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Savers Property and Casualty Insurance Co. v National Union Fire Insurance Company of Pittsburgh, PA

Case No. 13-2288 (C.A. 6, Apr. 9, 2014)

National Union Fire Insurance Company (“National Union”) appeals the grant of a preliminary injunction that halted an ongoing arbitration proceeding with Savers Property and Casualty Insurance Company, et al. (collectively, “Meadowbrook”). Because arbitration’s essential virtue is resolving disputes straightaway, judicial review of arbitral awards is extremely narrow and exceedingly deferential. In the absence of a final arbitration award, the district court should not have interjected itself into this private dispute. Accordingly, we reverse the judgment, dissolve the injunction, and remand for dismissal.

I. BACKGROUND



A. Factual Background



The underlying dispute that gave rise to this arbitration stems from a contract for reinsurance (the “Treaty”) between National Union and Meadowbrook. The Treaty required both parties to submit any reinsurance disputes to a three-member arbitration panel that would “make its decision with regard to the custom and usage of the insurance and reinsurance business” after entertaining evidence and conducting a hearing. The majority decision of the panel was to be final and binding upon all parties to the proceeding, and either side could seek judicial confirmation in any court of competent jurisdiction. Meadowbrook initiated this arbitration in February 2011 to settle matters surrounding its alleged practice of overbilling National Union for certain reinsurance programs.

As is customary in the reinsurance industry, the arbitration clause from the Treaty established a tripartite method of arbitration. Under this system, the panel was to be comprised of “two arbitrators and an umpire” who were “active or retired disinterested officials of the insurance or reinsurance companies, or Underwriters at Lloyd’s, London, not under the control of either party to this Agreement.” Each party was to appoint its own arbitrator, and then the two party-appointed arbitrators would select a neutral umpire. In the event that the party-appointed arbitrators disagreed in selecting an umpire, each side was to submit a list of three candidates, from which the opposing arbitrator would strike two. The umpire would then be chosen by lot from the remaining name on each list.
 

 

Judge(s): Guy Cole
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: ADR , Civil Procedure , Civil Remedies , Communications , Conflict of Laws , Construction , Contracts , Damages , Employment , Energy / Utilities , Government / Politics , Immigration , Insurance , International , Property , Torts
 
Circuit Court Judge(s)
Guy Cole
Joseph Hood
John Rogers

 
Trial Court Judge(s)
Victoria Roberts

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Conway Foley & Lardner LLP
Jonathan Garlough Foley & Lardner LLP
Scott Seabolt Foley & Lardner LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Keefe Brooks Brooks Wilkins Sharkey & Turco PLLC
Stephanie Douglas Bush Seyferth & Paige PLLC

 

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citizenship. despite acknowledging that courts are generally prohibited from reviewing savers property and casualty insurance company, et al. (collectively, “meadowbrook”). underlying procedural orders without his participation and input. accordingly, he would have greene stated that “[t]he panel . . . by majority, strikes [meadowbrook’s submission] in its arbitration award, the district court should not have interjected itself into this private dispute. local 550, united bhd. of carpenters & joiners of am. v. wells exterior trim, 828 f.2d 1373, fifth circuit explained, courts may adjudicate claims regarding the partiality of an arbitrator michigan, for appellant. keefe a. brooks, brooks wilkins sharkey & turco pllc, national union then removed the case to federal district court based on diversity of “to determine the extent and subject of all ex parte communications and affiliations that may amount of judicial interference . . . any other such rule could spawn endless applications to the established a tripartite method of arbitration. under this system, the panel was to be comprised replace the stricken submission. meadowbrook was given until august 19, 2013, to submit the § 1292(a)(1) and 9 u.s.c. § 16(a)(2) to consider national union’s appeal. michigan state court seeking to vacate the interim final award on the grounds that umpire │ filing of the parties’ initial pre-hearing briefs.” the filing date for pre-hearing briefs and the found a violation of the scheduling orders, stayed the arbitration, and ordered limited discovery erred by prematurely interjecting itself into this private dispute. injunction, and remand the case for dismissal without prejudice. this is not to suggest that seminar in a segment separate and distinct from mr. rosen’s segment is of meadowbrook “thereby implicitly agreed to defer judicial review until after the conclusion of the panel sees no merit in meadowbrook’s complaint that arbitrator (repealed 2012) (same). this provision was intended to place arbitration agreements on the conclusion of the arbitration and the rendition of a final award. because meadowbrook’s meadowbrook’s principal argument is that because the supreme court has “interjected arbitration proceeding or the partiality of an arbitrator is different in kind than challenging the (the “class determination award”).2 merely because a party claims that enforcement of the contract by its terms is at issue.” id. would become merely a prelude to more cumbersome and time-consuming judicial review decisions. thus, at the time the parties formed their contracts, they agreed to judicial review corp., 56 f.3d 603, 605 (5th cir. 1995) (“by its own terms, § 10 [of the faa] authorizes court cir. 1992). but ripeness alone is not a sufficient condition for interlocutory judicial review of we agree with meadowbrook’s initial concern. here, the arbitration panel issued an individuals put forward by national union, and after casting lots, he was named umpire. parties’ heavy reliance upon cases applying the faa, we will generally consider national federal courts may not graft a provision for interlocutory judicial review onto the otherwise national union fire insurance company of court does not have the power to review an interlocutory ruling by an arbitration panel. . . . a. factual background schlaybaugh dissented. he felt that the scheduling orders were clear on their face and arbitration regime. see uniform arbitration act, 2012 mich. pub. act no. 371 (codified at mich. comp. laws a court of competent jurisdiction to confirm or to vacate the class determination award. supplementary rules, nos. 13-2288/2289 plans, the parties in the dcs line of cases agreed in their underlying arbitration agreement to be judicial review of an ongoing arbitration proceeding. on the contrary, ripeness is a necessary matters” of arbitrability, “such as whether the parties have a valid arbitration agreement at all or reinsurance (the “treaty”) between national union and meadowbrook. the treaty required computer servs., inc. v. dub herring ford (dcs-i), 547 f.3d 558 (6th cir. 2008) (holding the defenses” to arbitration agreements, such as fraud or duress. see at&t mobility, 131 s. ct. at regarding the rules under which the arbitration was to proceed. the court then concluded that supposed to produce a speedy decision.” (internal quotation marks and ellipsis omitted)). rendition of a final award. in the alternative, national union argues that the district court abused absolutely no moment or relevance in relation to this proceeding and did not, in │ the issuance of the interim final award, which fully and finally resolved all generally be made to the arbitrator, subject only to limited post-arbitration judicial review as set after issuance of the interim final award constituted a breach of the rules action was required, and even then, only after repeated attempts to communicate with him provides that an arbitration agreement, like any other contract, is subject to rescission or the panel as follows: interim award resolving only the matter of liability; the panel retained jurisdiction to compute on august 6, meadowbrook filed a supplemental submission to the panel in response to appeal from the united states district court ii, 623 f.3d at 349–50; dcs-i, 547 f.3d at 559, 562. thus, the dcs parties likewise agreed to arbitrations concerning “transaction[s] involving commerce,” parties may agree to abide by state matter. national union rejects any contention that schlaybaugh was disenfranchised; national of “two arbitrators and an umpire” who were “active or retired disinterested officials of the star insurance company; ameritrust (“[a] prime objective of arbitration law is to permit a just and expeditious result with a minimum ┘ our own caselaw tracks this policy of permitting interlocutory judicial review where the parties’ this potential liability, meadowbrook moved the state court to stay the arbitration in order to greene and arbitrator rosen exceeded their authority under the treaty and that rosen displayed and the overall structure of the faa to preclude the interlocutory review of arbitration arbitrations by making interlocutory rulings . . . .”); folse v. richard wolf med. instruments proceedings and decisions. see quixtar, inc. v. brady, 328 f. app’x 317, 320 (6th cir. 2009) as a “final” award under island creek coal sales. nor could meadowbrook. none of the agreement within the coverage of the faa and presumptively governs in both state and federal national union’s damages. under these circumstances, the arbitration was not complete because meadowbrook to pay reinsurance reimbursements in excess of $25 million dollars. faced with court has explained, “[i]f parties could take full-bore legal and evidentiary appeals, arbitration process.” id. (internal quotation marks omitted). accordingly, the faa and michigan’s we have long recognized that the faa “manifests ‘a liberal federal policy favoring arbitration entertain meadowbrook’s premature challenge to the fairness of the proceedings and the nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 13 itself” into ongoing arbitrations in other contexts, the district court was likewise permitted (if not arbitration agreements that expressly provided for interlocutory judicial review of certain arbitral neither refers to the faa nor otherwise suggests that the parties sought to invoke its provisions. arbitral awards is extremely narrow and exceedingly deferential. in the absence of a final gateway matters of arbitrability, or at the end of an arbitration, to confirm, vacate, or modify a corey v. nyse, 691 f.2d 1205, 1212 (6th cir. 1982). ii. standard of review the panel sees no merit in meadowbrook’s complaint that arbitrator law, and michigan law governs our review. id. invalidation if there is a defect in the underlying contract containing the agreement to arbitrate. nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 12 s.a., 624 f.2d 411, 414 & n.4 (2d cir. 1980) (“under the federal arbitration act . . . a district co. v. city of gainsville, fla., 729 f.2d 1046, 1049 (6th cir. 1984) (holding that an “interim the next day, meadowbrook filed an emergency motion to clarify the panel’s prior ruling national union timely appealed, arguing that under the federal arbitration act (“faa”), provision has been breached is at issue.”). meadowbrook never alleged that the treaty itself was michigan, for appellees. inducement’ or some other ‘infirmity in the contracting process’ regarding the parties’ §§ 9–11; mich. ct. r. 3.602(i)–(k); oxford health plans, 133 s. ct. at 2068. therefore, under the appellate waiver doctrine, “we need not review this aspect of the district nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 4 arbitration] ostensibly mirror the faa.”). improper at this stage of the proceedings. ┐ the panel did not, however, calculate a final damages award at that time. instead, the whether to grant the injunction, and the plaintiff bears the burden of establishing its entitlement arbitration law contemplate only two stages at which courts may become involved in arbitration │ its discretion in granting the preliminary injunction. we have jurisdiction under 28 u.s.c. that courts may conduct interlocutory review “if the [arbitration] agreement is subject to attack clause construction award for a period of at least 30 days to permit any party to move a court of competent satisfied. see dealer computer servs., inc. v. dub herring ford (dcs-ii), 623 f.3d 348 (6th at the outset, the parties disagree (at times) over the substantive law we must apply in as umpire—disclosed that he was a personal friend of national union’s arbitrator. greene also the . . . arbitration.” quixtar, 328 f. app’x at 322. only when the panel ruled against where there was evident partiality or corruption in the arbitrators, it does not provide for pre- injunction for abuse of discretion, examining the district court’s legal conclusions de novo and of two scheduling orders with identical language regarding ex parte communications. those both parties to submit any reinsurance disputes to a three-member arbitration panel that would schlaybaugh. after the two men deadlocked in selecting an umpire, the parties exchanged slates meadowbrook to pay the sum-certain damages within fourteen days, and retained jurisdiction pittsburg, pa, no. 13-13807, 2013 wl 5182745, at *4 (e.d. mich. sept. 12, 2013) (concluding meadowbrook did it think better of the arrangement and decide to “help itself to an interlocutory or compel arbitration); mich. ct. r. 3.602(b)–(c) (same). then, at the conclusion of an the underlying dispute that gave rise to this arbitration stems from a contract for its attorneys’ fees and costs. the panel denied all other requests for relief, ordered courts and indefinite delay . . . .” (internal quotation marks omitted)); michaels, 624 f.2d at 414 plans, 133 s. ct. at 2068. what meadowbrook overlooks is that in both cases involved similarly, it is well established that a district court cannot entertain an attack upon the a. choice of law meadowbrook fails to cite a single decision from this circuit or any other in which a court injunctive relief in an arbitration proceeding. performance unlimited, inc. v. questar arbitration proceedings until a final award has been issued, the district court determined it could _________________ proceedings.”); see also, e.g., blue cross blue shield of mass., inc. v. bcs ins. co., 671 f.3d the arbitrator determines, as a threshold matter, whether the applicable arbitration clause permits publishers, inc., 52 f.3d 1373, 1378 (6th cir. 1995). we review the grant of a preliminary nevertheless, because the michigan arbitration act, mich. comp. laws § 600.5001 et may vacate an arbitration award “only in very unusual circumstances.” oxford health plans vacation at the time the orders were adopted and did not participate in deliberations on either arbitrators disagreed in selecting an umpire, each side was to submit a list of three candidates, straight-forward regime contemplated by the faa and the michigan arbitration act. both laws supplementary rule 3 states, “the arbitrator shall stay all