• Archives
• Categories
• Initial Strategy Discussion Offer
• Videos/Webinars

Posts Tagged ‘Oxford Health Plans LLC v. Sutter’

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). 

Continue Reading »

Share this Post on:

• LinkedIn
• Facebook
• Email
• Pinterest
• Tumblr
• X

Absent Class Members, Class Arbitration, Class Certification Awards, Consent, Coercion, and the Second Circuit

November 29th, 2019 Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, Class Action Arbitration, Confirm Award | Exceeding Powers, Consent to Class Arbitration, Exceeding Powers, FAA Chapter 1, Federal Arbitration Act Section 10, Judicial Review of Arbitration Awards, United States Court of Appeals for the Second Circuit 1 Comment »

While federal, and many state, courts have class-action procedural rules that permit them to bind absent class members to a judgment or settlement, arbitration is different because it is based on party consent, not coercion. While the critical, threshold issues presented in class arbitration is party consent to class arbitration, class certification disputes arising out of a class arbitration proceeding can be just as challenging, especially when they involve absent class members who have not opted in to the proposed or certified class (“absent class members” or “absent members”).

Suppose Employer A requires each of its employees to sign a form arbitration agreement that clearly and unmistakably authorizes the arbitrator to decide all disputes arising out of or relating to the employment relationship as well as arbitrability and procedural issues. More than 250 employees (including putative class representatives) assert that an arbitrator (the “Arbitrator”) should determine whether Employer A consented to class arbitration. Employer A submits that issue to the Arbitrator.

The Arbitrator hears and considers the evidence and arguments and makes a Clause Construction Award, which rules that Employer A and each of the employees consented to class arbitration by signing the employment agreement. Employer A challenges the award as exceeding the arbitrator’s powers under Section 10(a)(4) of the Federal Arbitration Act, but the challenge fails because an appellate court finds that the Arbitrator was at least arguably construing the employment agreement. .

After further proceedings the Arbitrator makes another award, this one certifying a class consisting of approximately 44,000 employees, which included not only the more than 250 persons who were either class representatives or opted in to the class, but also tens of thousands of persons who were absent class members in the sense that they had been notified of the class arbitration and proposed class but had not opted in to the class and had not otherwise appeared in the arbitration proceedings.  

Did the Arbitrator have the power to make that class certification award, which purports to bind each of the 44,000 class members, the vast majority of whom were never parties to the arbitration and had never submitted to the Arbitrator any of the issues that were decided by the Arbitrator’s Clause Construction and class certification awards?  

On November 18, 2019, the United States Court of Appeals for the Second Circuit said the answer to that question was “yes.”  But with all due respect to the Second Circuit, and understanding that reasonable minds can and do differ on this subject, we think the better answer would have been “no.”

This post briefly discusses the Second Circuit’s decision.

A subsequent post will explain why we believe the Second Circuit should have held that the arbitrator in that case did not have the authority to bind absent class members, who were not parties to the Clause Construction Award, did not opt into the class, did not otherwise agree to be bound by the Clause Construction Award or the class certification award, and did not otherwise submit to the Arbitrator the issues decided by the Clause Construction and class certification Awards.

 The result would be that the class arbitration could proceed, albeit with a far smaller, certified class (which might be expanded to accommodate any absent members who might be given an additional opportunity to opt-in). But that result, we think, is consistent with the consensual nature of arbitration— a dispute resolution method that is fundamentally different from its coercive counterpart, court litigation.   

Absent Class Members: Background and Procedural History of Jock v. Sterling Jewelers Inc.

The Second Circuit’s recent decision was the fourth appeal in the Jock v. Sterling Jewelers Inc. case, a long-running class arbitration dispute. The first of these appeals,  Jock v. Sterling Jewelers, Inc., 646 F.3d 113 (2d Cir. 2011) (“Jock I”), was decided in 2011—the most recent one, Jock v. Sterling Jewelers Inc., No. 18-153-cv, slip op. (2d Cir. November 18, 2019) (“Jock IV”), and the subject of this post, was decided November 18, 2019.

