Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

Illinois District Court Denies Motion to Vacate Arbitration Award and Imposes Sanctions, Citing “Outright Hostility” to Such Challenges in the Seventh Circuit

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The U.S. District Court for the Northern District of Illinois denied a former employee’s motion to vacate an arbitration award in favor of defendant AT&T Mobility Services LLC. The plaintiff claimed the arbitrator exceeded his powers or imperfectly executed them and that the award manifestly disregarded the law, so as to warrant vacatur under section 10(a)(4) of the Federal Arbitration Act. The court disagreed, finding as an initial matter that the plaintiff failed to explain how exactly the arbitrator exceeded his powers until his reply brief. Because the court cannot consider arguments first raised on reply, the motion to vacate was denied on this basis alone. But even considering the motion on its merits, the court found no evidence requiring vacatur, noting the grounds for doing so are “extremely limited” and that the plaintiff failed to cite a single decision in which an arbitration award was vacated. The court took particular issue with the “incoherent and unsupported arguments” in the plaintiff’s moving papers and the plaintiff’s evident attempt to take “another bite at the apple.” Finding there is “an outright hostility in the Seventh Circuit to parties challenging arbitration awards,” the court granted AT&T’s motion for sanctions and directed the plaintiff to pay $1,500.

Skuja v. AT&T Mobility Services LLC, No. 1:18-cv-07945 (N.D. Ill. May 25, 2021).

D.C. Circuit Affirms Award of Fees

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This case arose out of an employment dispute between Preeminent Protective Services Inc., which provides security services in and around the District of Columbia, and the Service Employees International Union Local 32BJ. When Preeminent took over a contract, it refused to hire two guards who had previously worked there. The union claimed the refusal violated a collective bargaining agreement.

The union filed a petition to compel arbitration of that claim in federal court in the District of Columbia. In May 2018, the district court granted summary judgment to the union and ordered the parties to arbitrate. After Preeminent stalled the arbitration for more than a year, the district court held Preeminent in contempt for failing to comply, and awarded $51,000 in costs and attorneys’ fees to the union based on a “lodestar” figure, reflecting the number of hours worked by each union lawyer multiplied by a reasonable hourly rate for each lawyer.

Preeminent appealed all three orders of the district court: the motion to compel arbitration, the contempt order, and attorneys’ fees. However, the D.C. Circuit lacked jurisdiction to review the arbitration and contempt orders, which were final decisions not timely appealed. On appeal, Preeminent raised three challenges to the fee award.

First, Preeminent argued it was impermissibly punitive to use prevailing market rates as opposed to actual rates. The D.C. Circuit rejected that argument, noting that the court has repeatedly upheld the use of prevailing market rates in determining appropriate awards under statutory fee-shifting provisions.

Second, Preeminent claimed that the district court miscalculated the prevailing market rates. The D.C. Circuit again rejected that argument, finding that although the union’s attorneys charged discounted rates, they were nevertheless worthy of market rates given their experience and credentials.

Finally, Preeminent argued the district court should have lowered the award to account for Preeminent’s inability to pay. The D.C. Circuit rejected that argument based on contradicting evidence that showed Preeminent had active contracts worth more than $2.5 million.

The D.C. Circuit therefore affirmed the district court’s fee award on the merits.

Service Employees International Union Local 32BJ v. Preeminent Protective Services Inc., No. 19-9157 (D.C. Cir. May 18, 2021).

Second Circuit Affirms Denial of Vacatur of Employment Arbitration Award Due to Failure to Provide Evidence of Alleged Perjury in Arbitration Proceedings

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The district court had denied a motion filed by a former employee of a department store for vacatur of an arbitration award that rejected a grievance filed by the employee’s union against the store. On appeal, the employee argued that the district court erred when it denied vacatur because the award was obtained by fraud, namely, false testimony. The Second Circuit affirmed, holding that, because the employee provided no record evidence of the arbitration testimony, and only repeated “unsupported allegations,” the appellant failed to show (1) the existence of fraudulent activity; (2) that, even with the exercise of due diligence, he could not have discovered the fraud prior to the award issuing; and (3) that the fraud materially related to an issue in the arbitration. The court concluded: “Without providing at least the challenged testimony, [the appellant] has failed to show that any perjury occurred or even that the testimony he wishes to challenge was materially related to the arbitrator’s decision.” The court affirmed, ruling that the employee failed to demonstrate any error with the denial of the motion for vacatur.

