional parties. The designer’s failure to invoke CIAR R-7 was fatal to his claim to have been denied due process through the pre-joinder selection of the arbitrator. Gidding v. Fitz, No. 18-1106 (10th Cir. Nov. 6, 2018).

This post written by Benjamin E. Stearns.

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Federal District Court Declines to Rule on Arbitration Award, Finding No Independent Basis for Jurisdiction

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Following arbitration, the parties filed cross-motions to confirm and vacate the arbitration award. The District Court for the Southern District of California issued an order to show cause why the case should not be dismissed for lack of subject matter jurisdiction because the FAA does not independently confer jurisdiction, and the parties did not adequately plead a jurisdictional basis that would permit the court to rule. Golub, moving that the award be vacated, argued that the court had jurisdiction because (1) she was denied a fair arbitral hearing, and (2) the award was in manifest disregard of federal law. The court rejected both arguments, reasoning that federal question jurisdiction to enforce or vacate an arbitration award exists only when ultimate disposition of the matter by the federal court necessarily depends on resolution of a substantial question of federal law, such as when the petition alleges that the arbitrator manifestly disregarded federal substantive law. The court went on to warn that “even in those cases where the arbitrator manifestly disregarded federal substantive law, courts are reluctant to find jurisdiction.” Last, the court stated that the allegation that the arbitrator denied a party a fair opportunity to present its case by refusing to compel production of documents, does not raise a “substantial question of federal law.” The court was “aware of no case … stating that failure to follow federal procedure in an arbitration can give rise to federal question jurisdiction.” BOFI Fed. Bank v. Golub, Case No. 3:18-cv-00816 (USDC S.D. Cal. Nov. 8, 2018).

This post written by Gail Jankowski.

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