proceedings following the issuance of the we will consider specific application of michigan law where the relevant provisions differ in orders. moreover, schlaybaugh was “troubled” that the other panel members issued the halted an ongoing arbitration proceeding under circumstances similar to those presented here. and michigan court rule 3.602 are “almost identical to the faa in all relevant respects,” moses h. cone mem’l hosp., 460 u.s. at 24), and several states, including michigan, have meeting transcript and scheduling orders entered in connection with this its factual findings for clear error. obama for am. v. husted, 697 f.3d 423, 428 (6th cir. 2012). generally call for judicial review only at the beginning of an arbitration, to decide certain documentation so that the panel could calculate national union’s final damages. after arbitration agreement expressly provides for it, assuming other article iii requirements are injunctive relief was proper because meadowbrook was likely to suffer irreparable harm from arbitral decisions. absent express or implied consent in the underlying agreement to arbitrate, nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 6 union’s attorney] also participated at airroc’s invitation as a panelist at that attendant cut-off date for ex parte communications was june 14, 2013. soon after, the panel argues that the communications were prohibited by the scheduling orders. nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 14 1748. by its limitation to grounds that justify “revocation of any contract,” the text of § 2 simply file name: 14a0067p.06 “make its decision with regard to the custom and usage of the insurance and reinsurance consulting with arbitrator rosen, national union’s attorney filed a motion to strike reasons—all of which support the purposes underlying the faa—for generally withholding nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 8 their terms. see rent-a-center, 130 s. ct. at 2776 (“the faa reflects the fundamental principle and practices of the reinsurance industry. national union disclosed these very communications rep. no. 68-96, at 1–2 (1924). accordingly, § 2 preserves “generally applicable contract united states court of appeals appeal.” blue cross, 671 f.3d at 637. tellingly, meadowbrook acknowledged in its amended b. judicial review was improper before issuance of a final arbitration award meadowbrook raised the same arguments it pressed in state court—namely, that rosen failed to challenges to the arbitrability of a given dispute by granting motions to stay judicial proceedings that. under the treaty’s general choice-of-law provision and the arbitration clause, both parties bound by the aaa’s commercial arbitration rules, including the supplementary rules. dcs- congress enacted the faa in 1925 to counter widespread judicial hostility to private again after the arbitrator determines if the arbitration should indeed proceed as a class arbitration union argues that greene issued the orders without schlaybaugh’s participation because swift nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 17 of its orders governing ex parte contact as well as the customs and practices the arbitration to proceed on behalf of or against a class (the “clause construction award”) and evident partiality. the crux of meadowbrook’s complaint was that rosen failed to disclose that § 10’s limitation on judicial review of non-final awards. id. challenging the fairness of an whether an arbitration award is “final” for purposes of judicial review. island creek coal sales action only after a final award is made by the arbitrator.”); michaels v. mariforum shipping, unsatisfied with the panel’s procedural orders, meadowbrook filed a complaint in the honorable joseph m. hood, united states district judge for the eastern district of kentucky, sitting of either party to this agreement.” each party was to appoint its own arbitrator, and then the two nothing in the text or history of the faa suggests that § 2 was intended to displace national union for certain reinsurance programs. meadowbrook to provide supporting documentation with respect to other reinsurance programs 559 u.s. at 670 & n.2; see also oxford health plans, 133 s. ct. at 2067–68 (entertaining an opinion the panel’s view, constitute a matter requiring disclosure . . . . establishing the rules under which the arbitration is to proceed . . . . whether that contract 635, 638 (7th cir. 2011) (observing “that judges must not intervene in pending arbitrations” and award” that finally and definitively disposed of a separate, discrete, self-contained issue may be substance. http://www.adr.org/aaa/showpdf?url=/cs/groups/commercial/documents/document/dgdf/mda0/~edisp/adrstg_0041 keefe a. brooks, brooks wilkins sharkey & turco pllc, birmingham, michigan, provisions from 9 u.s.c. § 2. therefore, the district court erred in relying on that provision to issuance of a final arbitration award. see gulf guar. life ins., 304 f.3d at 490–91. │ following the issuance of the class determination award for a period of at least 30 days to permit any party to move 1 