Arbitrators are human and occasionally they make awards that cannot be squared with logic and law, and courts may, in appropriate circumstances, vacate those awards as being in manifest the agreement, or in some circuits, in manifest disregard of the law. The U.S. Court of Appeals for the Second Circuit considered such an award in Weiss v. Sallie Mae, Inc., ___ F.3d ___, No. 18-2362, slip op. (Sept. 12, 2019), and solved the problem in a way that imposed minimal costs and delay on the parties and, at the same time, gave effect to the parties’ reasonable contractual expectations, including that the arbitrator would make an award with a colorable basis in the law or the parties’ agreement, not one in manifest disregard of the law or the agreement. It is therefore a good example of a case that promotes arbitration as an alternative to litigation.
Background
W is a student-loan borrower who in 2011 defaulted on a loan issued by S (N is the successor of S, but we shall refer to both as “S”). W gave S her phone number (“Phone Number 1”) when she obtained the loan and consented to S contacting her via an automatic telephone dialing system (“ATDS”). S made ATDS calls to her using Phone Number 1 prior to her default on the loan in 2011.
Also prior to her 2011 default W obtained a second telephone number (“Phone Number 2”) but did not give S consent to contact her on that number via an ATDS.
After W’s 2011 default, S contacted W seven or eight times a day at Phone Number 2 via an ATDS, attempting to collect the debt. S made 774 ATDS calls to Phone Number 2 during the period September 16, 2011 through July 1, 2013.
The Arbitration
A dispute arose between W and S about whether S’s ATDS calls had violated the Telephone Consumer Protection Act (“TCPA”) and W commenced an action in the U.S. District Court for the Western District of New York. The action was stayed after the parties stipulated to arbitration pursuant to an arbitration agreement in a student-loan promissory note.
The Award: Was it in Manifest Disregard of the Law or the Agreement?
Following a hearing an arbitrator made an award granting W $108,000 in statutory damages under the TCPA. But the award held that W was a class member in a class action that S had settled. The class-action settlement (the “Arthur Settlement”) “included as a class member, ‘any person who received ATDS calls from [S] between October 27, 2005 and September 14, 2010.’” Slip op. at 5 (citation omitted).
W did not contend that the calls S made to Phone Number 1 violated the TCPA (W had consented to those calls), and W contended that, accordingly, she was not bound by the settlement, even though she had received ATDS on Phone Number 1 during the specified period. The arbitrator, however, found that argument “‘unpersuasive,’” and “ruled that Weiss was a class member and that ‘the proof was conclusive that [S] provided [W] with the required notice of the settlement and of her rights and obligations under the terms of the settlement.’” Slip op. at 5-6 (citation omitted).
The Arthur Settlement “notice offered class members the opportunity to file a ‘consent Revocation’ document by September 15, 2012; absent such a filing, ‘the ATDS calls would not stop and the borrower’s prior consent to give them [sic] would be deemed to have been given.’” Slip op. at 6 (citation omitted; bracketed text in original).
While W contended that she was not aware of the Arthur Settlement, S testified that notice was successfully emailed to W.
The agreement implementing the Arthur Settlement featured a general release, “under which class members were ‘deemed to have fully released and forever discharged [S]’. . . from any and all claims and causes of action, inter alia, ‘that arise out of or are related in any way to the use of an [ATDS]. . . used by any of the Released Parties in connection with efforts to contact or attempt to contact Settlement Class Members including, but not limited to, claims under or for violations of the [TCPA].’” Slip op. at 6 (citations omitted; some bracketed text in original).
Even though the general release, to which the arbitrator determined W was bound, deemed W to have “waived ‘any and all’ TCPA claims effective the date of final judgment in the Arthur Settlement action[,]” the arbitrator’s award did not acknowledge the existence of that release. Slip op. at 6-7. “Instead,” said the Court, “the arbitrator interpreted [W]’s failure to submit a consent revocation pursuant to the Arthur class notice as precluding recovery for any calls placed to [Phone Number 2] after the September 15, 2012 deadline but also as permitting recovery for ATDS calls placed to [Phone Number 2] between September 6, 2011, and September 16, 2012.” Slip op. at 7.
The arbitrator awarded TCPA statutory damages in the amount of $108,500 ($500 per call for 217 calls during the applicable period). W moved to confirm the award and S cross-moved to vacate it.
The district court vacated the award, finding that “by neglecting to ‘apply—or even address—an explicit, unambiguous term of the settlement agreement,’ which “clearly and unambiguously bars recovery for claims until and including the date of the agreement,’ the arbitrator manifestly disregarded the law.” Slip op. at 7. W appealed.
The Second Circuit Decision: Remand to Arbitrator to Permit Him to Make an Award not in Manifest Disregard of the Law or the Agreement
The Second Circuit agreed with much of the district court’s reasoning but disagreed on the remedy. Instead of vacating the award outright on the manifest disregard of the law or manifest disregard of the agreement grounds, the Second Circuit vacated the district court’s judgment and remanded the case to the district court with instructions to the district court to remand the matter to the arbitrator with instructions to clarify whether the class notice was or was not sufficient and, if determined to be sufficient, then to construe the general release provision in the first instance and to vacate or modify the arbitral award if necessary.” Slip op. at 14 (citation omitted). “The arbitrator,” said the Court, “shall be instructed either to interpret and apply the terms of the Arthur Settlement agreement’s general release provision or to explain why that provision does not bar [W’s] claims.” Slip op. at 15.
