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Archive for the ‘United States Court of Appeals for the Fifth Circuit’ Category

HarrisMartin Reinsurance Conference Postscript

September 28th, 2011 Events, Evident Partiality, Grounds for Vacatur, United States Court of Appeals for the Fifth Circuit, United States Court of Appeals for the Second Circuit No Comments »

On September 22-23, 2011, a number of experienced reinsurance industry executives and  in-house counsel, and a small group of outside counsel (yours truly included), spoke at the HarrisMartin Publishing-sponsored reinsurance conference, “Reinsurance Summit:  Fresh Perspectives on the Reinsurance Front,” which took place at the Loews Philadelphia Hotel.  (Our pre-conference, August 22, 2011 post (here) sets forth the conference program agenda.)

As expected attendance was modest – no doubt the result of the cost-cutting mandated by economic conditions, coupled with reduced reinsurance-dispute frequency and severity — but the conference was nevertheless a great success.  The presentations were thoughtful, interesting and professionally useful, and the smaller group of attendees not only facilitated robust – and sometimes, spirited – discussions during the program, but also provided a relaxed atmosphere conducive to networking during the breaks.  I, for one, returned home with “fresh perspectives” on a number of reinsurance-related issues, and those perspectives have proved to be good fodder for brainstorming.

Conference co-chairs Edward K. Lenci (Partner, Hinshaw & Culbertson LLP, New York, NY), Leslie J. Davis (Vice President & Assistant General Counsel, Gen Re; Senior Vice President & General Counsel, United States Aviation Underwriters, Inc.), and Wendy R. Taylor (Vice President and Associate Counsel, Chubb & Son, a division of Federal Insurance Company), outdid themselves on this one.  All three devoted a great deal of time and effort into organizing and implementing the conference over a several month period.  Ed spearheaded the effort and was the event’s chief moderator, while Wendy did double duty as a co-manager and faculty member.   Wendy also had the honor of introducing the keynote speaker, Commissioner Thomas B. Considine of the New Jersey Department of Banking and Insurance (Commissioner Considine also chairs the National Association of Insurance Commissioners‘ Reinsurance Task Force).  Ed’s, Wendy’s and Leslie’s hard work and devotion paid great dividends to all who attended.

Conference-sponsor HarrisMartin Publishing likewise did a superb job organizing, implementing, and promoting the event, and handling all of the administrative, technical, and CLE-related details.  The three key players were Conference Director Vicki Gilbreath; Reinsurance Report Editor Marcy Kowalchuk, whom I’ve known since she was a Mealey’s Reinsurance Reports editor some years back; and Editorial Director Jeff Andrus.  All three worked diligently and intensely on the project, and demonstrated their impressive editorial, publishing, promotional and event-management skills in the process.  They were quick with an effective solution whenever there was a problem.

Of course, the conference might have been a rather mind-numbing and painful way to earn CLE credit were it not for the superb faculty, all of whom delivered and facilitated interesting and thought provoking discussion and debate on several diverse reinsurance-related topics, and did so with great enthusiasm, skill and aplomb.  Their credentials and reputations speak for themselves:

A. Lindsay Doering Principal, Law Office of A. Lindsay Doering, Philadelphia, PA
Ali E. Rifai General Counsel, Zurich Insurance CMB Division, and former Interim General Counsel, Zurich Insurance Middle East Region
Anthony Vidovich Vice President & Assistant General Counsel, Director of Reinsurance Law, The Hartford, Hartford, CT
Bina T. Dagar Ameya Consulting, LLC, Livingston, NJ
Daniel E. Tranen Partner, Hinshaw & Culbertson LLP, Boston, MA
Daniel Schelp Managing Attorney, National Association of Insurance Commissioners
David A. Silva

Partner, Mound Cotton Wollan & Greengrass, New York, New York, NY
David N. Kragseth Senior Contract Wording Specialist, Munich Reinsurance America, Inc., Princeton, NJ
Fritz K. Huszagh

Partner, Hinshaw & Culbertson, Chicago, IL
Jeanne M. Kohler Partner, Edwards Angell Palmer & Dodge LLP, New York, NY
Matthew T. Wulf Vice President, State Relations and Assistant General Counsel, Reinsurance Association of America, Washington, D.C.
M. Machua Millett Senior Vice President, Senior Advisory Specialist and Global GPL Team Leader, Marsh USA Inc., Boston, MA
Michael Zeller Vice President, Reinsurance Services Division, AIG, Inc., New York, NY
Myra E. Lobel Managing Director, Guy Carpenter & Company LLC, New York, NY
Patrick H. Cantilo Cantilo & Bennett LLP, Austin, TX
Peter W. Ambler Managing Director, Towers Watson (Re)Insurance Brokers Ltd., London, England
Scott P. Birrell Vice President and Associate General Counsel, Travelers Insurance Co., Hartford, CT
Steven Agosta General Counsel, XL Re America, Stamford, CT
Stuart S. Carruthers Stikeman Elliott, Toronto, Canada
Susan Grondine-Dauwer General Counsel, R&Q USA, Boston, MA
Thomas Freudenstein COO, GLOBAL Reinsurance Corporation of America and Director and Attorney at GLOBALE Rückversicherungs-AG, New York, NY and Cologne, Germany

