By Mark Kantor
A decision last Thursday from the US District Court for the District of Minnesota is worth a brief report, as an example of the rejection by US Federal courts of the argument that an arbitrator’s failure to disclose is an automatic basis alone for vacating the resulting arbitration award. In Ann Eleanor Ploetz, as Trustee For the Laudine L. Ploetz, 1985 Trust v. Morgan Stanley Smith Barney, LLC, Civ. No. 17-1112 (PAM/DTS)(May 25, 2017, available at https://scholar.google.com/scholar_case?case=14229967613986037394&hl=en&lr=lang_en&as_sdt=20003&as_vis=1&oi=scholaralrt), the District Court (Paul Magnuson, District Judge) concluded that “every Court of Appeals to have addressed the issue has rejected Ploetz’s interpretation of Commonwealth Coatings that “the fact of the nondisclosure alone mandates vacatur under either a `reasonable impression of bias’ or `appearance of bias’ standard.”.
Ploetz does not cite any case decided after Commonwealth Coatings [Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968)] interpreting that decision to require vacatur of an award solely because an arbitrator failed to disclose relevant party contacts. This is likely because there are no such cases. It appears as though every Court of Appeals to have addressed the issue has rejected Ploetz’s interpretation of Commonwealth Coatings that “the fact of the nondisclosure alone mandates vacatur under either a `reasonable impression of bias’ or `appearance of bias’ standard.” Nationwide Mut. Ins. Co. v. Home Ins. Co., 429 F.3d 640, 644 (6th Cir. 2005); see also id. at 645 (explicitly rejecting “as dicta . . . the appearance of bias standard espoused in the [Commonwealth Coatings] plurality opinion”).
In Ploetz, the losing party in a 2016-2017 FINRA arbitration sought vacatur of the adverse arbitration award on the ground that one of the arbitrators (Goldman) had failed to disclose his 2012 participation as mediator in an unrelated FINRA matter involving the respondent in the arbitration, MSSB. Goldman had, however, disclosed his service as arbitrator in 6 arbitrations involving Morgan Stanley Smith Barney (MSSB). The parties in the instant arbitration had not objected on the basis of those disclosed matters.
FINRA requires that arbitrators disclose any potential conflicts, including past service as an arbitrator or mediator. …. Goldman disclosed that he had served as an arbitrator in proceedings involving MSSB on four occasions and was currently serving as an arbitrator in two pending MSSB arbitrations. … Neither party sought to disqualify him on the basis of these contacts with MSSB. After a two-day hearing, the panel unanimously determined that Ploetz’s claims were without merit. …
In February , Ploetz’s attorney learned that Goldman had served as a mediator in a 2012 proceeding in Michigan involving MSSB. …. Mediation under FINRA is voluntary and private, akin to settlement discussions, and thus there was no record of this proceeding and it was handled by attorneys not involved in the instant arbitration. The 2012 mediation was unsuccessful and that case eventually proceeded to arbitration, with the arbitration panel finding for the claimant and against MSSB. … There is no indication that Goldman was involved in the case after the unsuccessful mediation.
Petitioner Ploetz argued that Goldman’s failure to disclose his service as mediator in the earlier MSSB matter required vacating the 2017 arbitration award for “evident partiality”. She contended that the US Supreme Court’s 1968 decision in Commonwealth Coatings [MK: the only, and famously internally inconsistent, set of Supreme Court opinions seeking to apply the “evident partiality” vacatur grounds in the US Federal Arbitration Act] “sets forth a bright-line rule that when the parties bargain for disclosure of conflicts and the arbitrator fails to disclose a conflict, the arbitration award must be vacated.” Vacatur was required, said Ploetz, “because the parties agreed to be bound by the FINRA rules, and because the FINRA rules provide that failure to disclose is a “circumstance which might preclude the arbitrator from rendering an objective and impartial determination …, a refusal to vacate the award would frustrate the parties’ bargained-for legitimate expectations, not to mention the FAA’s standards.”
For that purpose, Ploetz also asserted that “it is inappropriate for the Court to consider any more recent appellate court interpretations of Commonwealth Coatings because the Supreme Court itself has not changed the Commonwealth Coatings holding.”
Judge Magnuson of the Federal District Court in Minnesota criticized that argument for treating the common-law system as “sclerotic.”
Her position that the law on this issue is sclerotic and may only be refined by the Supreme Court is not supported by either subsequent caselaw or by our legal system’s precedent-based jurisprudence, which relies on the evolution of legal principles through subsequent interpretations of Supreme Court opinions.
Automatic vacatur for arbitrator non-disclosure was not, therefore, mandatory. Instead, said the Judge, the party seeking vacatur must still satisfy the “heavy burden” of showing “evident partiality”; “Even if an arbitrator fails to make a disclosure regarding potential conflicts of interest, a party must still “demonstrate evident partiality” on the arbitrator’s part.” Moreover, “a party contending that an arbitration award should be vacated because of an arbitrator’s “evident partiality” bears a “heavy burden.””
Judge Magnuson then concluded that the failure by Goldman to disclose the 2012 MSSB mediation was not sufficient to show “evident partiality” in circumstances where the arbitrator had already disclosed 6 MSSB arbitrations without objection and the prior mediation had no demonstrated effect on the 2016-2017 arbitration.
Here, there is simply no evidence that Goldman’s prior mediation with MSSB had any effect on the resolution of Ploetz’s claim. Indeed, Goldman disclosed six other MSSB-related proceedings over which he had presided and those proceedings did not cause Ploetz to question his impartiality.
Mark Kantor is a CPR Distinguished Neutral. Until he retired from Milbank, Tweed, Hadley & McCloy, Mark was a partner in the Corporate and Project Finance Groups of the Firm. He currently serves as an arbitrator and mediator. He teaches as an Adjunct Professor at the Georgetown University Law Center (Recipient, Fahy Award for Outstanding Adjunct Professor). Additionally, Mr. Kantor is Editor-in-Chief of the online journal Transnational Dispute Management.
This material was first published on OGEMID, the Oil Gas Energy Mining Infrastructure and Investment Disputes discussion group sponsored by the on-line journal Transnational Dispute Management (TDM, at https://www.transnational-dispute-management.com/), and is republished with consent.