The Second Circuit also provided for streamlined district court, and if necessary, appellate, review of the arbitrator’s decision after remand, providing that “the district court shall thereafter rule on any subsequent objections to the arbitrator’s decision, which objections may be advanced by appropriate motion of either party.” Slip op. at 15. “Any appeal from the district court’s decision. . . ,” explained the Court, “may be advanced by letter notice to the Clerk of this Court without necessity of filing a new notice of appeal, and that appeal shall be assigned to this panel.”
The Second Circuit’s Rationale for its Decision: Arbitrator’s Failure to even Mention General Release Made it Impossible to Determine whether Award Colorably based in Contract or in Manifest Disregard of the Law/Manifest Disregard of the Agreement
The Court explained that “the arbitrator construed the Arthur class notice as establishing [W]’s consent to receive future ATDS calls, but he determined that such consent could not be applied retroactively to bar her recovery for calls placed prior to the revocation deadline.” Slip op. at 10. W made two arguments in an effort to justify the arbitrator’s decision: (a) the arbitrator interpreted the Arthur Settlement class notice and an arbitrator’s “misinterpretation of what amounts to a contractual provision does not provide sufficient grounds for vacatur under the FAA[]”; and (b) the class notice was not binding on her because it failed to “satisfy due process[,]” an argument that was essentially a “collateral attack on the sufficiency of” the notice. Slip op. at 11.
While the legal premise of W’s first argument was correct—”interpretation of the contract terms is within the province of the arbitrator and will not be overruled simply because [the Court] disagree[s] with that interpretation[,]” slip op. at 11 (citations and quotations omitted)—as the district court concluded, “‘this [was] not a case where the arbitrator’s interpretation of the contract was simply incorrect’ as ‘the arbitrator’s decision here ignored and contradicted an unambiguous term of the agreement[,]” that is, “the general release embodied in the Arthur Settlement.” Slip op. at 11.
For “even if the arbitrator believed that the class notice entitled [W] to recover for ATDS calls made prior to the consent revocation deadline, it is impossible to square that conclusion with the general release provision[,]” which “bar[s] [W]’s recovery for ‘any and all’ TCPA claims.” Slip op. at 11-12. The Court said that is “especially true given that the parties agreed in their arbitration agreement that ‘[t]he arbitrator shall follow applicable substantive law to the extent consistent with the FAA.” Slip op. at 12.
“Because,” concluded the Court, “the arbitrator did not even mention the release in his decision, we are unable to ascertain from the record whether the arbitrator in fact based his decision on the four corners of the Arthur Settlement agreement and its accompanying class notice, as [W] appears to contend, or whether he instead discarded the agreement in favor of his own policy preferences.’” Slip op. at 12. (quoting Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671-72 (2010).
As respects W’s argument (b), concerning class notice sufficiency, the “arbitrator expressly found that despite some of the ‘confusing’ terms of the Arthur Settlement agreement, ‘the proof was conclusive’ that [W] received ‘the required notice of the settlement and of her rights and obligations under the terms of the settlement.’” Slip op. at 12 (citation omitted). But the arbitrator “appeared to base his award on the fact that the class notice only apprised [W] of her consent to receive a subset of ATDS—those placed prospectively.”
“If. . . the arbitrator,” said the Court, “were of the view that the class notice did not satisfy due process, as [W] contends, then the arbitrator, in following applicable substantive law, would seemingly be obliged to hold that [W] could not be bound by any of the Arthur Settlement terms.” Slip op. at 12-13 (citation omitted).
The notice issue “is an all-or-nothing inquiry[,]” but “[i]nstead the arbitrator’s finding that the class notice ‘does not state that the recipient (i.e., [W]) will be deemed to have given prior consent to the making of calls by [S]’ appears to rest on a parsing of the applicable law grounded neither in a constitutional due process analysis nor in a faithful exercise in contract interpretation.” Slip op. at 13 (citation omitted). That would mean the award was both in manifest disregard of the law and in manifest disregard of the agreement.
The Court said its “concern [was] reinforced by” where in the arbitrator’s opinion the discussions of notice of settlement versus express and implied consent to ATDS calls appeared. Slip op. at 13. The discussion of settlement notice was “addressed up front as the first of the ‘issues considered’ by the arbitrator.” Slip op. at 13. The issues of express and implied consent to calls were discussed in subsequent “separate sections of the arbitrator’s opinion that address the merits of [S]’s defense to [W]’s TCPA claims.” Slip op. at 13.
But “[o]nce the arbitrator made the determination that ‘Weiss was adequately advised of the terms of the settlement and of the requirement that she revoke any consent given to [S] to place ATDS calls to [Phone Number 2],’ that conclusion would seem to obviate not only the arbitrator’s subsequent analysis concerning whether [S] had met its burden of proving Weiss’s consent but also any further determination as to the effect of the class notice.” Slip op. at 13-14. Put differently, “if the arbitrator intended to deem the class notice insufficient, he did not say so in his threshold analysis regarding the settlement’s applicability and strongly implied the opposite.” Slip op. at 14.
Because of the award’s “incoherence,” and because the Court could not determine adequately whether the arbitrator based his decision on the class notice and Arthur Settlement agreement terms, the Court vacated the district court’s decision and remanded the case to the district court with directions to remand to the arbitrator “to construe the general release in the Arthur Settlement in the first instance and, if necessary, to vacate or modify the arbitral award.” Slip op. at 15.
Want to learn more about manifest disregard of the agreement and manifest disregard of the law? Read here, here, here, here, here, here, here, and here.
Photo Acknowledgments
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Tags: ATDS, Automatic Telephone Dialing System, Class Action Settlement, Disregard of the Law, General Release, Ignore Contract Term, Manifest Disregard, Remand to Arbitrator, Second Circuit, Settlement, Stolt Nielsen S.A. v. Animalfeeds Int'l Corp., TCPA, Telephone Consumer Protection Act