Jock and her co-plaintiffs are retail sales employees of Sterling Jewelers, Inc. (“Sterling”). Back in 2008 they sought relief on behalf of a class under Title VII of the Civil Rights Act of 1964, and under the Equal Pay Act, alleging Sterling, based on their gender, paid them less than their similarly situated male co-workers. 

Sterling employees, including Jock and her co-plaintiffs were required to sign a “RESOLVE Program” agreement (the “Agreement”), which imposed mandatory arbitration. By executing the agreement employees expressly “waiv[ed] right[s] to obtain any legal or equitable relief . . . through any government agency or court, and . . . also waiv[ed] [their] right[s] to commence any court action.” The Agreement provided that they “may. . . seek and be awarded equal remedy through the RESOLVE Program.”

The Agreement provided 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.”

Class arbitration ensued, and the arbitrator construed the Agreement to permit class arbitration. The district court overturned the award on the ground that the class construction award exceeded under the arbitrator’s powers for the reasons stated in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010).

Jock I

But the Second Circuit in Jock I reversed the district court’s judgment. As the Court explained in Jock IV, the Jock I Court “reversed, holding that the District Court impermissibly substituted its own legal analysis for that of the arbitrator instead of focusing its inquiry on whether the arbitrator was permitted to reach the question of class arbitrability that had been submitted to her by the parties.” Jock IV, slip op. at 5-6. The Jock I Court also “explained. . . that the arbitrator had a colorable justification under the law to reach the decision she did.” Jock IV, slip op. at 6.

Jock I “distinguished Stolt-Nielsen on the ground that the parties in Stolt-Nielsen stipulated that their arbitration agreement contained ‘no agreement’ on the issue of class arbitration, whereas the plaintiffs in [Jock I] merely conceded that there was no explicit agreement to permit class arbitration, thus leaving open the possibility of an ‘implied agreement to permit arbitration.’”  Jock IV, slip op. at 6 (citation omitted). 

The Class Certification Award

After Jock I the arbitrator made a class certification award, certifying a class of “approximately 44,000 women, comprising the then-254 plaintiffs as well as other individuals who had neither submitted claims nor opted in to the arbitration proceeding (‘the absent class members’).” Jock IV, slip op. at 6 (parenthetical in original). The arbitrator’s class certification was limited to those with Title VII disparate impact claims seeking declaratory and injunctive relief.

The district court denied Sterling’s motion to vacate the certification award. As Jock IV explains, the district court reasoned “that Sterling’s argument that the arbitrator had exceeded her powers in ‘purporting to bind absent class members who did not express their consent to be bound’ was ‘foreclosed by’ this Court’s holding in Jock I that ‘there is no question that the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator.’” ”  Jock IV, slip op. at 7 (citation omitted).

Jock II

The district court’s decision refusing to vacate the class certification award resulted in the second appeal, Jock v. Sterling Jewelers Inc., 703 Fed. Appx. 15 (2d Cir. 2017) (summary order). (“Jock II”). In July 2017 we wrote a short post (here) about Jock II.

Jock II vacated and remanded the district court’s decision refusing to vacate the certification award because it purported to bind absent members, who (because of their absence) could not have “squarely presented” to the arbitrator the question whether the agreement authorized class procedures, let alone the issue of whether they should be deemed part of a class in a class arbitration to which they had not consented. See Jock II, 703 Fed. Appx. at 16, 17-18 (quotation and citation omitted).

In Jock II, the Second Circuit directed the district court to “consider[] on remand. . . ‘whether an arbitrator, who may decide. . . whether an arbitration agreement provides for class procedures because the parties “squarely presented” it for decision, may thereafter purport to bind non-parties to class procedures on this basis.’”) Jock IV, slip op. at 7-8 (citation omitted).  

The Jock II Remand

The district court vacated the class determination award on remand for two reasons. First, the district court said that it had ruled in 2010 that the Agreement did not authorize class procedures and that, accordingly, the absent class members had not consented to class arbitration.

