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Archive for December, 2014

Federal Arbitration Act Litigation Procedure Blog Posts on Final Arbitration Awards

December 30th, 2014 Arbitration and Mediation FAQs, Arbitration Practice and Procedure, Awards, Confirmation of Awards, Functus Officio, Grounds for Vacatur, Judicial Review of Arbitration Awards, Loree & Loree Arbitration-Law Blogs, Nuts & Bolts, Nuts & Bolts: Arbitration, United States Supreme Court Comments Off on Federal Arbitration Act Litigation Procedure Blog Posts on Final Arbitration Awards

Back when we began posting in 2009 we published a “Nuts & Bolts”  series post about final arbitration awards, which you can read here. Interestingly, enough, that post, according to Google Analytics statistics, is one of the (if not the) most popular post we’ve ever published.

That may seem a bit strange, but it’s really not. Whether or not an arbitration award is a final arbitration award bears on a number of important issues, including whether the award can be confirmed, vacated, modified or corrected, and whether it is a decision that the arbitrators have the authority to revisit. And whether or not an arbitration award can be confirmed, vacated, modified or corrected before the conclusion of an ongoing arbitration proceeding has obvious time-bar consequences in light of the short limitation periods for confirming, vacating, modifying and correcting awards: to avoid forfeiture, it may be necessary to commence post-award Federal Arbitration Act enforcement proceedings before the arbitration proceeding has concluded. (See Loree Reins. & Arb. L. Forum posts here & here.)

Given the recent launch of  the Federal Arbitration Act Litigation Procedure Blog, and the need to start posting what we hope will be interesting and useful material, we decided to kick-off with the finality topic. Earlier today we published the first  segment of the series Federal Arbitration Act Finality: Is this Arbitration Decision a Final Award, An Interim Final Award, a Partial Award, a Partial Final Award or. . . What??, which you can read here.

That post outlines the topic and describes a hypothetical arbitration that gives rise to five types of awards and rulings, four of which are issued prior to the award that concludes the arbitration. Future posts  will discuss whether or not each type of award is, or may in some circumstances be, a final arbitration award for  purposes of Chapter 1 of the Federal Arbitration Act.

Another thing we’ll discuss will be the affect, if any, of Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) on the final award issue. Of all the many issues discussed in the Stolt-Nielsen case the one we hear relatively little commentary about is the Supreme Court’s rejection of the dissent’s argument that the class-arbitration consent award was not ripe for judicial review.  See 559 U.S. at 667 n.2. As part of the Federal Arbitration Act Litigation Procedure Blog final-award series, we’ll consider that aspect of the Supreme Court’s ruling and its relevance to the question whether a partial award can be a partial final award if the parties consent.

And unless we  somehow feel compelled  to publish yet another post this year, we’d like to take this opportunity to wish everyone a happy and prosperous New Year!

Philip J. Loree Jr.

 

New Arbitration Award Practice Blog Posts on Arbitrators Exceeding their Powers under the Federal Arbitration Act

December 27th, 2014 Arbitrability, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Practice and Procedure, Grounds for Vacatur, Loree & Loree Arbitration-Law Blogs, Small Business B-2-B Arbitration Comments Off on New Arbitration Award Practice Blog Posts on Arbitrators Exceeding their Powers under the Federal Arbitration Act

We’ve posted in the Arbitration Award Practice Blog the first two posts of a series concerning arbitrators exceeding their powers under  the Federal Arbitration Act in circumstances where they make awards against persons who are not parties to the pre-dispute arbitration agreement that precipitated the arbitration:

  1. Do Arbitrators Exceed their Powers by Imposing Liability on Corporate Officers who were not Parties to the Arbitration Agreement?
  2. Do Arbitrators Exceed their Powers by Imposing Liability on Corporate Officers who were not Parties to the Arbitration Agreement?—Part II

These posts are designed to illustrate to persons learning about arbitration law basics a point that more experienced practitioners know all-too-well: arbitration law can be counterintutive, and even its relatively straightforward general rules or principles do not apply to all factual scenarios.

For example, under the Federal Arbitration Act the answer to question posed by the articles: “it depends.” If a corporate officer participated in the arbitration solely as a party representative; nobody demanded, requested, argued or suggested that the corporate officer should have been deemed a party; and the corporate officer did not request in his individual capacity relief from the arbitration panel, then the arbitrators would be exceeding their powers were they to make an award against the corporate officer.

But as a general rule, arbitrators do not, on their own motion, award relief to or impose liability on persons who are not parties to the arbitration agreement. But see NCR Corp. v. Sac-Co., Inc., 43 F. 3d 1076,  1080 (6th Cir. 1995) (arbitrator ordered punitive damages to non-parties even though neither party requested such relief). While arbitrators occasionally do render awards granting relief to or against arbitration agreement nonsignatories, usually that occurs only when someone has requested such relief.

