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Confirmation / Vacation of Arbitration Awards

Alleged Witness Coaching via Text in Deposition Was “Discoverable” in Arbitration Proceeding and Could Not Support Vacatur of Arbitration Award

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The Fifth Circuit Court of Appeals affirmed the confirmation of an arbitration award over protests from a pro se litigant that the award was procured by undue means as a result of opposing counsel “coaching” a witness via text during a remote deposition.

The plaintiff claimed that USAA had wrongfully terminated him in violation of the Family and Medical Leave Act because he had taken several months of FMLA leave. During the ensuing arbitration proceedings, the plaintiff remotely deposed a USAA employee. While the deposition was ongoing, plaintiff’s counsel discovered the witness was texting with USAA’s attorney. Counsel for both parties then contacted the arbitrator off the record and agreed that the witness would thereafter keep her phone out of reach for the remainder of the deposition. Both the witness and USAA’s attorney immediately deleted the text messages.

The arbitrator subsequently rendered an award in favor of USAA. USAA filed a motion in district court to confirm the award. Plaintiff’s counsel sought and was granted permission to withdraw, while the plaintiff proceeded pro se to seek vacatur of the award, claiming, among other things, that the award was procured by undue means under 9 U.S.C. § 10(a)(1) because the arbitrator considered the witness’s deposition testimony despite the texting.

The district court confirmed the award, explaining that the plaintiff was not entitled to vacatur under section 10(a)(1) because he could not show that the improper behavior of USAA was “not discoverable by due diligence before or during the arbitration hearing,” as required by the statute. In fact, the improper behavior not only was discoverable but actually was discovered before the arbitration hearing. Therefore, the plaintiff could not show any undiscoverable improper behavior to support his section 10(a)(1) claims.

On appeal, the Fifth Circuit affirmed the district court’s denial of the motion for vacatur and the court’s confirmation of the award.

Rodgers v. United Services Automotive Association, No. 21-50606 (5th Cir. July 8, 2022).

Ninth Circuit Confirms Arbitration Award Finding FAA Disallows Judicial Review of Whether Arbitrator’s Factual Findings “Are Supported by the Evidence in the Record”

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Plaintiff Annette Serna appealed from an order of the U.S. District Court for the Central District of California. Serna had brought wrongful termination and related claims against Northrop, including under California’s Fair Employment and Housing Act (FEHA), in the Superior Court of California, Los Angeles County. Northrop removed the matter to the U.S. District Court for the Central District of California and then moved to compel arbitration pursuant to Northrop’s 2010 arbitration policy, which explicitly covered “future” claims between Serna and Northrop. The district court compelled arbitration and stayed the action pending arbitration. The arbitrator dismissed Serna’s claims under FEHA, concluding that Serna was not a qualified individual under the statute. Thereafter, the district court denied Serna’s motion to vacate the arbitrator’s decision. The Ninth Circuit affirmed.

The Ninth Circuit concluded that the district court did not err when it compelled arbitration given that the 2010 policy expressly stated that “any claim, controversy, or dispute, past, present, or future” between Serna and Northrop would be subject to binding arbitration. The court rejected Serna’s argument that she was no longer bound by the 2010 policy because it was “superseded” by an updated policy in 2013, finding that nothing in the 2010 policy stated that a revised policy would nullify Serna’s agreement in 2010 to arbitrate all claims, including future claims arising out of her employment with Northrop. The Ninth Circuit also found that the district court did not err when it denied Serna’s request to vacate the arbitrator’s decision on the basis that Serna was not a qualified individual under FEHA, holding that the arbitrator’s factual findings on that issue are beyond the scope of judicial review allowed by the FAA. Finally, the court found that the arbitrator did not exhibit a “manifest disregard of the law,” concluding that the arbitrator did in fact identify the relevant legal standards and applied them, and noted that “because he did so, we may not second-guess his interpretation or application of the law.”

Serna v. Northrop Grumman Systems Corp., No. 21-55238 (9th Cir. July 12, 2022).

Third Circuit Confirms Arbitration Award Finding Award Was Consistent With Controlling Authority and Arbitrator Did Not Manifestly Disregard Parties’ Agreement

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Defendants Jeffrey M. Smith and Sarah A. Smith appealed from an order of the U.S. District Court for the District of the Virgin Islands. The district court denied the Smiths’ motion to vacate the arbitration award entered against them, concluding that the arbitrator made a good faith attempt to interpret and apply the agreement between the parties, which included the arbitration clause. The Third Circuit affirmed.

