main image

Archive for December, 2009

« Older Entries

Acknowledging Some Kind Mentions from Our Fellow Bloggers

December 27th, 2009 General 4 Comments »

We are pleased and flattered to have recently received some kind mentions from some accomplished bloggers.  The Forum covers some fairly arcane, specialized subjects, and we do not expect to draw as large a following as we might otherwise.  So we are always happy when our efforts are noticed and mentioned by other bloggers, and take this opportunity to say “thanks.”  

First, our friend Chris Sherliker, a U.K. solicitor and blogmaster of the Silverman Sherliker Blog (here),  mentioned us in his excellent Blawgreview #243 submission, entitled “Fighting Back:  A Festive Meditation for Lawyers.”  Drawing inspiration from the likes of Winston Churchill, Chris discussed the importance of lawyers fighting the good fight.  Chris singled out a number of bloggers as fighters, including the Loree Reinsurance and Arbitration Law Forum:  “From the sublime to the subject of re-insurance and a particularly interesting blog by Philip J Loree Jr of Loree & Loree who is fighting back to ensure that the limits of arbitral power are kept within proper bounds. Fight on, brother.”  Thanks, Chris, and keep fighting the good fight on behalf of your clients!

Second, our friend Diane Levin, an accomplished mediator, veteran blogger and social media pro,  mentioned us in one of Mediation Channel’s recent Fallacious Arguments of the Month Posts, entitled “In Pursuit of the Red Herring.”  Diane characterized me as “a fierce defender of rational discourse and a highly insightful ADR blogger.”   Thanks Diane — you are far too kind!  You and your blog lead the fight for rational discourse here in the ADR world.  Fight on, sister! 

Third, our friend Tom Johansmeyer, professional writer and blogmaster of  the Reinsurance Blogger,  recently featured the Forum in his feature, “Four Reinsurance Blogs You Can’t Live Without.”    Tom said “The focus here is definitely on the legal side of the business, which means [the Loree Reinsurance and Arbitration Law Forum is].  .  . packed with important, though somewhat dense, information (at least for a simple marketing guy like me). But, if you’re watching reinsurance litigation and dispute resolution, it’s an absolute must-read.”  Tom, thanks so much for giving us the thumbs up! 

Fourth, as we mentioned in a recent post (here),  our friend John DeGroote, the blogmaster of Settlement Perspectives , sought and published our comments in his excellent article “Insurance Coverage: 4 Rules and 10 Tips for Policyholders.”  John, thanks again for thinking of and mentioning us! 

Finally, Akin Gump Strauss Hauer & Feld’s excellent SCOTUSBlog — one of our favorite legal blogs and a go-to source of information on United States Supreme Court litigation — mentioned us in its December 24, 2009 Thursday Round-up feature written by Rhoades Scholar Adam Chandler:  “Finally, at the Loree Reinsurance and Arbitration Law Forum, Philip J. Loree, Jr. offers a detailed analysis of the oral argument in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., a class action arbitration dispute that was argued on December 9.”   Thanks, Adam!

Stolt-Nielsen Oral Argument Analysis: Part III

December 23rd, 2009 Arbitrability, Authority of Arbitrators, Awards, Class Action Arbitration, Class Action Waivers, Consolidation of Arbitration Proceedings, United States Supreme Court 2 Comments »

On December 9, 2009 the United States Supreme Court held oral argument in Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (oral argument transcript here).  Stolt-Nielsen concerns whether class or consolidated arbitration may be imposed on parties whose contracts are silent on that point, and we have written extensively on it, including an ongoing series of guest-post articles for our friend Karl Bayer’s  Disputing blog.  (Posts available here,  here, here, here, here, here, here, here and here.)  