Second, the submission by the plaintiffs and defendants (not the absent members) to the arbitrator of the question whether the Agreement authorized class arbitration did not confer on the arbitrator the authority to make a ruling binding on the absent members (who did not submit the issue to the Arbitrator). “The District Court[,]” said the Second Circuit, “reasoned that, even if the arbitrator’s ‘erroneous interpretation’ of the [Agreement] could bind the 254 plaintiffs who had ‘authorized the arbitrator to make that determination by submitting the question to her or opting into the proceeding, that erroneous interpretation could not bind absent class members.” Jock IV, slip op. at 8.

The Jock IV Appeal

The district court ruling on the Jock II remand resulted in the Jock IV appeal. (The Jock III decision was the dismissal of an appeal of a district court ruling that it lacked subject matter jurisdiction to vacate an interim decision rendered by the arbitrator. Jock v. Sterling Jewelers Inc., 691 F. App’x 665 (2d Cir. 2017) (summary order).) 

Since the issue before the district court on the Jock II remand  was whether the arbitrator’s class certification decision should be vacated under Section 10(a)(4) of the Federal Arbitration Act, the applicable standard of review was the manifest disregard of the agreement standard set forth in Stolt-Nielsen and Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568-69 (2013). See Jock IV, slip op. at 9-11. (For discussion of that deferential standard, see here, here, here, and here)  

Sterling (the “Award Challenger”) argued, consistent with the district court’s decision,  that the deferential standard should not apply to the question whether the absent members had consented to class arbitration, because they were not parties to the class construction award that was the subject of Jock I, did not submit the issue of class consent to the arbitrator, or otherwise agree to be bound by a determination of consent to class arbitration to which they were not parties.

But the Second Circuit did not agree with the district court or the Award Challenger. It agreed with the plaintiff-appellants (the “Award Defending Parties”), who “argue[d] that the absent class members have, in fact, authorized the arbitrator to determine whether the [Agreement] permits class arbitration procedures.” Jock IV, slip op. at 11.  They urged “that because all Sterling employees signed the RESOLVE Agreement, all Sterling employees “agreed that, if any of them initiated a putative class proceeding, the arbitrator in that proceeding would be empowered to decide class-arbitrability—and, if he or she found it appropriate, to certify a class encompassing other employees’ claims.” Jock IV, slip op. at 11-12.

The Award Defending Parties asserted that “the District Court erred by ‘never ask[ing] what authority absent class members conferred on [the arbitrator] by joining the RESOLVE Program [i.e., signing the Agreement],’ a question that is a matter of contract interpretation.” Jock IV, slip op. at 12.

The Second Circuit determined that, by signing the Agreement, the employer and the absent class members agreed that: (a) any other employee who signed the Agreement was authorized to arbitrate on behalf of any absent member of a yet-to-be certified class the issue of consent to class arbitration, irrespective of whether the absent class member was a party to the arbitration, and irrespective of whether the absent member had notice of, and consented to, the arbitration; (b) any absent class member would be bound by the outcome of such a class-arbitration-consent arbitration proceeding, even though the absent class member did not participate in the arbitration, did not consent to the arbitration (apart from signing the Agreement), and did not play any role in the selection of the arbitrator who presided over the arbitration; and (c) the decision on class arbitration reached by the arbitrator in his or her absence would be subject to review under the exceedingly deferential Oxford/Stolt-Nielsen standard only, and the absent members would be bound by the result of that judicial review even though they were not parties to the Clause Construction Award or to the judicial proceeding in which the Clause Construction Award was reviewed.  

Absent Class Members: What to Make of Jock IV?

We’ll discuss that in an upcoming post….

Share this Post on:

• LinkedIn
• Facebook
• Email
• Pinterest
• Tumblr
• X

Can Arbitrators Exceed their Powers by Making an Award in Manifest Disregard of the Parties’ Agreement?