savers property and casualty insurance co.; based upon the text, structure, and purpose of the faa, which all foster a speedy and less in all relevant respects, during any subsequent arbitration. by initiating this arbitration, condition for pursuing any case in federal court. thomas v. union carbide agric. prods. co., state law. compare 9 u.s.c. § 10(a), with mich. ct. r. 3.602(j)(2) (governing the vacatur of panel was to be final and binding upon all parties to the proceeding, and either side could seek of mid-arbitration review at issue here. we are not persuaded. insurance or reinsurance companies, or underwriters at lloyd’s, london, not under the control c. the instant appeal nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 2 rule 5(d). v. communications. the court also concluded that there would be no substantial harm to national action” predicated on schlaybaugh’s purported disenfranchisement and rosen’s ex parte prior to issuance of a final award “only when there is a claim . . . that there was ‘fraud in the │ seminar held at foley & lardner’s offices earlier this year. that [national seq.,1 “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity under the choice-of-law provisions from the treaty, michigan law governs our review. despite were submitted to arbitration” (internal quotation marks omitted)), abrogated on other grounds concluded its work and issued a final award. the district court recognized the general prohibition on interlocutory review of as is customary in the reinsurance industry, the arbitration clause from the treaty ambiguity over the type of judicial review that 9 u.s.c. § 2 does and does not permit. in doing c. interlocutory judicial review was improper under 9 u.s.c. § 2 national union maintains was permissible under the panel’s scheduling orders and the customs governing ex parte contact in this proceeding. a review of the organizational co., 2013 wl 5182745, at *4 (“[t]his dispute surrounds a contract provision in the treaty agreements,’” masco corp. v. zurich am. ins. co., 382 f.3d 624, 626 (6th cir. 2004) (quoting accordingly, we reverse the judgment, dissolve the injunction, and remand for dismissal. 2068 n.2. (internal quotation marks omitted); see 9 u.s.c. §§ 3–4 (authorizing courts to entertain interpreting the faa. the district court’s analysis was equally muddled—relying, at times, on “capable of immediate calculation,” and, in an effort to mete out a final award, ordered by cortez byrd chips, inc. v. bill harbert constr. co., 529 u.s. 193 (2000). jurisdiction to confirm or to vacate the clause construction award. am. arbitration john hancock life ins. co., 631 f.3d 869, 874 (7th cir. 2011) (observing that if parties could forth in section 10 of the faa.”); laprade v. kidder peabody & co., inc., 146 f.3d 899, 903 nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 3 no authority under the faa for a court to entertain such challenges [to the arbitrator selection for the revocation of any contract.” 9 u.s.c. § 2; see also mich. comp. laws § 600.5001(2) argued: michael m conway, foley & lardner llp, chicago, illinois, for appellant. interim final award, meadowbrook amended its state-court complaint to reflect those facts. (“aaa”), which incorporate the aaa’s supplementary rules for class arbitrations. stolt- by designation. protected from judicial review. meadowbrook is entitled to its day in court to challenge the nielsen s.a. v. animalfeeds int’l corp., 559 u.s. 662, 670 n.2 (2010); see also oxford health challenge the fundamental fairness of the proceedings. eeoc v. waffle house, inc., 534 u.s. 279, 294 (2002); accord rent-a-center, west, inc. v. required) to do so here, provided that article iii ripeness requirements were satisfied. see stolt- from which the opposing arbitrator would strike two. the umpire would then be chosen by lot > party-appointed arbitrators would select a neutral umpire. in the event that the party-appointed llc v. sutter, 133 s. ct. 2064, 2068 (2013) (internal quotation marks omitted). as the supreme hooters of am., inc. v. phillips, 173 f.3d 933, 941 (4th cir. 1999) (“[f]airness objections should in this case, the district court’s decision falls on the wrong side of the line. see star ins. 473 u.s. 568, 579–80 (1985); bigelow v. mich. dept. of natural res., 970 f.2d 154, 157 (6th app’x 517, 522–23 (6th cir. 2012) (quoting 9 u.s.c. § 2 and volt info. scis., inc. v. bd. of trs. that arbitration is a matter of contract. . . . the faa thereby places arbitration agreements on an such a sizeable financial liability and was likely to succeed on the merits “in a breach of contract exist or existed and have not been disclosed.” rules of arbitration, and “enforcing those rules according to the terms of the agreement is fully 2 not be disturbed, unless the agreement is subject to attack under general contract principles as for the sixth circuit establishing arbitral qualifications” that could serve to invalidate the agreement to arbitrate. gulf (citing 14 penn plaza llc v. pyett, 556 u.s. 247, 257 (2009)). it known of rosen’s speaking engagements. when meadowbrook learned that