Confirmation / Vacation of Arbitration Awards

ARBITRATION AWARD UPDATE

February 29, 2012 by Carlton Fields

Contract Formation

Logan & Kanawha Coal Co., LLC v. Detherage Coal Sales, LLC, No. 2:11-cv-00342 (USDC S.D. W. Va. Jan. 20, 2012) (granting vacatur, alleged arbitration provision not incorporated into parties’ contract)

Exceeded Scope

Zenith Logistics, Inc. v. Teamsters Local Union No. 100, No. 1:11-cv-00301 (USDC S.D. Ohio Feb. 1, 2012) (vacatur denied, arbitrator did not exceed scope in construing contract)

Evident Partiality

NGC Network Asia, LLC v. PAC Pacific Group Int’l, Inc., No. 1:09-cv-08684 (USDC S.D.N.Y. Feb. 3, 2012) (vacatur denied, no evident partiality).

Public Policy

Titan Tire Corp. v. United Steel, No. 3:10-cv-50296 (USDC N.D. Ill. Dec. 22, 2011) (denying vacatur on de novo review of claim that arbitration award under CBA violated public policy)

Manifest Disregard

Fastware, LLC v. Gold Type Business Machines, No. 2:09-cv-01530 (USDC D.N.J. Jan. 5, 2012) (motion to vacate denied, no manifest disregard)

Agility Public Warehousing Co., K.S.C. v. Supreme Foodservice GmbH, No. 11 Civ. 7375 (USDC S.D.N.Y. Dec. 19, 2011) (see also the court’s subsequent memorandum providing support for the December 19 Order) (confirming award, denying vacatur, no manifest disregard)

Hosier v. Citi Group Global Markets, Inc., No. 11-cv-00971 (USDC D. Colo. Dec. 21, 2011) (denying vacatur, arbitrators did not exceed authority, no manifest disregard)

Westminster Securities Corp. v. Petrocom Energy, Ltd., No. 1:10-cv-07893 (2d. Cir. Jan. 19, 2012) (affirming denial of vacatur, arbitrators did not exceed scope, no manifest disregard).

Priority One Services, Inc. v. W&T Travel Services, LLC, No. 10-1873 (USDC D.D.C. Aug. 23, 2011) (vacatur denied, arbitrators did not exceed scope, no manifest disregard), and subsequent order (Jan. 23, 2012) (awarding attorneys fees and costs to prevailing party due to frivolous vacatur argument)

Sawyer v. Horwitz & Assoc., Inc., No. 11-CV-1604 (USDC S.D. Cal. Jan. 31, 2012) (denying vacatur, no manifest disregard, no failure to hear pertinent material evidence)

Procedure

Choice Hotels Int’l, Inc. v. RMC Realty, Ltd., No. 8:11-cv-02093 (USDC D. Md. Jan. 31, 2012) (granting motion for default in action seeking confirmation of award).

Pacific Employers Ins. Co. v. Global Reinsurance Corp. of Am., No. 1:11-cv-06301 (USDC S.D.N.Y. Dec. 12, 2011) (granting motion to confirm award, including declaratory relief)

Johnson v. Nat’l Railroad Passenger Corp. Amtrak, No. No. 11-13739 (11th Cir. Jan. 10, 2012) (affirming dismissal of vacatur action for failure to state a cognizable statutory ground for vacatur)

Big Lagoon Rancheria v. California, No. 4:09-cv-01471 (USDC N.D. Cal. Feb. 1, 2012) (denying vacatur of JAMS mediator recommendations and orders)

This post written by John Pitblado.

See our disclaimer.

ARBITRATION AWARD IN FAVOR OF PROGRESSIVE AFFIRMED

February 23, 2012 by Carlton Fields

Recently, the Minnesota Court of Appeals affirmed the entry of an arbitration award against North Star Taxi. North Star and Progressive were parties to a voluntary arbitration agreement for all property damage and business-interruption-loss claims through intercompany arbitration before Arbitration Forums, Inc. After a dispute arose regarding an auto accident between one of Progressive’s insureds and one of North Star’s bailee-independent contractors, an arbitrator ruled that each of the two drivers were 50% responsible for the accident and reduced North Star’s undisputed damages by 50% based upon that negligence. North Star moved to vacate the award, and the Minnesota state district court ruled that North Star had waived its right to seek vacation of the award by entering into the arbitration award. North Star appealed (now also seeking attorneys’ fees), and the Court of Appeals concluded that under the Minnesota Uniform Arbitration Act, North Star had contractually waived its right to judicial review of the award. Accordingly, the award was confirmed and North Star’s motions were denied. North Star Taxi v. Progressive American Insurance Co., No. 11-757 (Minn. Ct. App. Jan. 30, 2012).

This post written by John Black.

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CONFIDENTIAL ARBITRATION AWARD AGAINST AXA RE CONFIRMED WITHOUT OPPOSITION

February 9, 2012 by Carlton Fields

A court recently confirmed an arbitration award against AXA Re in a reinsurance dispute involving reinsurance contracts entered into by predecessor companies in the 1970s. Details on the underlying arbitration are not available, as the petitioners’ filing was sealed by court order in accordance with a confidentiality agreement entered into by the parties in the arbitration. AXA Re did not oppose the petition nor appear in the court action, which was filed pursuant to the New York Convention. ACE Property & Casualty Insurance Co. v. AXA Re, Case No. 1:11-cv-07050 (USDC S.D.N.Y. Jan. 9, 2012).