April 17th, 2019 Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, Challenging Arbitration Awards, Confirmation of Awards, Contract Interpretation, Contract Interpretation Rules, Exceeding Powers, Grounds for Vacatur, Manifest Disregard of the Agreement, Nuts & Bolts, Nuts & Bolts: Arbitration, Outcome Risk, Practice and Procedure, United States Court of Appeals for the Eighth Circuit, United States Supreme Court, Vacatur Comments Off on Can Arbitrators Exceed their Powers by Making an Award in Manifest Disregard of the Parties’ Agreement?

Suppose arbitrators decide an issue within the scope of their authority but do so in manifest disregard the parties’ contract. Do they exceed their authority by making an award that has not even a barely colorable basis in the parties’ contract or in applicable law?

The answer to that question, is, of course, “yes,” and over the years we’ve discussed in a number of posts how arbitrators can exceed their powers under Federal Arbitration Act Section 10(a)(4) or Section 301 of the Labor Management Relations Act by making awards in manifest disregard of the parties’ agreement. (See Loree Reinsurance and Arbitration Law Forum Posts here, here, here, here, here, here, here, here, and here.) As discussed in those posts, the U.S. Supreme Court has on multiple occasions ruled that commercial and labor arbitrators can exceed their powers by making an award that manifestly disregards—or does not “draw its essence” from—the parties’ agreement. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Inc., 130 S.Ct. 1758, 1768-70 (2010); Oxford Health Plans LLC v. Sutter, 133 S.Ct. 2064, 2067, 2068 (2013); Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960); Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987).

In our April 12, 2019 post (here) we reviewed how it is that the limited review powers courts have to vacate commercial and labor arbitration awards are designed to provide a limited, but very important, safety net to protect parties against egregious, material violations of arbitration agreements. Without that limited protection, the risks associated with agreeing to arbitrate would be intolerably high and parties would be much less apt to opt for arbitration over court litigation.

Courts vacate arbitration awards where arbitrators act outside the scope of their authority by ruling on issues that the parties did not agree to submit to them. That’s what happened in Brock Indus. Servs., LLC v. Laborers’ Int’l Union., __ F.3d ___, No. 17-2597, slip op. (7^th Cir. April 8, 2019), which we discussed in our April 12, 2019 post here.

But to obtain vacatur of an award based on manifest disregard of the agreement, however, an award challenger must satisfy an exceedingly demanding standard. We’ve addressed the parameters of that standard in a number of other posts. (See, e.g., here, here, here, here, here, here, here, here, and here. Our blog has also tried to give a feel for how Courts apply (or are supposed to apply) the standard by comparing the U.S. Supreme Court decision in Stolt-Nielsen, which held that an award should be vacated for manifest disregard of the agreement, to the Supreme Court decision in Oxford, which held that an award should not be vacated under that manifest disregard standard. (See Loree Reinsurance and Arbitration Law Forum posts here, here, and here.) And from time-to-time we’ve reported on other cases that have applied the standard.

While challenges to awards based on manifest disregard of the agreement are not uncommon, a very large majority of those challenges are either virtually certain to fail or at least highly unlikely to succeed. It is a relatively small universe of remaining, close cases that pose the biggest challenges for parties and courts.

Today we’ll look at one of those close cases, which was decided by the Eighth Circuit Court of Appeals and explain why the case failed to satisfy the demanding standard, even though, at least at first glance, it may be difficult to square the arbitration award with the parties’ agreement.

Continue Reading »

Share this Post on:

• LinkedIn
• Facebook
• Email
• Pinterest
• Tumblr
• X

The Fourth Circuit: What Constitutes a Final Award and Who Makes the Call?

August 3rd, 2018 Appellate Practice, Arbitrability, Arbitration Practice and Procedure, Authority of Arbitrators, Awards, Confirmation of Awards, Exceeding Powers, Federal Arbitration Act Enforcement Litigation Procedure, Grounds for Vacatur, Judicial Review of Arbitration Awards, Manifest Disregard of the Agreement, Manifest Disregard of the Law, United States Court of Appeals for the Fourth Circuit 1 Comment »

Final Award 2

What constitutes a “final arbitration award” for purposes of the Federal Arbitration Act is important because it bears on whether an award can be confirmed, vacated, or modified under Sections 9, 10, or 11 of the Federal Arbitration Act (the “FAA”). We addressed the basics concerning final awards in a 2009 post, here.