rosen and court. see moses h. cone mem’l hosp. v. mercury constr. corp., 460 u.s. 1, 24 (1983). thus, unenforceable under traditional contract defenses; nor did meadowbrook ever avail itself of the ass’n, supplementary rules for class arbitrations, rule 3 (2003), available at arbitration proceeding, courts are authorized to enter an order confirming, vacating, or modifying (same). arbitration proceeding, since applications for interlocutory relief result only in a waste of time, agreed that any arbitration shall be “subject to the laws of the state of michigan.” the treaty meadowbrook alleges that both panel orders disenfranchised schlaybaugh, who was on meadowbrook draws the wrong lesson from these cases and assumes that because its cole, circuit judge. national union fire insurance company (“national union”) and to extend the deadline for its replacement submission. greene again responded in an august orders stated, “ex parte communications with any member of the panel shall cease upon the he had been a guest speaker at a conference with national union’s attorney during the course of nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 11 interlocutory arbitration award on the availability of class arbitration, assuming ripeness. see arbitration was ongoing, and because the panel had not yet issued a final award, the district court simultaneously, meadowbrook protested the panel’s orders within the arbitration but meadowbrook does not argue that the interim final award or the panel order arbitration agreements. at&t mobility llc v. concepcion, 131 s. ct. 1740, 1745 (2011). the panel ordered meadowbrook to pay national union $1,950,680.48 for damages that were appeals the grant of a preliminary injunction that halted an ongoing arbitration proceeding with meadowbrook’s revised paragraph 4 submission. national union requested that the panel order claim to be completely determined, the arbitrators must have decided not only the issue of incorporated michigan court rule 3.602, in this appeal. see mich. comp. laws § 600.5021 (repealed 2012); mich. arbitration proceedings. section 2 of the faa provides that a written arbitration agreement the panel held an organizational meeting on august 1, 2012, at which it adopted the first national insurance co.; argument, regarding disclosure of rosen’s speaking engagements, greene and rosen ruled for meadowbrook’s arbitration belongs. review the matter by re-casting meadowbrook’s challenge as a breach of contract dispute arbitration in february 2011 to settle matters surrounding its alleged practice of overbilling nevertheless, we address this portion of the district court’s decision to resolve any denying meadowbrook’s motion for reconsideration and motion to stay the proceedings qualifies judicial confirmation in any court of competent jurisdiction. meadowbrook initiated this 29.pdf [hereinafter “supplementary rules”]. rule 5 likewise provides, “the arbitrator shall stay all proceedings greene and rosen also rejected meadowbrook’s claim that rosen violated the rules │ proceedings or the partiality of the arbitrators until after the conclusion of the arbitration and the exist at law or in equity.” (citations, brackets, and internal quotation marks omitted)). as the prior to the issuance of a final arbitration award. but that is not the class of cases to which this appeal. national union argues that the faa applies. meadowbrook asserts, however, that request for relief was purportedly ripe, the district court was empowered to conduct interlocutory liability of a party on the claim, but also the issue of damages.”); accord union switch & signal after the panel denied meadowbrook’s motions, national union responded to from the remaining name on each list. to halt this ongoing arbitration proceeding was plainly improper. when the parties inked their (d.c. cir. 1998) (“the arbitration act contemplates that courts should not interfere with because arbitration’s essential virtue is resolving disputes straightaway, judicial review of nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 9 same for clause construction awards). like the parties in stolt-nielsen and oxford health uhl, 512 f.3d at 303, this choice-of-law determination bears little impact on our analysis or in addition to these textual and structural considerations, there are sound policy condition to confirming or vacating an interlocutory arbitral ruling, just as ripeness is a necessary issues of liability in favor of national union. id. at 1748. this “body of federal substantive law of arbitrability” applies to any arbitration nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 16 obtain interlocutory review of arbitral decisions, “[t]hat would be the end of arbitration as a nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 5 supplementary rules in turn provide for two stages of interlocutory judicial review: once after the arbitration. meadowbrook alleged it would have moved to disqualify rosen and greene had arbitral awards on the availability of class arbitration and argues that those cases permit the type recommended for full-text publication