This post written by Michael Wolgin.

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COURT CONFIRMS REINSURANCE ARBITRATION ORDERS OVER TIMELINESS AND FINALITY CONCERNS; REFUSES TO STRIKE CONFIDENTIAL FACTS IN PETITION

February 7, 2012 by Carlton Fields

A court has granted two unopposed petitions to confirm two arbitration orders under the New York Convention, in what was a dispute over documentation requirements of a forty-year old asbestos claims reinsurance agreement between Century Indemnity Company and certain London market reinsurers (LMRs). The first arbitration order required one of the LMRs to post letters of credit to secure Century’s then-outstanding claims. While the panel initially entered the order in 2006, the letters of credit were subsequently addressed in another order by the panel in 2008. The second order, entered in 2007 and made final in 2009, related to the panel’s findings on the merits of the reinsurance agreement’s documentation requirements. The court found that both orders were “necessarily incorporated” in the respective 2008 and 2009 orders, and were thus timely under the New York Convention’s three-year statute of limitations. In confirming the first order, the court explained that although it technically was not a final award (which is a requirement for jurisdiction under the Federal Arbitration Act), it was “sufficiently separate and final for federal court review and confirmation.”

Also noteworthy was the court’s denial of Century’s motion to strike, which argued that portions of the LMR’s petition contained gratuitous assertions that violated the parties’ confidentiality agreement and were intended to be a “press release for use in other matters.” The court found that the language at issue was related to the underlying controversy, that the panel’s orders were made public in the court record, and that “the mere fact that the parties ha[d] designated certain documents as confidential among themselves is insufficient to rebut the ‘strong presumption of public access to court records’ that exists in federal courts.” Century Indemnity Co. v. Certain Underwriters at Lloyd’s London, Case No. 1:11-cv-01040 (USDC S.D.N.Y. Jan. 10, 2012).

This post written by Michael Wolgin.

See our disclaimer.

ARBITRATION ROUNDUP

January 18, 2012 by Carlton Fields

Manifest Disregard:

L’Objet, LLC v. Samy D. Ltd., Case No. 11-3856 (USDC S.D.N.Y. Sept. 29, 2011) (confirming award, finding arbitrator did not exceed powers, commit misconduct, or exhibit manifest disregard of the law, in disallowing certain discovery, and interpreting applicable precedent)

Schwartz v. Merrill Lynch & Co., Inc., No. 10-0826 (2d Cir. Nov. 30, 2011) (affirming denial of motion to vacate arbitrator’s award, rejecting claim that retroactivity of Lilly Ledbetter Fair Pay Act did not suffice to establish manifest disregard of arbitrator decision made before passage of Act)

Diaz v. Colombina, S.A., Case No. 10-1426 (USDC D.P.R. Dec. 6, 2011) (confirming award, finding no basis for vacatur under enumerated categories in FAA)

Scope of Submission:

Wells Fargo Bank, N.A. v. WMR e-PIN, LLC, No. 09-3800 (8th Cir. Sept. 1, 2011) (Affirming confirmation of award, panel did not exceed scope of submission by ordering injunctive relief)

Wilkes Barre Hospital Co., LLC v. Wyoming Valley Nurses Assoc. PASNAP, Nos. 11-1134 and 11-1225 (3d Cir. Dec. 1, 2011) (affirming confirmation of award, finding arbitrator’s award did not exceed scope of submission based on nature of “mixed remedy” not specifically contemplated in parties’ Collective Bargaining Agreement)

Evident Partiality:

Anderson v. Cricket Comm’s, Inc., Case No. 11-2004 (USDC, W.D. Tenn. Sept. 23, 2011) (confirming award, finding no corruption, fraud or partiality by single arbitrator challenged by pro so litigant for declining to allow certain discovery)

Free Country Design & Construction, Inc. v. Proformance Group, Inc., Case No. 09-06129 (USDC W.D. Mo. Dec. 5, 2011) (confirming award, finding no evident partiality for “conflict of interest” based on arbitrator’s prior relationship with prevailing parties’ predecessor-in-interest, awarding attorney’s fees for post-arbitration litigation)

Validity of Arbitration Agreement:

Tricon Energy, Ltd. v. Vinmar International, Ltd., Case No. 10-05260 (USDC S.D. Tex. Sept. 21, 2011) (confirming award, finding valid agreement to arbitrate based on email exchanges which ratified certain disputed provisions of the parties’ agreement, including the arbitration provision)

Unity Construction Services, Inc. v. New Jersey Building Laborer’s Local Unions and District Councils, Case No. 11-6209 (USDC D.N.J. Dec. 12, 2011) (vacating award based on finding that no valid agreement existed as putative agent of contracting party had no authority to enter into agreement containing arbitration provision)

Duvall Contracting LLC v. New Jersey Building Laborer’s District Council, Case No. 11-02705 (USDC D.N.J. Dec. 16, 2011) (confirming award, finding valid agreement to arbitrate under Collective Bargaining Agreement applied to non-signatory company set up by principal of signatory company for purpose of avoiding use of union labor, contrary to CBA’s “double-breasting” provision)

This post written by John Pitblado.

See our disclaimer.