That’s what happened, for example, in Stone v. Theatrical Investment Corp., No. 14 Civ. 6494 (PAE), slip op. at 1, 8-9 (S.D.N.Y. Dec. 2, 2014). Stone was a contract dispute between two parties A, a trust, represented by its trustee, and B, a corporation. A demanded arbitration against B under the contract’s pre-dispute arbitration agreement, but also demanded arbitration against B’s CEO, asserting that the arbitrator should pierce the corporate veil and hold the CEO jointly and severally liable for the corporation’s alleged breach of contract. The CEO participated in the arbitration as a party representative for B, but never informed the arbitrator that it objected to her jurisdiction to award relief to him. In addition, the CEO requested the arbitrator to grant him relief in his individual capacity.

Not surprisingly, the general rule did not apply in Stone, a point we discuss briefly in the second of the two Arbitration Award Practice Blog posts. In fact it seems odd that the CEO moved to  vacate the award against it on the ground that he did not agree to arbitrate the dispute. It suggests (but certainly does not establish) that perhaps the CEO thought he could make the argument he did despite the arbitration strategy he chose to purse. We do not know whether that is so, however, and there might be other reasons why the CEO opted to pursue that strategy.

Assuming that the CEO did not wish to arbitrate the veil-piercing claim there was much he could have done to ensure a judicial determination of that matter. And that’s something we’ll address in a future post in the Arbitration Award Practice Blog.

 

Loree & Loree Launches Federal Arbitration Act Litigation Website and Federal Arbitration Act Litigation Procedure Blog

December 22nd, 2014 Loree & Loree Arbitration-Law Blogs Comments Off on Loree & Loree Launches Federal Arbitration Act Litigation Website and Federal Arbitration Act Litigation Procedure Blog

This week Loree & Loree launched its Federal Arbitration Act Litigation Website and Federal Arbitration Act Litigation Procedure Blog. The website is designed to highlight the services Loree & Loree offers as respects representing individuals, businesspersons and business entities in Federal Arbitration Act litigation in federal and state courts as part of our arbitration and arbitration law practice. It also, however, sets forth some general information about arbitration law and the Federal Arbitration Act, which may be useful or at least of interest to persons who may never have a need to engage our services. And the blog of course, is designed to impart yet more general information of interest pertinent to Federal Arbitration Act litigation procedure.

Some Useful Information on the  Federal Arbitration Act

Here’s a list of Federal Arbitration Act Litigation Website pages that provide some information about Federal Arbitration Act litigation:

  1.  Arbitration Law and Why it’s so Important
  2.  The Federal Arbitration Act
  3.  Purposes and Objectives of the Federal Arbitration Act
  4.  Federal Arbitration Act Litigation

 

Readers may already know that Loree & Loree has, since the first half of 2009, a firm website, which can be accessed at http://www.loreelawfirm.com. It is the site to which this blog, the Loree Reinsurance and Arbitration Law  Forum,is attached, which is why the URL is http://www.loreelawfirm.com/blog.

Earlier this month we added the Arbitration Award Enforcement Practice Website to highlight the award enforcement services we provide clients as part of our arbitration and arbitration law practice, and, as part of  that site, launched the Arbitration Award Practice Blog, which we discussed in our last Forum post, here. Our new  Federal Arbitration Act Litigation Website, and its accompanying Federal Arbitration Act Litigation Procedure Blog serves similar purposes, but with a focus that is both broader and narrower than Arbitration Award Enforcement Practice Website and its Arbitration Award Practice Blog.

Federal Arbitration Act Litigation Website and Blog

Compared to Arbitration Award Enforcement Practice Website and Blog

The Federal Arbitration Act Litigation Website and the Federal Arbitration Act Litigation Procedure Blog are broader in the sense that they concern not only the indirect enforcement of arbitration agreements by enforcing awards (enforce means to give effect to, so vacating an award in whole or in part is as much a part of the enforcement process as confirming it), but also concerns the direct enforcement of arbitration agreements through petitions and applications to compel arbitration, stay litigation, appoint arbitrators and enforce arbitral subpoenas. They are also narrower in focus because they are principally directed at Federal Arbitration Act governed agreements and awards, rather than also including awards or agreements governed by Section 301 of the Labor Management Relations Act or by state arbitration law only.

The Federal Arbitration Act Litigation Procedure Blog is even narrower than its companion website because it is focused on the procedural aspects of Federal Arbitration Act litigation. We’ve discussed Federal Arbitration Act litigation procedure in this blog before, but it is one of those subjects that is not only critically important to anyone seeking relief under the Federal Arbitration Act in federal or state court, but one about which many lawyers seem to know very little. And that’s unfortunate because Federal Arbitration Act litigation has more than its fair share of procedural land mines.