On December 16, 2009 we posted Part II of our analysis of the oral argument (Parts  I, here, Part II, here).   In this Part III we focus on what transpired with respect to the second of four key interrelated issues raised at oral argument and identified in Part I:  What exactly did the arbitrators decide?  Continue Reading »

Arbitration Nuts & Bolts: Vacating Arbitration Awards — Part II: Corruption, Fraud and Undue Means

December 19th, 2009 Awards, Grounds for Vacatur, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Uncategorized 5 Comments »

In this Part II of our Nuts & Bolt feature on vacating arbitration awards (Part I is here) we briefly look at the first statutory ground for vacating an award under the Federal Arbitration Act:  where “[t]he award was procured by corruption, fraud, or undue means. . . .”  9 U.S.C. 10(a)(1).  Cases vacating awards on Section 10(a)(1) are rare, probably because the circumstances that would trigger relief are themselves rare.     

Section 10(a)(1) is an excellent expression of how Section 10 is designed to provide relief in situations where putting a court’s  imprimatur on an award would deprive one of the parties of the benefit of its freely-bargained-for arbitration agreement.   It says that corruption, fraud, or undue means in the procurement of an award, whether perpetrated by the arbitrators or a party, spoils the award (assuming the aggrieved party timely moves to vacate).  There is nothing particularly controversial about that; we suspect few would contend that parties who agree to arbitrate impliedly consent to arbitration resulting in an award procured through outright chicanery.    Continue Reading »

Interesting Article on Arbitrator Power to Retain Jurisdiction

December 17th, 2009 Association of Insurance and Reinsurance Run-Off Companies (AIRROC), Authority of Arbitrators, Awards, Commercial and Industry Arbitration and Mediation Group, Functus Officio, Grounds for Vacatur Comments Off on Interesting Article on Arbitrator Power to Retain Jurisdiction

On June 28, 2009 we published a post concerning an article we wrote for AIRROC Matters about KX Reinsurance Co. v. General Reinsurance Corp., 08 Civ. 7807 (SAS), 2008 WL 4904882 (S.D.N.Y. Nov. 18, 2008) (Scheindlin, J.), where the court held that an arbitration panel exceeded its authority when, after resolving all the issues the parties submitted, it nevertheless retained jurisdiction.  A copy of our post is here. 

Around the time we published that post, my friend, colleague and fellow LinkedIn Commercial and Industry Arbitration and Mediation Group member, Theresa Hajost, told me that she had an article in the works that would treat in a very comprehensive fashion the issue of arbitrator authority to retain jurisdiction.  (For those of you who do not already know her, Theresa is a partner at the Washington, D.C. office of Halloran & Sage LLP, where she practices insurance and reinsurance litigation and arbitration.)  I thought that was a great idea and told her so. 

Theresa recently published the article, Does An Arbitrator’s Retention of Jurisdiction After The Issuance of a Final Award Subject That Award To Vacatur?,  in ADR Choices (Volume I Issue 10) (published by DRI).  We highly recommend it as it surveys and discusses cases from all over the country on the issue of an arbitrator’s authority to retain jurisdiction, organizes those cases into helpful categories and offers  insightful comments on the subject.  It is an excellent resource for anyone who is interested in arbitral power, or who is confronted with a scenario where there is a question concerning an arbitration panel’s authority to remain constituted post award.  You can read the article using the link Halloran & Sage has kindly provided here.

Great job, Theresa!

Stolt-Nielsen Oral Argument Analysis: Part II

December 16th, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, Class Action Waivers, Consolidation of Arbitration Proceedings, United States Supreme Court 3 Comments »

Introduction

On December 9, 2009 the United States Supreme Court held oral argument in Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (oral argument transcript here).  Stolt-Nielsen concerns whether class or consolidated arbitration may be imposed on parties whose contracts are silent on that point, and we have written extensively on it, including a series of guest-post articles for the Disputing blog.  (Posts available here,  here, here, here, here, here, here, here and here.)  