The Smiths entered into an agreement, which included an arbitration provision, with plaintiff Bayside Construction LLC wherein Bayside was to perform repair work on the Smiths’ home located on St. Thomas, in the Virgin Islands. The Smiths declared Bayside in default for defects in the repair work but did not allow Bayside to cure the alleged defaults before declaring default, as required under the agreement. Bayside filed a demand for arbitration for amounts due and the Smiths filed a counterclaim for alleged overpayment for work performed. The arbitrator concluded that the Smiths had breached the agreement and entered an award in favor of Bayside, which included a modest reduction for “shoddy” work to the amount that Bayside had claimed.

The Smiths argued that the arbitrator “manifestly disregarded” Virgin Islands law and exceeded his powers by issuing an award to Bayside. The Third Circuit rejected the Smiths’ arguments and agreed with the district court’s finding that, while the arbitrator did not cite Virgin Islands law in the award, it was consistent with authority in the territory addressing both the “opportunity to cure” before terminating an agreement and the application of set-offs for defects in construction cases. The Third Circuit concluded it was “immaterial” that the arbitrator cited an arbitration rule rather than case law from the Virgin Islands in the award since the award would have been no different under Virgin Islands law. The Third Circuit also held that since the award was consistent with authority in the Virgin Islands, the arbitrator had not “manifestly disregarded” the law or the parties’ agreement, and did not exceed his powers.

Bayside Construction LLC v. Smith, No. 21-2716 (3d Cir. July 8, 2022).

Court Confirms Foreign Arbitration Award, Notwithstanding Pending Action in Foreign Court Seeking Award’s Annulment

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Applying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, a U.S. federal district court confirmed a Lebanese arbitration award in favor of Iraq Telecom Ltd. for $3 million against Intercontinental Bank of Lebanon S.A.L. (IBL).

IBL had argued that the court should refuse to confirm the award because it had brought an annulment action in Lebanon, which, according to IBL, had the effect of rendering the award “nonbinding on the parties” under the primary jurisdiction’s (Lebanese) law. The court found, however, that the Convention did not support IBL’s request because the terms of the underlying agreement between the parties made the award final and not subject to an appeal. The court also found that the award had not been set aside or suspended, and even if it could take into account the fact that the annulment action was pending, there was no showing that the annulment action had a likelihood of success.

After weighing certain factors used by the Second Circuit, the court also rejected IBL’s motion under Article VI of the Convention to stay the confirmation pending the resolution of IBL’s Lebanese annulment action. The court found, in pertinent part, that the award “was entered after three years of proceedings before the Tribunal and is supported by the Tribunal’s lengthy, detailed findings of fact and law. The twin goals of arbitration, ‘settling disputes efficiently and avoiding long and expensive litigation,’ favor expeditious execution of the Award.” The court then granted Iraq Telecom’s request for a declaratory judgment recognizing the findings made in the award.

Iraq Telecom Ltd. v. IBL Bank S.A.L., No. 1:21-cv-10940 (S.D.N.Y. Apr. 8, 2022).

Delaware Federal Court Confirms Arbitration Award, Holds Arbitrator Did Not Exceed Authority in Finding Unambiguous Contract Provision Was Unconscionable

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QAD Inc. petitioned the Delaware federal court to confirm an arbitration award it obtained against Block & Company Inc. Block cross-moved to vacate the award. The arbitrator awarded QAD more than $740,000 in connection with a contract dispute between the parties. In moving to vacate the award, Block claimed the arbitrator exceeded his authority in declaring that a limit of liability provision in the contract was unconscionable, despite also finding the contract language itself was unambiguous. Block argued that QAD drafted the provision, and there was no evidence of a gross imbalance between the two sophisticated parties in negotiating the term. The court nonetheless confirmed the award, and denied Block’s motion to vacate, finding Block had not satisfied its “heavy burden” under FAA section 10(a)(4) to show that the award was not “rationally derived from the agreement or supported by the record.” Even if the arbitrator had erred in his interpretation of the case law on unconscionability, the court explained that its power to vacate the award would be constrained because “[e]xceeding one’s powers … is not synonymous with making a mistake.” Because the arbitrator based his assessment of unconscionability on the facts on the record and applicable law, the court held that it could not re-litigate the merits of the unconscionability ruling, regardless of whether the arbitrator reached the correct decision.

QAD, Inc. v. Block & Co., Inc., No. 1:21-mc-00370 (D. Del. Apr. 25, 2022).