Bright-Asante v. Saks & Co., No. 20-1280 (2d Cir. May 14, 2021).

Private Employment Arbitration Agreement Not Binding on Secretary of Labor When Bringing an Enforcement Action on Behalf of One Party to Agreement Against the Other

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The Department of Labor brought an enforcement action against Arizona Logistics Inc. for alleged violations of the FLSA’s minimum wage, overtime, record-keeping, and anti-retaliation requirements resulting from the alleged misclassification of delivery drivers as independent contractors rather than employees. Arizona Logistics moved to compel arbitration under its agreements with the drivers, and the Arizona district court denied the motion on the authority of the Supreme Court’s decision in EEOC v. Waffle House Inc.

The Ninth Circuit Court of Appeals affirmed the denial, noting that the FAA does not provide that agreements to arbitrate are enforceable against nonparties, and the secretary of labor was not a party to the agreement. In addition, the court highlighted the fact that, under the statutory scheme enacted by Congress, the secretary is “master of [his] own case,” that the remedial statute at issue “unambiguously authorizes the Secretary to obtain monetary relief on behalf of specific aggrieved employees,” and that the enforcement action may be a vehicle to “vindicate broader governmental interests,” such as deterring other employers from violating the FLSA and protecting compliant employers from unfair wage competition. Moreover, the secretary not only controlled the case, but the employee did not even have a right to intervene in the secretary’s action once the secretary filed suit.

Quoting Waffle House, the Ninth Circuit concluded that a contrary holding “would undermine the detailed enforcement scheme created by Congress simply to give greater effect to an agreement between private parties that does not even contemplate the Secretary’s statutory function.”

Walsh v. Arizona Logistics, Inc., No. 20-15765 (9th Cir. May 18, 2021).

English High Court Blocks Financial Services Group From Bringing Excess Insurance Claim Against UK Reinsurers in South Africa Where Courts of England and Wales Had Exclusive Jurisdiction Under Excess Layer Reinsurance Contracts

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After paying out more than $21 million in settlements for its mishandling of a collective investment scheme that collapsed in 2009, financial services group ABSA filed suit in South Africa against its reinsurers to enforce reinsurance contracts that purportedly provided compensation for the settlement of lawsuits and arbitration.

The U.K.-based reinsurers claimed that the proceedings brought against them in South Africa by ABSA were in breach of the reinsurance contracts, which provided that the courts of England and Wales should have exclusive jurisdiction.

The reinsurers applied for an interim anti-suit injunction. An interim anti-suit injunction restraining ABSA from pursuing the South African proceedings was granted until the return date. On the return date, Nicholas Vineall QC, sitting as a judge at the High Court, addressed what, if any, anti-suit injunction was appropriate — mainly whether he should continue, or vary, or decline to continue, the interim injunction.

Finding no strong reasons for refusing to restrain the South African proceedings on the excess layers, the High Court judge held he would keep in place the anti-suit injunction preventing a claim from being brought in South Africa under the excess layers, reasoning that the excess layer coverage was governed by an exclusive jurisdiction clause that required disputes to be litigated in the courts of England and Wales. However, the High Court judge refused to continue the injunction preventing a South African proceeding over the primary layer of reinsurance, as that primary layer of coverage had no such exclusive jurisdiction clause.

Recognizing that the end result was not ideal because it leaves most of the parties involved in two sets of proceedings, the High Court judge reasoned that its decision “reflects the different wording of the agreements which the parties entered into,” and “[t]he result does give effect to and enforce those agreements.”

Axis Corporate Capital UK II Ltd. v. ABSA Group Ltd., No. CL-2020-000871, [2021] EWHC 861 (Comm), in the High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (Apr. 13, 2021).