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Appointing Arbitrators | Businessperson’s Federal Arbitration Act FAQ Guide | Nuts and Bolts of Pre-Award Federal Arbitration Act Practice

April 29th, 2020 Application to Appoint Arbitrator, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Arbitrator Selection and Qualification Provisions, Businessperson's FAQ Guide to the Federal Arbitration Act, FAA Chapter 1, Federal Arbitration Act Section 5, First Principle - Consent not Coercion, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Section 5, Small Business B-2-B Arbitration 1 Comment »

Chapter One of the Federal Arbitration Act enforces arbitration agreements during the pre-award stage by authorizing orders: (a) staying litigation of arbitrable claims; (b) compelling arbitration; (c) appointing one or more arbitrators; and (d) enforcing arbitral hearing subpoenas. We’ve discussed the basics of the first two of these remedies in prior installments of this post. This and one or more other future installments will address he third: an order appointing arbitrators.

This instalment addresses the following FAQs concerning the judicial appointment of arbitrators under 9 U.S.C. § 5:

1. Under what Circumstances can a Court Appoint Arbitrators under Section 5 of the Federal Arbitration Act?
2. What Papers Comprise an Application to Appoint an Arbitrator under Section 5?

The next installment will address the FAQs:

1. “How does Section 5 Work in Practice?”
2. “Does Section 5 of the Federal Arbitration Act authorize a Court to Appoint a Replacement Arbitrator if an Arbitrator Dies Prior to the Making of an Award?”    

Under what Circumstances can a Court Appoint Arbitrators under Section 5 of the Federal Arbitration Act?

Section 5 of the Federal Arbitration Act provides that “[i]f in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed. . . .” 9 U.S.C. § 5. This provision of Section 5 reflects “the central or primary purpose of the [Federal Arbitration Act (“FAA”)][,]” which is “to ensure that  private agreements to arbitrate are enforced according to their terms.” Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 678-80 (2010) (citation and quotations omitted). It also ensures enforcement of what Circuit Court Judge Richard A. Posner once dubbed the “cornerstone of the arbitral process”: “Selection of the decision maker by or with the consent of the parties. . . . Lefkovitz v. Wagner, 395 F.3d 773, 780 (2005) (Posner, J.); see, e.g., Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art. V(1)(d), June 10, 1958, 21 U.S.T. 2519, T.I.A.S. No. 6997 (a/k/a the “New York Convention”) (implemented by 9 U.S.C. §§ 201, et. seq.) (award subject to challenge where “[t]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties”); Stolt-Nielsen, 559 U.S. at 668, 670 (one of the FAA’s “rules of fundamental importance” is parties “may choose who will resolve specific disputes”) (emphasis added; citations omitted); Encyclopaedia Universalis S.A. v. Encyclopaedia Brittanica, Inc., 403 F.3d 85, 91-92 (2d Cir. 2005) (vacating award by panel not convened in accordance with parties’ agreement); Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F.3d 223, 226 (4th Cir. 1994) (same); Avis Rent A Car Sys., Inc. v. Garage Employees Union, 791 F.2d 22, 25 (2d Cir. 1986) (same).

In addition to directing that arbitrator selection and qualification provisions be enforced according to their terms, Section 5 authorizes court intervention for appointing arbitrators in three situations:  

1. “if no method be provided therein. . . [;]”
2. “if a method be provided and any party thereto shall fail to avail himself of such method[;] or”
3. “if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy. . . .”  

9 U.S.C. § 5.

In any of those situations Section 5 authorizes “either party” to make an “application” to the court for an order “designat[ing]” and “appoint[ing] “an arbitrator or arbitrators or umpire,” “who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein. . . .” 9 U.S.C. § 5. Section 5 also states that “unless otherwise provided in the agreement arbitration shall be by a single arbitrator.”  9 U.S.C. § 5.

Appointing Arbitrators: What Papers Comprise an Application to Appoint an Arbitrator under Section 5?

Like applications under Section 4 of the Federal Arbitration Act, and all other applications for relief under the Federal Arbitration Act, an application to appoint arbitrators under Section 5, when brought as an independent legal proceeding in federal district court, is a summary or expedited proceeding, not a regular lawsuit. The application, like all other Federal Arbitration Act applications, is governed by Section 6 of the Act, which provides that “[a]ny application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise .  .  .  expressly provided [in the Federal Arbitration Act].” 9 U.S.C. § 6.

In cases where the application to appoint an arbitrator commences an independent proceeding in a federal district court, the papers in support of the application will ordinarily consist of: (a) a notice of application; (b) a summons; (c) the application itself; (d) a memorandum of law in support; and (e) any supporting affidavits or declarations, principally (but not necessarily exclusively) for putting before the court pertinent documents. Sometimes the application is referred to as a “petition,” rather than an “application,” but the variation in nomenclature does not change the substance or legal effect of the paper.