Like the Arbitration Award Practice Blog, the Federal Arbitration Act Litigation Procedure Blog will use a “Nuts & Bolts” or “FAQs” format. Our goal is to publish plain-English articles addressing pertinent arbitration-law related topics. Generally, extensive background knowledge will not be presumed, although having at least some knowledge of litigation-procedure basics will certainly help readers to appreciate more fully some of the finer points raised. The goal is to publish articles that will appeal to an audience whose experience with arbitration and arbitration law covers a broad spectrum.

 

Enjoy!

 

Loree & Loree Launches Arbitration Award Enforcement Practice Website and Arbitration Award Practice Blog, which will focus on Federal Arbitration Act Arbitration Award Enforcement

December 17th, 2014 Awards, Loree & Loree Arbitration-Law Blogs Comments Off on Loree & Loree Launches Arbitration Award Enforcement Practice Website and Arbitration Award Practice Blog, which will focus on Federal Arbitration Act Arbitration Award Enforcement

Last week Loree & Loree launched its Arbitration Award Enforcement Practice Website, which is designed to highlight the award enforcement and challenge services we offer as part of our arbitration and arbitration law practice (referred to in our website as our Arbitration Law, Practice & Procedure practice, but what’s in a name?). As part and parcel of that, the website also provides what we hope will be some useful general information about the Federal Arbitration Act and proceedings to confirm, vacate, modify or correct arbitration awards.

We used a WordPress platform to create, and continue to use it to maintain, the site, and WordPress makes it pretty easy to make a blog part of the site, so we of course could not resist the opportunity to create a blog that is limited to the limited subject matter of the site itself: Federal Arbitration Act and state arbitration law award enforcement practice, a topic we’ve blogged a lot out about here at the Forum since 2009. The new blog is the Arbitration Award Practice Blog. Continue Reading »

One Per Occurrence Limit per Policy Period or One Per Occurrence Limit . . . Period? — New York Court of Appeals Reaffirms Noncumulation Clause Means what it Says  

December 2nd, 2014 Accumulation of Loss, Allocation, Allocation of Settlements, Anti-Stacking Provisions, Certificate or Treaty Limits, Claims Handling, Definition of Occurrence, Environmental Contamination Claims, Insurance Contracts, Insurance Coverage, Lead Paint Claims, New York Court of Appeals, New York State Courts, Noncumulation Clauses, Nuts & Bolts, Nuts & Bolts: Reinsurance, Reinsurance Allocation, Reinsurance Claims, Timing and Number of Occurrences, Trigger of Coverage Comments Off on One Per Occurrence Limit per Policy Period or One Per Occurrence Limit . . . Period? — New York Court of Appeals Reaffirms Noncumulation Clause Means what it Says  

Introduction

Liability insurance policies written on a per occurrence basis generally provide coverage for losses that occur during the policy period and arise out of an “occurrence.” In general (and subject to policy definitions) “occurrence” means not only a temporally discrete accident or event, but also “continuous exposure” to the same harmful conditions. Such “continuous exposure” may occur during more than one consecutive policy period and cause what is, for all intents and purposes, indivisible, continuing injury or property damage. Examples of that type of continuous exposure resulting in continuing injury or damage include, among others, exposure of tenants to cracked or peeling lead paint in an apartment building for a period of years, exposure of persons to asbestos products, or exposure of groundwater to hazardous waste over a period of years, resulting in liability for clean-up costs under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) (a/k/a “Superfund”).

Issues concerning the timing and number of occurrences, and per-policy allocation of loss, are particularly important in coverage cases where continuous exposure to conditions spans multiple policy periods and causes continuing, indivisible injury or property damage during those periods. The liability insurer’s indemnity obligation is limited to a specified limit per occurrence. In a continuous exposure case, the “occurrence” happens continuously over a period during which multiple consecutive policies are in effect.. There is one occurrence—sometimes referred to as a “continuing occurrence”—but it takes place during each of several consecutive policy periods. Does that mean that the insurer is obligated to pay a maximum of one per occurrence limit for all loss that occurs during its total coverage period, irrespective of how many policies it issued during that period, or must it pay up to one per occurrence limit per policy for whatever portion of the loss falls, or is deemed to fall, within that policy?

The answer to that question can have significant economic consequences for the liability insurer, and, of course, its reinsurers. If a liability insurer issues a landlord three, consecutive one-year-term policies with per occurrence limits of $X, and a tenant sustains injury attributable to continuous exposure to cracked or peeling lead paint, then, all else equal, the answer will determine whether the insurer’s maximum total indemnity obligation is $X or three-times that amount ($X multiplied by the number of policies involved).

Continue Reading »