reinsurance treaty, they explicitly agreed to be bound by michigan law, which mirrors the faa consistent with the goals of the faa.” muskegon cent. dispatch 911 v. tiburon, inc., 462 f. _________________ accordingly, the awards fail to satisfy the complete arbitration rule, and judicial review was end upon the panel ruling on the merits of this dispute. that was occasioned upon nielsen, 559 u.s. at 668; see also oxford health plans, 133 s. ct. at 2067. the aaa’s rendition of an award.”); travelers ins. co. v. davis, 490 f.2d 536, 541–42 (3d cir. 1974) meadowbrook’s submission, alleging that the document was “insufficient.” umpire greene meadowbrook’s pleadings and 9 u.s.c. § 2. see star ins. co. v. nat’l union fire ins. co. of lardner llp, chicago, illinois, scott t. seabolt, foley & lardner llp, detroit, award has been rendered, then this action should be dismissed without prejudice.” in this review, we look to the same four factors the district court considered in determining “same footing as other contracts” and thereby overcome judicial hostility to arbitration. h.r. │ nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 7 union’s appeal with respect to cases interpreting the faa. see uhl, 512 f.3d at 303. however, div. am. standard, inc. v. united elec., radio & mach. workers of am., local 610, 900 f.2d proceeding readily establish that the prohibition on ex parte contact came to an appointed arbitrators, but is consistent with the panel’s intent and understanding governing ex parte communications, ruling as follows: that the ex parte communications between rosen and national union’s attorney violated those with the parties’ expressed intentions relative to ex parte contact with the party (“[c]ourts generally should not entertain interlocutory appeals from ongoing arbitration parte communications following issuance of the interim final award. arbitration). but in stolt-nielsen, the parties expressly agreed that their arbitration would be appeal from a motion to vacate an arbitrator’s interlocutory award on the availability of class awards in question “finally and definitively dispose[d] of a separate independent claim.” id. and their retained risk. the panel also ordered meadowbrook to reimburse national union for §§ 691.1681–.1713). however, the act provided that the old regime would govern arbitration proceedings respects.”); see also phillip j. derosier, judicial review of arbitration awards under federal process or the unfairness of an arbitration] prior to [the] issuance of the arbitral award.”); arbitration awards). given the similarities between federal and state law, the lack of caselaw meadowbrook is without remedy, or that the arbitrators’ decision-making will forever be and michigan law, mich. b.j., feb. 2013, at 34, 36 (“[t]he michigan court rules [governing award removal of an arbitrator. thus, an agreement to arbitrate before a particular arbitrator may i. background the michigan legislature enacted a uniform arbitration act in 2012 that repealed the state’s previous gulf guar. life ins. co. v. conn. gen. life ins. co., 304 f.3d 476, 488 (5th cir. 2002) (“we find (“[a] district court should not hold itself open as an appellate tribunal during an ongoing counsel 9 u.s.c. § 1 et seq., parties to an ongoing arbitration may not challenge the fairness of the b. procedural background “a court may not entertain [pre-award] disputes over the qualifications of an arbitrator to serve judicial review until the conclusion of an arbitration proceeding. see, e.g., trustmark ins. co. v. interpreting michigan court rule 3.602 in the context of mid-arbitration judicial review, and the argued: march 21, 2014 connections with the parties and their arbitrators. thomas greene—who was ultimately selected michigan arbitration act alone, as national union and meadowbrook did here, we must enforce governed by the commercial arbitration rules of the american arbitration association pursuant to sixth circuit i.o.p. 32.1(b) of leland stanford junior univ., 489 u.s. 468, 479 (1989)); see also uhl v. komatsu forklift iv. conclusion enforced these arbitration agreements, which call for interlocutory judicial review, according to speedy and (relatively) low-cost alternative to litigation”); gulf guar. life ins., 304 f.3d at 492 existing in the conduct of reinsurance arbitrations. whether a concededly binding arbitration clause applies to a certain type of controversy.” id. at award.” the order instructed meadowbrook to file a conforming submission or risk a damages determination award under 9 u.s.c. § 10 if the motion satisfied ripeness concerns); dealer rosen’s communications with [national union’s attorney] and his colleagues plaintiffs-appellees, this choice-of-law determination is whether the parties unambiguously intended to displace the for appellees. on brief: michael m conway, jonathan w. garlough, foley & fairness of the proceedings and the partiality of the arbitrators—just not until the panel has _________________ no. 2:13-cv-13807—victoria a. roberts, district judge. for the foregoing reasons, we reverse the judgment of the district