Finally, I’d like to thank Richard D. Faulkner, a name partner at the Richardson, Texas-based firm of Blume, Faulkner, Skeen & Northam, who traveled all the way from the Dallas, Texas area to join me as a co-panelist on “The Judicial Scrutiny of Arbitration Awards” panel.   Rick — who was recently appointed Fifth Circuit appellate counsel for Michael Motor Company, Inc. in Dealer Computer Svcs., Inc. v. Michael Motor Co., No. H-10-2132, slip op. (S.D. Tex. December 29, 2010), appeal pending No. 11-20053 (5th Cir.) — is an experienced commercial litigator who handles commercial and insurance arbitrations here and abroad, a Chartered Institute of Arbitrators certified arbitrator in commercial and insurance cases, a frequently sought-after mediator, a member of the Texas House of Representatives Judiciary & Civil Jurisprudence Committee’s Arbitration Advisory Group, and a member of the International Institute for Conflict Prevention and Resolution (“CPR”)’s Arbitration Committee.  He was a contributing author to the American Bar Association publication, Elkouri & Elkouri, How Arbitration Works (6th Ed.), served as a trial judge in Louisiana, and is a former professor of Alternative Dispute Resolution law who has taught in Texas, England and Asia.

At the conference Rick and I discussed, among other things, some of the key differences between Scandinavian Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co., 732 F. Supp.2d 293 (S.D.N.Y. 2010), appeal pending No. 10-910-cv (2d Cir.), and Dealer Computer, both of which concern arbitrator nondisclosure of alleged conflicts of interest (Dealer Computer also raises arbitrator qualification issues governed by Section 10(a)(4) of the Federal Arbitration Act.)

We were very happy with the presentation, which was well-received by attendees and other faculty members.  It was quite an honor to share the podium with Rick, and I hope we’ll collaborate on future projects.

The Seventh Circuit Issues a Landmark Reinsurance Arbitration Opinion in Trustmark Ins. Co. v. John Hancock Life Ins. Co. (U.S.A.): Part II

February 24th, 2011 Arbitrability, Arbitration Agreements, Arbitration Practice and Procedure, Authority of Arbitrators, Evident Partiality, Practice and Procedure, United States Court of Appeals for the Fifth Circuit, United States Court of Appeals for the Second Circuit, United States Court of Appeals for the Seventh Circuit 1 Comment »

I.  Introduction

Part I (here) briefly discussed Chief Judge Frank H. Easterbrook’s decision in Trustmark Ins. Co. v. John Hancock Life Ins. Co. (U.S.A.), No. 09-3682, slip op. (7th Cir. Jan. 31, 2011), and its implications on the pending Second and Fifth Circuit appeals in  Scandinavian Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co, No. 09 Civ. 9531(SAS), 2010 WL 653481 (S.D.N.Y. Feb. 23, 2010), and Dealer Computer Svcs., Inc. v. Michael Motor Co., No. H-10-2132, slip op. (S.D. Tex. December 29, 2010).  This Part II examines in some detail Trustmark’s background and rationale, and Part III will focus on Trustmark’s implications on the Scandinavian Re and Dealer Computer appeals.

II.  Trustmark Background

The following facts were gleaned from both the district court and Seventh Circuit opinions (the district court opinion is reported at 680 F. Supp. 2d 944 and can be found here): Continue Reading »

The Seventh Circuit Issues a Landmark Reinsurance Arbitration Opinion in Trustmark Ins. Co. v. John Hancock Life Ins. Co. (U.S.A.)

February 23rd, 2011 Arbitration Practice and Procedure, Authority of Arbitrators, Evident Partiality, Grounds for Vacatur, Practice and Procedure, United States Court of Appeals for the Fifth Circuit, United States Court of Appeals for the Second Circuit, United States Court of Appeals for the Seventh Circuit 3 Comments »

Chief Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit is not only a brilliant judge, writer and law professor, but a master of (among many other things) arbitration law.  He understands better than most judges how commercial arbitration is supposed to work, what the Federal Arbitration Act is supposed to achieve, and how to implement the Act to ensure the parties get not only what they bargained for, but also the potential to realize the benefits that private, voluntary dispute resolution can offer.  His arbitration-law opinions are clearly written, imbued with common and commercial sense, and seem purposely designed to make sometimes elusive concepts readily understandable to courts, arbitrators, parties and counsel.  They tend to ensure that the objective, reasonable expectations of the parties are enforced, not frustrated.  Continue Reading »

Fifth Circuit Says District Court That Compelled Arbitration Does Not Have Inherent Power to Impose Sanctions on Counsel for Arbitration Misconduct