In Northfolk Southern Railway Co. v. Sprint Communications Co., L.P., 883 F.3d 417 (4^th Cir. 2018), the U.S. Court of Appeals for the Fourth Circuit was faced with the question whether an award (the “Appraisal Award”), convened under an agreement’s appraisal clause, and issued by three appraisers, was a final arbitration award under the FAA. The unusual procedural posture of the case raised an additional, related question: whether under the FAA an arbitration panel, convened under the arbitration provision of the parties’ agreement, had the authority to declare the Appraisal Award to be a final award. That question matters, for if an arbitration panel has that power, then its decision concerning finality is subject only to the very highly deferential review permitted by Section 10 of the FAA. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942-43 (1995); Oxford Health Plans LLC v. Sutter, 133 S. Ct.  2064, 2068-69 (2013).

Concededly with the benefit of 20/20 hindsight, we wonder whether a different litigation and appellate strategy might have yielded a different outcome. The Court held that the Appraisal Award was not final, and remanded the matter back to the appraisers. But the Court did not, for the reasons set forth below, definitively answer the “who” question. The Court’s decision that the Appraisal Award was not final was unquestionably correct if one considers from a purely objective standpoint, without deference to the Arbitration Award, which declared that the Award was final.  But the correct outcome would be considerably less certain had the Railroad sought confirmation of the Arbitration Award and urged the Court to accord deference to the arbitrators who made it.

Background: Northfolk Southern Railway Co. v. Sprint Communications Co., L.P., 883 F.3d 417 (4^th Cir. 2018)

Final Award 1

The dispute between Northfolk Southern Railway Co. (the “Railroad” or the “Appraisal Award Defending Party”) and Sprint Communications Co., L.P. (the “Carrier” or the “Appraisal Award Challenging Party”) arose out of a 25-year-term 1987 licensing agreement (the “Agreement”) under which the Carrier’s predecessor licensed from the Railroad’s predecessor the right to use for fiber-optics-cable purposes certain parts of the Railroad’s rights of way. The Carrier renewed that Agreement for an additional 25-year term (the “renewed Agreement term”), and a dispute arose about the renewal price. Continue Reading »

Share this Post on:

• LinkedIn
• Facebook
• Email
• Pinterest
• Tumblr
• X

• Search for:

• Subscribe to Blog via Email

  Enter your email address to subscribe to The Arbitration Law Forum and receive notifications of new posts by email.

  Email Address

  Subscribe

  Join 2 other subscribers

• Recent Posts

  • CPR’s March 27 Appellate Arbitration Video Panel: Jules, Flowers Foods, Goff, and Bruce April 1, 2026
  • Arbitration and Sexual Harassment Disputes: The Sixth Circuit Adopts the EFAA Entire-Case Rule in Bruce v. Adams & Reese March 23, 2026
  • You Only Get One Shot at Vacatur: The Fourth Circuit Adopts the “Impermissible Collateral Attack” Rule | Center for Excellence in Higher Educ., Inc. v. Accreditation Alliance of Career Schools & Colleges, ___ F.4th ___, No. 25-1372, slip op. (4th Cir. Feb. 5, 2026) March 6, 2026

• Top Posts & Pages

  • 
    About The Loree Law Firm
  • 
    Some Things to Consider Seriously Before You Agree to Arbitrate: An Arbitration Award may Direct You to Pay Your Adversary's Attorney's Fees
  • 
    The EFAA—Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act: A Practical Overview
  • 
    Arbitration Law FAQs: Confirming Arbitration Awards under the Federal Arbitration Act
  • 
    Philip J. Loree Jr.

