On January 3, 2023, a rehearing panel of the Fifth Circuit issued a per curiam decision holding that the courts can consider facts relating to arbitrability and non-party signatory and alter ego issues that become part of the record after the district court first compelled arbitration. The rehearing panel also held that, in circumstances where the petitioner did not contest particular facts, it was appropriate to give deference to the arbitrator's findings of fact. In the Matter of: Jon Amberson (5th Cir. Docket No. 21-50960, January 3, 2023).
In Jon Amberson, a three-person appellate panel agreed to rehear parts of their previous appellate decision in the same case. The panel then denied petitioner Amberson’s arguments for vacatur.
On rehearing, the court of appeals made the following significant statements about the ability of the federal courts to consider the record developed at the arbitration, including the arbitrator's findings of fact, to resolve arbitrability and non-signatory issues in later vacatur/confirmation proceedings even though those facts were not in the judicial record at the time the lower court compelled arbitration.
Amberson is insisting that . . . our review after the arbitration is limited to the record that existed at the [time that the parties were compelled by the lower court to go to arbitration].
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In this appeal, . . . the questions are the arbitrability of a particular claim and the validity of an award against Amberson, individually. How those questions should have been answered early in the case before the record was as developed as it is now does not matter.
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[It would be] wasteful . . . to disregard the final-judgment record that demonstrates arbitration was properly compelled and reject an arbitration award because the earlier record did not yet so demonstrate. If review is unavailable until after final judgment, it is senseless not to use the final-judgment record.