Arbitration / Court Decisions

Court Orders Compliance with Arbitral Subpoenas, Deferring to the Panel’s Assessment of the Value of the Requested Testimony

July 31, 2018 by Michael Wolgin

In a case that had been filed and then stayed in a New York federal district court in connection with an ongoing arbitration involving alleged violations of federal securities laws, the plaintiffs filed a motion to enforce two subpoenas issued by the arbitrators. The arbitral subpoenas were issued to two non-party witnesses who were refusing to appear to testify at the arbitration hearings. The defendants and the non-parties did not challenge the subpoenas as being invalid, improperly issued by the arbitrators, or improperly served. Instead, they argued that the court should apply its discretion and determine that the requested testimony would be improper rebuttal, duplicative, and overly burdensome. The court rejected defendants’ and the non-parties’ arguments and found that if the arbitration panel, which had sat through more than thirty days of hearings over two years, believed that the non-parties’ testimony was appropriate, the court could find no basis to quash either subpoena. Notwithstanding that the court had the authority to assess the value of the requested testimony, it was not obligated to make that assessment and was not sufficiently informed to do that here. The court found that the arbitrators were best-suited to do so, and ordered compliance with the subpoenas. Shasha v. Malkin, Case No. 1:14-cv-09989 (USDC S.D.N.Y. July 5, 2018).

This post written by Michael Wolgin.

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Two Federal Appellate Courts Decline to Find “Evident Partiality” Due to Trivial Omissions in Arbitrator’s Disclosures

July 30, 2018 by Michael Wolgin

In two separate appellate decisions, two circuit courts of appeal declined to overturn orders enforcing arbitration awards where the appellants had challenged the respective awards based on “evident partiality” under the FAA. In Republic of Argentina v. AWG Group Ltd., Argentina contended that there was evident partiality by one of the arbitrators who did not disclose that she at one time (more than a year before the arbitration panel found Argentina liable) sat on the board of directors for a company with investments in two of the parties. Argentina appealed, but the appellate court affirmed, reasoning that the company on whose board the arbitrator sat had only trivial interest in the parties, and therefore, the arbitrator’s interests in the parties were insignificant.

Similarly, in Ploetz v. Morgan Stanley Smith Barney LLC, an arbitrator had submitted a disclosure report stating that he was currently serving as an arbitrator in two other cases that had Morgan Stanley as a party and that he had served as an arbitrator in eight closed cases in which an affiliate of Morgan Stanley had been a party. However, the arbitrator failed to disclose that he had once served as a mediator in another case, which was unsuccessful, in which an arbitration panel (on which he did not sit), ultimately found that Morgan Stanley owed the claimant $75,000 in damages. Despite this omission, the appellate court affirmed the order denying vacatur of the award. The appellate court reasoned that because the arbitrator timely disclosed the ten other cases he arbitrated where a member of the Morgan Stanley family was a party, his undisclosed mediation of the omitted case represented at most a trivial and inconsequential addition to that relationship. Republic of Argentina v. AWG Group Ltd., Case No. 1:15-cv-01057 (D.C. Cir. July 3, 2018); Ploetz v. Morgan Stanley Smith Barney LLC, Case No. 17-2405 (8th Cir. July 2, 2018).

This post written by Gail Jankowski.

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California Federal Court Finds Defendant Did Not Wave Right to Arbitrate Despite Delay in Initiating Arbitration

July 25, 2018 by John Pitblado

Plaintiff argued that Defendant’s basis for removal was not applicable because Defendants waived their right to arbitration or because the case is not related to the agreement containing an arbitration provision. Finding the subject matter of the action related to the agreement, the Court looked at whether Defendants waived their right to arbitrate. Looking at the various factors articulated by the Ninth Circuit, the Court found Defendants had not waived their arbitration rights, and was “mindful of the presumption that waiver of the right to arbitrate is disfavored.” The Court’s key inquiry was “whether Plaintiff was prejudiced by Defendants’ action” in delaying bringing arbitration because of ongoing settlement negotiations. “[C]ourts have declined to find waiver in analogous cases where arbitration was not sought immediately, even after years of delay.”