• Categories

  Categories Select Category 1404(a) Transfer of Venue Absolute Pollution Exclusions Access to Records Accumulation of Loss ADR Social Media Aggregate Cover Allocation Allocation of Settlements American Arbitration Association Amicus Brief Submissions Amount in Controversy and Podcasts Anti-Arbitration Statutes Anti-Stacking Provisions Appellate Jurisdiction Appellate Practice Applicability of Federal Arbitration Act Applicability of the FAA Application to Appoint Arbitrator Application to Compel Arbitration Application to Confirm Application to Enforce Arbitral Summons Application to Stay Arbitration Application to Stay Litigation Application to Vacate Appraisal Arbitrability Arbitrability – Equitable Estoppel Arbitrability – Nonsignatories Arbitrability | Clear and Unmistakable Rule Arbitrability | Existence of Arbitration Agreement Arbitral Seat Arbitral Subpoenas Arbitration Agreement Invalid Arbitration Agreement Unenforceable Arbitration Agreements Arbitration and Mediation FAQs Arbitration as a Matter of Consent Arbitration Fees Arbitration Law Arbitration Practice and Procedure Arbitration Provider Rules Arbitration Providers Arbitration Risks Arbitration Situs Arbitrator Selection and Qualification Provisions Arbitrator Vacancy Arbitrator-Imposed Claims Protocols Asbestos-Related Claims Association of Insurance and Reinsurance Run-Off Companies (AIRROC) Attorney Fee Shifting Attorney Fees and Sanctions Authority of Arbitrators Award Confirmed Award Fails to Draw Essence from the Agreement Award Irrational Award Procured by Fraud and Corruption Award Vacated Awards Bad Faith Businessperson’s FAQ Guide to the Federal Arbitration Act California State Courts California Supreme Court Captive Insurance Companies Certificate or Treaty Limits Challenging Arbitration Agreements Challenging Arbitration Awards Charles Bennett Choice-of-Law Provisions Claims Guidelines and Procedures Claims Handling Claims Spot Class Action Arbitration Class Action Waivers Class Arbitration – Class Certification Awards Class Arbitration Waivers Clause Construction Award Clear and Unmistakable Rule Collateral Requirements for Unauthorized Reinsurance Commercial and Industry Arbitration and Mediation Group Commercial Impracticability Confirm Award | Attorney Fees Confirm Award | Exceeding Powers Confirm Award | Manifest Disregard of the Law Confirmation of Awards Conflict between Arbitration Clause and Another Clause Conflict of Laws Conflict-of-Law Rules Consent to Class Arbitration Consent to Confirmation Consolidation of Arbitration Proceedings Construction Industry Arbitration Contract Defenses Contract Interpretation Contract Interpretation Rules Convention on the Recognition and Enforcement of Foreign Arbitral Awards Corruption in the Arbitrators Corruption or Undue Means COVID-19 Considerations COVID-19 Contract Defenses CPLR Article 75 CPR Alternatives CPR Speaks Blog of the CPR Institute CPR Video Interviews Death of Arbitrator Default Award Default in Proceeding with Arbitration Definition of Occurrence Delegation Agreements Delegation Provision Disinterestedness Dispute Risk – Frequency and Severity Diversity Jurisdiction Drafting Arbitration Agreements Drafting Mediation Agreements EFAA – FAA Chapter 4 Effective Vindication Doctrine Employment Arbitration Enforcing Arbitration Agreements English Law Environmental Contamination Claims Equal Footing Principle ERISA Estoppel Ethics Events Evident Partiality Exceeding Powers Exemption from FAA Existence of Arbitration Agreement FAA Chapter 1 FAA Chapter 2 FAA Chapter 3 FAA Chapter 4 FAA Preemption of State Law FAA Section 1 FAA Section 10 FAA Section 11 FAA Section 16 FAA Section 2 FAA Section 3 FAA Section 4 FAA Section 401 FAA Section 402 FAA Section 9 FAA Transportation Worker Exemption Federal Arbitration Act 202 Federal Arbitration Act Enforcement Litigation Procedure Federal Arbitration Act Section 1 Federal Arbitration Act Section 10 Federal Arbitration Act Section 11 Federal Arbitration Act Section 12 Federal Arbitration Act Section 2 Federal Arbitration Act Section 201 Federal Arbitration Act Section 202 Federal Arbitration Act Section 203 Federal Arbitration Act Section 204 Federal Arbitration Act Section 207 Federal Arbitration Act Section 3 Federal Arbitration Act Section 4 Federal Arbitration Act Section 5 Federal Arbitration Act Section 7 Federal Arbitration Act Section 9 Federal Courts Federal Policy in Favor of Arbitration Federal Question Federal Rules of Civil Procedure Federal Subject Matter Jurisdiction Feed Final Awards FINRA Arbitration First Department First Options Reverse Presumption of Arbitrability First Principle – Consent not Coercion Follow-the-Settlements/Follow-the Fortunes Foreign Arbitration Awards Foreign Sovereign Immunities Act Forfeiture Formation of Arbitration Agreement Forum Non Conveniens Forum Selection Agreements Fraud Fraud or Undue Means Functus Officio Gateway Disputes Gateway Questions General Grounds for Modifying or Correcting Award Grounds for Vacatur Guest Posts Honorable Engagement House of Lords Imperfectly Executed Award or Powers Impermissible Collateral Attack on Award Independence Injunctions in Aid of Arbitration Insolvency Proceedings Insurance Contracts Insurance Coverage Intended Beneficiaries Inter-American Convention