In an unusual twist in a matter unrelated to reinsurance, an arbitration panel awarded a party in a construction dispute approximately $1.4 million, when the Petitioner sought an award of approximately $6 million, and the Respondent’s expert had estimated the losses at approximately $4 million. The parties each filed separate proceedings directed to the award. When the Petitioner’s request for vacation of the award was denied, the Respondent sought to voluntarily dismiss its request for confirmation under Fed. R. Civ. Pro. 41, apparently due to its belief that since the limitation period for confirmation had expired, the award might be unenforceable, and it could try again for a larger award. The district court found the attempted dismissal null and void, and confirmed the award, holding that Rule 41 applied by its terms only to “actions,” and that since requests for confirmation of arbitration awards were motions rather than actions, Rule 41 did not apply. The court proceeded to confirm the award. Alstom Power, Inc. v. S & B Engineers & Constructors, Ltd., Case No. 04-2370 (USDC N.D.Tex. April 30, 2007). The court may have felt that Alstom Power was abusing the Court's process.
Confirmation / Vacation of Arbitration Awards
SECOND CIRCUIT AFFIRMS ARBITRATION AWARD FINDING NO VIOLATION OF ‘WELL-DEFINED AND DOMINANT’ PUBLIC POLICY
The Second Circuit recently addressed the standard by which a court may refuse to enforce an arbitration award on the ground that the award is contrary to public policy. In a case arising out of an employment dispute, Hope Day Nursery appealed a district court decision granting the plaintiffs’ motion to confirm two arbitration awards that (1) reinstated a discharged employee with back pay; and (2) instructed Hope Day nursery to “cease and desist from hiring and/or assigning substitute teachers to work extra hours” before first offering those hours to qualified existing employees.
The Second Circuit agreed with the district court’s finding that Hope Day Nursery’s challenge to the first arbitration award was untimely. With respect to the challenge to the second arbitration award, the court explained that “[w]hile a court may ‘refus[e] to enforce an arbitrator’s award under a collective-bargaining agreement because it is contrary to public policy,’ such a refusal ‘is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant…and not from general considerations of supposed public interests.’” Since Hope Day Nursery did not point to a well defined and dominant public policy that would be violated by enforcement of the collective bargaining agreement, the Second Circuit affirmed the arbitration award. District Council 1707 v. Hope Day Nursery, Case No. 06-0325-cv (2d Cir. May 4, 2007).
Court remand matter to arbitration panel for new damage award
On November 13, 2006, with respect to an NASD arbitration, a District Court entered an order remanding an arbitration award to the panel for a new damage award, finding that the award was in manifest disregard of law, and shocking to the conscience of the court. On April 9, 2007, the Court entered an Order denying a motion for reconsideration. Apparenly upset with the passage of time with no progress, the Order provides that if the panel does not enter a new damage award within 30 days, the court will issue an Order to Show Cause why the panel should not be held in contempt. Strobel v. Morgan Stanley Dean Witter, Case No. 04-1069 (S.D. Cal.).
District Court rejects challenge to arbitration award on "manifest disregard of law" basis
Westra Construction, Inc. (“Westra”), a subcontractor, sought payment from Alexander Construction, Inc. (“ACI”), the construction manager, for work performed on a Pennsylvania Turnpike Commission project. ACI rejected Westra’s claims as unsubstantiated. Westra subsequently filed a demand for arbitration. Four days before the arbitration hearing, Westra provided ACI with thousands of pages of documents in support of its claims. The hearing that ensued spanned eighty-five hearing days. At the conclusion of the hearing, an arbitration award in Westra’s favor was issued. Westra then commenced an action in the U.S. District Court for the Middle District of Pennsylvania against United States Fidelity & Guaranty Company (“USF&G”), ACI’s surety, to collect the arbitration award. Due to the fact that ACI had declared bankruptcy and could no longer challenge the validity of the award, the District Court permitted USF&G to file a motion to vacate the arbitration award in ACI’s stead.
As grounds for the motion to vacate, USF&G contended that: (1) the arbitrators so imperfectly executed their powers that they were unable to reach a final and fair disposition of the matter; and (2) the arbitrators manifestly disregarded the law. The District Court denied the motion to vacate, holding that procedural irregularities cited by USF&G did not rise to the level of imperfect execution of powers where the arbitrators resolved only those issues that had been properly presented to them and rationally derived the award from the parties’ submissions and arguments. The Court rejected the manifest disregard argument on the basis that support for the arbitral award could be found in the hearing transcripts and in the parties’ post-hearing submissions, there was no evidence that the arbitrators were “fully aware” that their interpretations of relevant agreements were improper, and it could not be proven that law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case. Westra Construction, Inc. v. United States Fid. & Guar. Co., Case No. 1:03-CV-0833 (M.D. Penn. Mar. 29, 2007).
Minnesota Court of Appeals affirms vacation of arbitration award procured by "undue means"
Cincinnati Insurance Company (“CIC”) brought a subrogation action against Tyco Fire Products (“Tyco”), alleging that Tyco negligently designed, manufactured, and installed a sprinkler system that malfunctioned, causing property damage to CIC’s insured. The parties agreed to submit the matter to binding arbitration by Arbitration Forums, Inc. (“AF”). AF’s rules provide, among other things: (1) that an arbitration is commenced by the filing of a completed P-Form; (2) that a respondent answers by filing its materials with AF and all other involved parties; and (3) that “personal representation will not be allowed in cases when an answer has not been filed as outlined above.” Despite submission of an incomplete P-Form by CIC (neglecting to “x” the boxes requesting notice of and attendance at the arbitration hearing) and failure by Tyco to provide CIC with copies of its answer, AF, contrary to its own rules, concluded that CIC had waived notice and appearance and allowed Tyco to be represented at the hearing. The arbitration proceeded without attendance of CIC’s counsel and a decision favorable to Tyco was issued. Thereafter, CIC petitioned the Minnesota District Court to vacate the arbitration award under Minn. Stat. § 572.19, subd. 1(1) (2004), as procured by “other undue means.” The District Court granted the petition and Tyco appealed.
The Minnesota Court of Appeals affirmed the District Court’s decision, concluding that Tyco’s failure to provide its arbitration documents to Cincinnati resulted in Tyco having an ex parte communication with the neutrals in the case and constituted procurement of an award by “other undue means.” The Court of Appeals reasoned that, even if CIC could be said to have waived notice of and appearance at the hearing, CIC never waived its right to receive copies of Tyco’s submissions or its right to amend its own submissions in response. Additionally, the Court concluded that the arbitration award should be vacated under Minn. Stat. § 572.19, subd. 1(4), on the alternative ground that the hearing was conducted without due process, in violation of Minn. Stat. § 572.129(a), requiring that the arbitrators have notification of the arbitration hearing served on the parties “personally or by certified mail not less than five days before the hearing.” In re Arbitration Cincinnati Ins. Co. v. Tyco Fire Prod., f/k/a Cent. Sprinkler Co., Case No. 82C806001071 (Minn. Ct. App. May 1, 2007).