Assad v. Josefsson, 18-cv-02470 (USDC C.D. Cal. June 19, 2018)

This post written by Nora A. Valenza-Frost.

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First Circuit Holds Online Mandatory Arbitration Agreement is Unenforceable

July 24, 2018 by John Pitblado

The First Circuit recently held that an arbitration clause contained in the online contract of the ride sharing app, Uber Technologies, Inc., is unenforceable under Massachusetts law.

In this case, plaintiffs, Uber riders, filed a class action in Massachusetts state court, challenging certain fees and surcharges they were charged in addition to the ride-sharing costs to which they agreed as violations of state consumer protection laws. Uber removed the case to Massachusetts federal court and filed a motion to compel arbitration based on a mandatory arbitration clause included in Uber’s Terms of Service. In order to use the Uber app, the customers had been required to register for an Uber account and to agree to the company’s Terms of Service & Privacy Policy. The Terms of Service included an arbitration clause which required customers to resolve any disputes with Uber through binding arbitration and also contained a class action waiver. The Massachusetts district court granted Uber’s motion to compel arbitration and dismissed the lawsuit. The plaintiffs then filed an appeal to the First Circuit.

At the outset, the First Circuit acknowledged that federal policy favors arbitration under the Federal Arbitration Act (“FAA”). Despite this, the court stated a valid agreement to arbitrate must exist before the FAA applies. The Court then analyzed whether Uber’s mandatory arbitration clause was enforceable under Massachusetts law, and concluded that an online contract is enforceable only if it is reasonably communicated to the plaintiff, and accepted by the plaintiff. The First Circuit then found that Uber had not reasonably communicated its Terms of Service, including the mandatory arbitration clause, to its customers because the link to the Terms was not sufficiently conspicuous. The Court noted that Uber did not use a common method of conspicuously informing online app users of its terms by requiring users to click a box stating that they agree to the terms before continuing to the next screen. Instead, Uber displayed, on an enrollment screen, a rectangular box with the language “Terms of Service,” which customers were not required to click in order to review the contract. The Court noted that Uber’s terms were not conspicuously disclosed to its users because the link was not designed in a way that most users associate with hyperlinks and thus did not have the appearance of a hyperlink. Further, the hyperlink box was not sufficiently distinct from the rest of the screen, which had other links in bold with similarly sized font that were “more noticeable.” The First Circuit noted: “if everything on the screen is written with conspicuous features, then nothing is conspicuous.” Thus, the First Circuit found that the arbitration clause is unenforceable, and reversed the Massachusetts federal court decision and remanded the case.

Cullinane v. Uber Technologies, Inc., No. 16-2023 (1st Cir. June 25, 2018).

This post written by Jeanne Kohler.

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New York Federal Court Finds Section 1782 Petition Can Reach Documents Abroad

July 23, 2018 by John Pitblado

In a petition brought under 28 U.S.C § 1782, petitioner sought discovery of documents outside the United States. Recognizing the Second Circuit had not ruled on whether such discovery was authorized by Section 1782, the Court looked to precedent from the Eleventh Circuit, which had previously allowed such discovery abroad. “Section 1782 imposes no geographical limit on the production of documents” and to the extent courts have done so, it was “for reasons of legislative history and policy.” The Court found that the factors discussed by the Eleventh Circuit favored petitioner’s application with respect to documents relating to a criminal proceeding in Monaco, and permitted some – but not all – of petitioner’s discovery requests.

The petition also sought discovery in aid of criminal proceedings in Switzerland. Finding the petitioner satisfied the statutory requirements with respect to the Monaco proceedings, the Court found Section 1782 did not require the petitioner to “satisfy the statutory requirements for each foreign proceeding for which he or she wishes to use the requested discovery.”

In re Application of Accent Delight Int’l Ltd and Xitrans Finance Ltd., 16-MC-125 (USDC S.D.N.Y. June 11, 2018)

This post written by Nora A. Valenza-Frost.

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