on International Commercial Arbitration Internal Controls International Arbitration International Institute for Conflict Prevention and Resolution (CPR) International Judicial Assistance Judicial Review of Arbitration Awards Jurisdiction Clause Labor Arbitration Labor Law Laches Late Notice Lead Paint Claims Legal Ethics Legislative Developments Life Reinsurance Limitations on Arbitrability LMRA Section 301 LMRA Section 301(a) London Market Long-Tail Claims Look Through Loree & Loree Loree & Loree Arbitration-Law Blogs Loree and Faulkner Interviews Louisiana Supreme Court Making Decisions about Arbitration Managing Dispute Risks Manifest Disregard of the Agreement Manifest Disregard of the Law Marine Products Rule Mass Arbitration Massachusetts Supreme Judicial Court McCarran-Ferguson Act Mediation Mediation Agreements Michigan State Courts Modify or Correct Award Moses Cone Principle Motion to Compel Arbitration MPPAA Arbitration Negotiation New Era ADR New Jersey State Courts New York Appellate Division New York Arbitration Law (CPLR Article 75) New York Convention New York County New York Court of Appeals New York State Courts Noncumulation Clauses Nuts & Bolts Nuts & Bolts: Arbitration Nuts & Bolts: Reinsurance or Modify Award Outcome Review Outcome Risk Panama Convention Party-Appointed Arbitrators Personal Jurisdiction Petition or Application to Confirm Award Petition to Compel Arbitration Petition to Enforce Arbitral Summons Petition to Modify Award Petition to Vacate Award Philip J. Loree Jr. Policy Post-Award Federal Arbitration Act Litigation Post-Dispute Arbitration Agreements Practice and Procedure Pre-Answer Security Pre-Award Federal Arbitration Act Litigation Preclusive Effect of Awards Predispute Arbitration Agreements Prejudice Presumption of Arbitrability Procedural Arbitrability Procedural Misconduct Professor Angela Downes Professor Downes Property Insurance Public Policy Punitive Damages Questions of Arbitrability Re/Insurance Mediation Institute Reinsurance Allocation Reinsurance Arbitration Reinsurance Claims Reinsurance Claims Group Reinsurance Contracts Reinsurance Litigation Reinsurance Mediation Reinsurance Social Media Remedies Repeat Players Res Judicata or Claim Preclusion Rescission and Reformation Retrospectively-Rated Premium Contracts Richard D. Faulkner Rights and Obligations of Nonsignatories Russ Bleemer Second Department Section 1 Section 10 Section 11 Section 12 Section 16 Section 1782 Section 2 Section 3 Default Section 3 Stay of Litigation Section 4 Section 4 “Aggrieved” Requirement Section 5 Section 6 Section 7 Section 9 Securities Arbitration Security Requirements Separability Service of Process Severability Sexual Harassment and Sexual Assault Disputes Small and Medium-Sized Business Arbitration Risk Small Business B-2-B Arbitration Small Business B-2-B Mediation South Carolina Supreme Court Sovereign Immunity Sports Arbitration Standard of Review State Arbitration Law State Arbitration Statutes State Courts Statute of Limitations Statutory Interpretation and Construction Stay of Arbitration Stay of Litigation Stay of Litigation Pending Arbitration Stay Pending Appeal Subject Matter Jurisdiction Subpoenas Subscribe Substantive Arbitrability Sudden and Accidental Pollution Exclusions Supreme Court Texas Supreme Court Textualism The Arbitration Law Forum The Federalist Society The Loree Law Firm Third-Party Beneficiaries Time Limit for Vacating, Modifying, or Correcting Award Timing and Number of Occurrences Treble Damages Trigger of Coverage Twitter U.S. District Court for the District of New Jersey Unauthorized Reinsurance Uncategorized Unconscionability Uniform Commercial Code Article 2 United States Court of Appeals for the D.C. Circuit United States Court of Appeals for the Eighth Circuit United States Court of Appeals for the Eleventh Circuit United States Court of Appeals for the Fifth Circuit United States Court of Appeals for the First Circuit United States Court of Appeals for the Fourth Circuit United States Court of Appeals for the Ninth Circuit United States Court of Appeals for the Second Circuit United States Court of Appeals for the Seventh Circuit United States Court of Appeals for the Sixth Circuit United States Court of Appeals for the Tenth Circuit United States Court of Appeals for the Third Circuit United States District Court for the District of Columbia United States District Court for the Eastern District of New York United States District Court for the Eastern District of Pennsylvania United States District Court for the Northern District of Illinois United States District Court for the Southern District of California United States District Court for the Southern District of New York United States Supreme Court Utmost Good Faith Vacate Vacate Award | 10(a)(2) Vacate Award | 10(a)(4) Vacate Award | Arbitrability Vacate Award | Attorney Fees Vacate Award | Attorney’s Fees Vacate Award | Corruption Vacate Award | Evident Partiality Vacate Award | Exceeding Powers Vacate Award | Excess of Powers Vacate Award | Existence of Arbitration Agreement Vacate Award | Fraud Vacate Award | Manifest Disregard of the Law Vacate Award | Public Policy Vacatur Vacatur for Conceded Nonfact or Clear Mistake of Historical Fact Venue Video Conference Hearings Waiver of Arbitration