September 17th, 2010 Arbitration Practice and Procedure, Attorney Fees and Sanctions, Practice and Procedure, United States Court of Appeals for the Fifth Circuit No Comments »

Introduction

An arbitration panel acting under a broad, unrestricted arbitration agreement can generally impose sanctions on a party.  But if a federal district court compels arbitration, and retains jurisdiction, can it impose sanctions on counsel who allegedly misbehave during the arbitration proceedings?  On September 13, 2010 the United States Court of Appeals for the Fifth Circuit held 3-0 that the answer is “no,” unless the conduct was in direct defiance or disobedience of the district court’s orders or otherwise threatened the district court’s own judicial authority or proceedings.  See Positive Software Solutions Inc. v. New Century Mtg. Corp., No. 09-10355, slip op. (5th Cir. September 13, 2010). 

Background

Positive Software Solutions arose out of arbitration between Positive Software Solutions, Inc. and New Century Mortgage Corp.  A district court in Texas compelled arbitration and retained jurisdiction.  Positive Software lost, and sought to vacate the award on evident partiality grounds, which were ultimately rejected by the Fifth Circuit en bancSee Positive Software Solutions Inc. v. New Century Mtg. Corp., 476 F.3d 278 (5th Cir. 2007) (en banc).  After the Fifth Circuit remanded the award for confirmation, New Century declared bankruptcy, the parties settled, and the American Arbitration Association administratively closed the proceedings. 

As part of the settlement, New Century waived the attorney-client privilege, and turned over to Positive Software its arbitration files, which Positive Software would use in support of a motion in the district court for sanctions against New  Century’s arbitration counsel, Ophelia Camiña, a partner at Susman, Godfrey, LLP (“Susman Godfrey”); Susman Godfrey; and Barry Barnett (apparently another lawyer who represented New Century).   On March 2008 Positive Software filed its motion for sanctions pursuant to Fed. R. Civ. P. 37, 28 U.S.C. § 1927, and the court’s inherent power. 

In February 2009 the district court imposed pursuant to its inherent power $10,000 in sanctions against Camiña, which represented a portion of Positive Software’s attorney fees incurred during arbitration.  The district court ruled that the sanctions were for conduct that “took place in connection with the arbitration, not in connection with discovery under the Court’s supervision.” 

Camiña appealed, and the Fifth Circuit reversed. Continue Reading »

Guest Post: Hall Street Meets S. Maestri Place: What Standards of Review will the Fifth Circuit Apply to Arbitration Awards Under FAA Section 10(a)(4) after Citigroup?

May 4th, 2009 Awards, Grounds for Vacatur, Guest Posts, United States Court of Appeals for the Fifth Circuit 7 Comments »

Introduction

I am delighted to be invited to guest-blog today by Philip J. Loree Jr. of the Loree Reinsurance and Arbitration Law Forum.  I was thrilled that Phil jumped right on it when I suggested that we should guest-post on each others blogs in the near future. 

Phil did an outstanding job discussing the Arbitration Fairness Act of 2009 (read the post here) last week as a guest-blogger at Disputing.  He suggested that I  explore the topic of “manifest disregard of the law,” in light of the United States Supreme Court decision Hall Street Associates, LLC v. Mattel, Inc. 128 S.Ct. 1396 (2008), and the Fifth Circuit ruling in Citigroup Global Markets, Inc. v. Bacon, ___ F.3d ___ (5th Cir. 2009).  So, after conquering some initial, mild trepidation about my first guest-blogging experience, here I am.  Continue Reading »

Guest Blogger Victoria VanBuren Discusses the Role of Federal Arbitration Act Section 10(a)(4) After Citigroup Global Markets, Inc. v. Bacon

May 4th, 2009 Awards, Guest Posts, United States Court of Appeals for the Fifth Circuit 1 Comment »

Today we are honored and delighted to feature “Hall Street Meets S. Maestri Place: What Standards of Review will the Fifth Circuit Apply to Arbitration Awards Under FAA Section 10(a)(4) after Citigroup?”, a guest-blog post submitted by Victoria VanBuren, the blogmaster of Disputing, an excellent ADR blog.  We look forward to featuring more of her posts in the future. 

Victoria is an up and coming young attorney who works for Dispute Resolution Expert Karl Bayer.  Based in Austin, Texas, Karl’s team focuses on litigation, arbitration, and mediation of intellectual property, environmental, and health care disputes.  (Learn more about Karl Bayer’s practice here and read Victoria’s bio here.)  Victoria, a graduate of the University of Texas School Of Law, is currently pursuing a degree in computer science, and is a member of several ADR and other legal-services-oriented associations.  Victoria has done a wonderful job keeping Disputing loaded with up-to-date cases, legislation, and relevant articles on matters pertinent to arbitration and other forms of dispute resolution.  Her efforts are particularly impressive when you consider that she graduated from law school only a few years ago, is an active networker and business developer, and is pursuing a computer science degree on top of all of that.  Keep your eyes on this rising star! Continue Reading »



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