Documents that should be submitted to the Court ordinarily include copies of: (a) the contract containing the arbitration agreement; (b) the arbitration demand and any related correspondence, including with the arbitrator provider; (c) any documents evidencing efforts to appoint an arbitrator or arbitration panel; (d) any documents evidencing the presence of one or more of the three grounds under which Section 5 authorizes a court to appoint an arbitrator; and (e) a list of arbitrators the court should consider appointing, along with their qualifications.

The application should show that: (a) the court has subject matter jurisdiction, personal jurisdiction, and venue; (b) the parties entered into a written arbitration agreement falling under the Federal Arbitration Act, or that the applicant is entitled to claim against the respondent under a written arbitration agreement; (c) at least one of the three grounds for Section 5 relief is present; (d) appointing an arbitrator from the applicant’s list is warranted in the circumstances, including under the parties’ agreement.

Please note. . .

This guide, including the installments that will follow in later posts, and prior installments, does not purport to be a comprehensive recitation of the rules and principles of arbitration law pertinent or potentially pertinent to the issues discussed. It is designed simply to give clients, prospective clients, and other readers general information that will help educate them about the legal challenges they may face and how engaging a skilled, trustworthy, and experienced arbitration attorney can help them confront those challenges more effectively.

This guide is not intended to be legal advice and it should not be relied upon as such. Nor is it a “do-it-yourself” guide for persons who represent themselves pro se, whether they are forced to do so by financial circumstances or whether they voluntarily elect to do so.

If you want or require arbitration-related legal advice, or representation by an attorney in an arbitration or in litigation about arbitration, then you should request legal advice from an experienced and skilled attorney or law firm with a solid background in arbitration law.

About the Author

Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has nearly 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is a former partner of the litigation departments of the New York City firms of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP).

Loree & Loree represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.

Loree & Loree was recently selected by Expertise.com out of a group of 1,763 persons or firms reviewed as one of Expertise.com’s top 18 “Arbitrators & Mediators” in New York City for 2019, and now for 2020. (See here and here.)

If you have any questions about arbitration, arbitration-law, arbitration-related litigation, this article, or any other legal-related matter, you can contact Phil Loree Jr. at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

Photo Acknowledgment

The photo featured in this post was licensed from Yay Images and is subject to copyright protection under applicable law. Loree & Loree added text to this photo.

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Class Arbitration, Absent Class Members, and Class Certification Awards: Consent or Coercion?

January 6th, 2020 Arbitration Agreements, Arbitration as a Matter of Consent, Authority of Arbitrators, Class Action Arbitration, Class Arbitration - Class Certification Awards, Clause Construction Award, Confirm Award | Exceeding Powers, Consent to Class Arbitration, FAA Chapter 1, Federal Arbitration Act Enforcement Litigation Procedure, First Principle - Consent not Coercion, Practice and Procedure, Rights and Obligations of Nonsignatories, United States Court of Appeals for the Second Circuit Comments Off on Class Arbitration, Absent Class Members, and Class Certification Awards: Consent or Coercion?

On November 29, 2019 we posted Absent Class Members, Class Arbitration, Class Certification Awards, Consent, Coercion, and the Second Circuit, which discussed the U.S. Court of Appeals for the Second Circuit’s recent decision in Jock v. Sterling Jewelers Inc., No. 18-153-cv, slip op. (2d Cir. November 18, 2019) (“Jock IV”).

In Jock IV the Second Circuit reversed a district court order vacating an arbitrator’s class certification award, which the district court vacated because it made tens of thousands of absent class members part of a certified class even though none: (a) was a party to the class arbitration; (b) opted in to the proposed class; or (c) participated in or otherwise consented to the class arbitration. The Second Circuit held it was enough that the absent class members, like all other employees, had executed an identical, form pre-dispute arbitration agreement (the “Agreement”), which required the absent class members to submit, among other things, arbitrability and arbitration procedure disputes to arbitration.

Absent Class Members: The Federal Arbitration Act’s First Principle and Consent to Class Arbitration

The Federal Arbitration Act (“FAA”)’s “first principle” is that “arbitration is a matter of consent, not coercion.” Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 678-80, 684 (2010) (citation and quotations omitted); see, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417 (2019); Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287, 295 & n.7, 294 n.6 (2010); AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 648 (1986).

Beginning in Stolt-Nielsen,and most recently in Lamps Plus, the U.S. Supreme Court has repeatedly emphasized the importance of consent to class arbitration. In Stolt-Nielsen, the Court required a “contractual basis” for imposing class arbitration, and explained that “[a]n implicit agreement to authorize class arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate.” 599 U.S. at 685.  