Former Solicitor General Seth Waxman, a partner of the prestigious law firm of Wilmer Cutler Pickering Hale & Dorr LLP, and Chair of the firm’s Appellate and Supreme Court Litigation Practice Group, represented the Stolt-Nielsen petitioners before the Court (Mr. Waxman’s bio is here).  Georgetown University Law Center Professor Cornelia T.L. Pillard represented respondent AnimalFeeds.  (Professor Pillard also represented the Bazzle respondents in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003)).  Both attorneys did a very admirable job of presenting their cases on behalf of their clients. 

On December 13, 2009  we posted Part I of our analysis of the oral argument (Part I here).   In this Part II we focus on what transpired with respect to the first of the four key, interrelated issues raised by the Justices and identified in Part I:  The scope of the submission and the corresponding scope of the arbitrators’ authority.  We shall address the remaining three in one or more future posts.  Continue Reading »

Some Helpful Rules and Tips for Policyholders and Cedents Courtesy of Settlement Perspectives

December 15th, 2009 Commercial and Industry Arbitration and Mediation Group, Follow-the-Settlements/Follow-the Fortunes, General, Negotiation, Reinsurance Allocation, Reinsurance Claims 1 Comment »

Our friend, colleague and fellow Commercial and Industry Arbitration and Mediation Group member, John DeGroote, has written and published in his Settlement Perspectives blog an excellent article offering some very practical and sound guidance to corporate policyholders who are confronted with litigation that may fall within the scope of their liability insurance, and who desire to increase the odds of securing coverage.   John, who is President, Chief Legal Officer and Secretary of management and technology consulting firm BearingPoint, Inc. (formerly KPMG Consulting), was kind enough to seek our input on the article.  It is entitled Insurance Coverage: 4 Rules and 10 Tips for Policyholders, and features a link to a longer, more detailed article John co-wrote on the same subject for an Association of Corporate Counsel  (“ACC”) publication. 

When I read John’s draft the first thing that struck me was that the rules and tips he offers are, for all intents and purposes, applicable to cedents pursuing reinsurance recoveries.  He stresses, among other things, the importance of honesty, good faith, open communication and not colluding with the claimant in an effort to obtain coverage.  These attributes are ones to which diligent, ceded claims personnel should aspire in their dealings with their company’s reinsurers, because they tend to increase the odds of achieving a successful recovery and avoiding time-consuming and expensive reinsurance disputes (all other things being equal). 

John was also kind enough to quote my comments in his article, which are reproduced below: 

As I discussed these rules with Philip J. Loree Jr. at the Loree Reinsurance and Arbitration Law Forum the other day, I learned that they don’t only apply to policyholders –  apparently insurers must live by these same rules to collect from their reinsurers:

You would be surprised how frequently reinsurers contend that the carrier colluded with the policyholder in direct insurance coverage litigation.  If the reinsurer can establish collusion concerning the fact, amount or allocation of coverage, or if the reinsurer otherwise shows that the carrier acted in bad faith, then the reinsurer will usually be relieved of liability for the claim.  Like policyholders making direct insurance claims, carriers making reinsurance claims need to avoid even the appearance of collusion or bad faith, and following rules analogous to yours helps them do that.

Whether you happen to be a corporate or individual policyholder, or a cedent wishing to increase the odds of successfully collecting from reinsurers, John’s fine article comes highly recommended.   In fact if you are at all interested in settlement and ADR, we highly recommend that you follow Settlement Perspectives.  John writes high-quality, insightful and practical  articles on a variety of pertinent topics.  Who could ask for more?

Stolt-Nielsen Oral Argument Analysis: Part I

December 13th, 2009 Authority of Arbitrators, Awards, Class Action Arbitration, Class Action Waivers, Consolidation of Arbitration Proceedings, Practice and Procedure, United States Supreme Court 5 Comments »

On December 9, 2009 the United States Supreme Court heard oral argument in the one Federal Arbitration Act case it has agreed to review this Term:  Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (oral argument transcript here).  Stolt-Nielsen concerns whether class or consolidated arbitration may be imposed on parties whose contracts are silent on that point, and we have written extensively about the case, including a series of guest-post articles for the Disputing blog.  (Posts available here,  here, here, here, here, here, here, here and here.)

