October 19, 2011 Articles

Ninth Circuit Departs from Fifth Circuit's Prohibition of Ex Parte Conduct by Arbitrators

By Olivia St. Clair

If an arbitration panel has ex parte communications with expert witnesses, is that grounds for vacating the award? The Ninth Circuit recently addressed this question in United States Life v. Superior National Insurance,591 F.3d 1167 (9th Cir. 2010), and held that the award should not be vacated unless the ex parte activity constitutes misconduct as described in section 10(a)(3) of the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 2–16. The Ninth Circuit expressly declined to follow the broad prohibition of ex parte meetings that the Fifth Circuit articulated in Totem Marine Tug & Barge, Inc. v. North American Towing, Inc., 607 F.2d 649 (5th Cir. 1979). Instead, the court held that it was bound by the Supreme Court's decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), to limit grounds for vacatur to those described in section 10 of the FAA. The ex parte conduct between the panel and its appointed experts did not violate either party's rights, and so vacatur was not a proper remedy.

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