Most recently, in Lamps Plus the Court imposed a federal presumption against consent to class arbitration under which silent or ambiguous contract language cannot establish consent to class arbitration, and under which the FAA is deemed to preempt state-law contract interpretation rules that are not intent-based—such as contra proferentem, the rule that ambiguities are, at least in the absence of any other extrinsic evidence of intent, construed against the contract’s drafter. See Lamps Plus,139 S. Ct. at 1416-19.

The Lamps Plus presumption requires more than simply “a contractual basis” for finding consent to class arbitration. As a practical matter it means that the parties must clearly and unmistakably consent to class arbitration. (See, e.g., our Lamps Plus post, here.)

What does the Agreement Have to Say About Class Arbitration?

The Agreement is a form dispute resolution agreement that was signed by each of an employer (the “Employer”)’s many employees. By signing the Agreement the signatory Employer and employee agreed to arbitrate their disputes, “waiv[ed] [their] right to obtain any legal or equitable relief . . . through any government agency or court, and . . . also waiv[e] [their] right to commence any court action.”

The Agreement provides that the employee “may. . . seek and be awarded equal remedy” under the Agreement, that “‘[t]he Arbitrator shall have the power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction[,]’ and that any claim arising thereunder will be arbitrated ‘in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association.’” Jock IV, slip op. at 4 (citations omitted).

The Agreement does not purport to be, or evidence consent to, a multi-lateral agreement – i.e., a collective Agreement between the employer and all the tens of thousands of other employees. Employees signing the Agreement do not purport to assign rights or delegate duties to other nonsignatory employees, nor do they purport to confer any authority upon any nonsignatory employees to arbitrate, or otherwise act on behalf of, the signatory employee.

The Agreement did not mention class arbitration, although the Arbitrator found in a June 1, 2009 Clause Construction Award, that the Agreement implicitly permitted class arbitration. In 2011 the Second Circuit in Jock I ruled that the arbitrator’s award should have been confirmed because, by finding that the language of the agreement implicitly permitted class arbitration, the arbitrator had at least arguably interpreted the contract.

The Jock IV Court said that the absent class members were bound by the Clause Construction Award even though they were never parties to the class arbitration, the Clause Construction Award, the certification award, or any of the Federal Arbitration Act enforcement proceedings (including Jock I, II, III, or IV, or any of the district court proceedings), and even though they never opted in to the class or otherwise consented to any of the arbitration or arbitration-related proceedings.

The Jock IV Court said that was so because each of the absent class members had signed an Agreement identical to the ones signed by the class representatives and employees who had opted into the class, and had agreed to submit arbitrability disputes to an arbitrator.

Further, said the Court, the absent class members could not collaterally attack the Clause Construction Award because the Agreement clearly and unmistakably authorized an arbitrator to decide both arbitrability questions and questions concerning procedure. Consequently, the absent class members were not entitled to a de novo determination of whether they consented to class arbitration, which, under Lamps Plus, would require the class arbitration proponents to demonstrate that the parties clearly and unmistakably consented to class arbitration.

What Result if the Court Determined the Class Arbitration Consent Issue on a De Novo Basis?

To test the soundness of the Jock IV Court’s conclusion, let’s assume that the Court should have determined on a de novo basis whether the absent class members consented to class arbitration, or, alternatively, whether the absent class members consented to be bound by Clause Construction and certification awards, which were made by arbitrators the absent class members had no part in selecting, and to which those absent class members did not consent after being given an opportunity to opt in to the class.

Lamps Plus requires clear and unmistakable consent to class arbitration. There is no possibility the arbitration agreements signed by the parties could satisfy that demanding requirement. As Jock I demonstrates, at most the Agreement was susceptible to an interpretation under which one might infer implied consent to class arbitration. But it was also susceptible to one or more other interpretations under which it contemplated only bilateral arbitration.

It was therefore ambiguous, and were the Court to have analyzed class arbitration consent on a de novo basis under Lamps Plus standard, then the Court would presumably have determined that the absent class members did not consent to class arbitration and therefore could not be made part of a class.

Did the Jock IV Court Err by Deeming the Absent Class Members to be Bound by the Clause Construction Award?   

The soundness of Jock IV thus depends on whether the absent class members’ signing of arbitration agreements identical to those signed by the Jock class representatives and opt-in class members can legitimately be construed to evidence their consent to be bound by a nearly-decade-old Clause Construction Award decided (a) by an arbitrator they played no part in selecting under (b) a legal standard that has been superceded by a 2019 United States Supreme Court decision (Lamps Plus). 

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