This multi-part post considers what transpired at oral argument and provides our take on it.  Familiarity with the background facts is presumed and, if necessary, can be gleaned here, here, and here.  Continue Reading »

United States Supreme Court Update: Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers & Trainmen (08-604)

December 10th, 2009 Labor Arbitration, United States Supreme Court Comments Off on United States Supreme Court Update: Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers & Trainmen (08-604)

On October 11, 2009 we reported on two labor arbitration cases pending before the United States Supreme Court:  Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers & Trainmen (08-604) (arising under the Railway Labor Act (“RLA”), 45 U.S.C. §§151 et seq.) and Granite Rock Co. v. International Brotherhood of Teamsters (08-1214) (arising under Labor Management Relations Act (“LMRA”) Section 301).  (Post here)  On December 8, 2009 the Supreme Court issued its unanimous opinion in Union Pacific (here).

The Court affirmed the decision of the United States Court of Appeals for the Seventh Circuit to the extent it held that the National Railroad Adjustment Board (the “Board”)  failed “to conform or confine” its orders “to matters within … the [Board’s] jurisdiction.  .  .  .”  See 45 U.S.C. § 153 First (q).  As readers may recall from our previous post, the Board had denied for lack of subject matter jurisdiction certain employee grievance claims on the ground that the claimants had not complied with a Board rule requiring them to prove that the pre-grievance, statutory requirement of a “conference” between the parties had been met, even though there was no bona fide dispute that conferences had taken place.  See 45 U.S.C. §§ 152.  The Seventh Circuit ruled that the Board not only acted outside its jurisdiction, but violated due process.  The Court ruled that the Seventh Circuit should not have reached the due process question, including whether an RLA arbitration award can be overturned solely on the ground that it violated due process.  

As we observed in our October 11, 2009 post, Union Pacific is not a contractual arbitration case, but effectively an administrative law one, and the Court’s ruling will likely have little or no effect on Federal Arbitration Act jurisprudence.  The Granite Rock case – which does involve contractual arbitration, albeit under Section 301 of the LMRA – is still pending before the Court, with oral argument slated for January 19, 2009.

Oral Argument Today in Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp.

December 9th, 2009 Uncategorized 2 Comments »

Today the United States Supreme Court is hearing argument in the one Federal Arbitration Act case it has agreed to hear this Term:  Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198).  We have written extensively on Stolt-Nielsen, which concerns whether class arbitration may be imposed on parties whose contracts are silent on that point.  (Posts available here,  here, here, here, here, here, here, here and here.) Once the oral argument transcript is available, and we have time to digest it, we shall report back to readers.

Stay tuned….

Arbitration Nuts & Bolts: Vacating Arbitration Awards — It’s All in the Agreement

December 8th, 2009 Awards, Grounds for Vacatur, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Reinsurance Arbitration 2 Comments »

Part I:  Introduction

An arbitration award is effectively a contract resulting from a contract.  Two parties agree to appoint arbitrators, submit their dispute to arbitration and abide by the award.  The parties ordinarily consent to entry of judgment on the award, and it can be confirmed under Section 9 of the Federal Arbitration Act (or a state law equivalent when the Federal Arbitration Act doesn’t apply).  Alternatively it may be enforced through the plenary and summary  procedures applicable to ordinary contracts (subject to any special rules governing arbitration awards).  

So what happens when things go awry — or at least seem to have gone awry — and the arbitration award is or appears to be fundamentally unfair, divorced from the contract or the result of fraud, bias, or some form of prejudicial misconduct on the part of the arbitrators?  Section 10 of the Federal Arbitration Act provides a safety net in the form of a motion or petition  to vacate the award.  (State arbitration statutes and law applicable in actions to enforce arbitration awards generally provide similar recourse, but our focus here is on the Federal Arbitration Act.) Continue Reading »

« Older Entries