• Archives

  Archives Select Month April 2026 March 2026 February 2026 January 2026 December 2025 September 2025 August 2025 July 2025 April 2025 March 2025 January 2025 November 2024 October 2024 September 2024 August 2024 July 2024 June 2024 May 2024 March 2024 February 2024 December 2023 November 2023 August 2023 July 2023 June 2023 May 2023 January 2023 August 2022 July 2022 February 2022 December 2021 November 2021 September 2021 August 2021 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 January 2020 November 2019 October 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 September 2018 August 2018 July 2018 July 2017 January 2017 November 2016 June 2015 May 2015 April 2015 March 2015 February 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 November 2013 October 2013 August 2013 July 2013 March 2013 September 2011 August 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009

• Blogroll

  • ADR Toolbox
  • ArbitrationUSA
  • CPR Speaks
  • Disputing Blog
  • Positively Neutral

• Attorney Advertising Notice: Prior results do not guarantee a similar outcome.

  Please see also the information and links set forth on each footer page of the The Loree Law Firm website of which this blog is a part (http://www.loreelawfirm.com), and in the disclaimer that appears in the bottom right corner of each post page of this blog.

Disclaimer:
The content of this blog is not intended to be legal advice and should not be construed as such. The views expressed in this blog are solely those of the author and do not necessarily reflect those of The Loree Law Firm or any of its current or former clients.