court, dissolve the only to “adjudicat[e] those items requiring additional submissions”—i.e., to calculate national § 10 or michigan court rule 3.602(j) following the conclusion of the proceedings and the calculation based solely on national union’s submissions. this assertion, meadowbrook grounds its arguments almost entirely on federal caselaw │ d. this award was not “final” for purposes of island creek coal sales to maintain “arbitration’s essential virtue of resolving disputes straightaway,” courts 110 f.3d 892, 895 (2d cir. 1997) (“although the faa provides that a court can vacate an award of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” during an ongoing arbitration, 9 u.s.c. § 10 represents a proper vehicle to challenge an * profit corporation that publishes guidelines and best practices for reinsurance arbitrations. rosen did not disclose his participation at the airroc regional education meadowbrook has never invoked § 2, which pertains only to the revocability of an arbitration faa with state rules of arbitration. muskegon, 462 f. app’x at 523. here, the parties did just nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 15 may not challenge the fairness of the proceedings or the partiality of the arbitrators until the arbitration processes is to allow for efficient, streamlined procedures tailored to the type of at lloyds for 1998 year of account, 618 f.3d 277, 288–89 (3d cir. 2010). the central inquiry in union’s damages prior to issuing a final arbitration award. proceeding itself by filing a motion for reconsideration and a motion to stay all proceedings. responded to the parties’ filings in an august 12 order signed, “for the panel.” in that order, formal method of dispute resolution, we conclude that the district court erred in entertaining this cir. 2010) (accepting that the district court could consider a motion to vacate a class the panel from issuing any further orders without the court’s approval. disposition. as in uhl, the statutory language at issue here is nearly identical under federal and insurance corporation; williamsburg clarifying what documentation must be submitted and granting the request for additional time to qualifications or partiality of arbitrators until after the conclusion of the arbitration and the to the relief requested. autocam corp. v. sebelius, 730 f.3d 618, 624 (6th cir. 2013). d. meadowbrook’s arguments in support of interlocutory review are without merit review. over the years, our court and several of our sister circuits have interpreted that silence co., ltd., 512 f.3d 294, 302–03 (6th cir. 2008); ario v. underwriting members of syndicate 53 512 f.3d at 303 (“michigan’s arbitration law is almost identical to the faa in all relevant 1376 (9th cir. 1987) (same). accordingly, meadowbrook’s action was premature. confirmed “notwithstanding the absence of an award that finally disposes of all the claims that 1 pittsburg, pa, final arbitration award. where the parties agree to arbitrate a matter under either the faa or the union, and that public policy favored issuance of the injunction. accordingly, the court enjoined proved fruitless. national union also notes that schlaybaugh’s participation would not have conducted a hearing, and on july 23 issued a unanimous “interim final award” resolving all nos. 13-2288/2289 savers prop. & cas. ins. co., et al. v. nat’l union fire ins. page 10 equal footing with other contracts and requires courts to enforce them according to their terms.”). entirety as being non-responsive to and non-compliant with paragraph 4 of the interim final underlying contract that contained the agreement to arbitrate. see aviall, inc. v. ryder sys., inc., of candidates and asked them to complete a questionnaire detailing their experience and liability aspects attendant to this dispute. . . . this conclusion not only comports national union’s attorney, and that rosen and national union’s attorney engaged in improper ex 13 order signed, “for the panel.” greene stated that “the majority rules as follows,” before jackson, 130 s. ct. 2772, 2776 (2010). “the point of affording parties discretion in designing defendant-appellant. arbitration proceedings but granted the injunction anyway under a strained reading of │ altered the orders because under the treaty, a two-member majority may rule for the panel. national union named jonathan rosen as its arbitrator, and meadowbrook named rex finally, we acknowledge that our court does not exalt form over function in determining accordingly, the parties unambiguously intended to displace the federal standard with michigan disclose his participation in a reinsurance industry educational seminar held at the law offices of │ interlocutory judicial review of certain arbitral decisions. see supplementary rules 3, 5(d). by a 2-1 vote, the arbitration panel denied both motions. as to meadowbrook’s first guar. life ins., 304 f.3d at 491 (emphasis added) (quoting aviall, 110 f.3d at 896). in contrast, we review de novo whether a district court may entertain a motion for preliminary proceedings. at the outset of any dispute, the laws authorize courts to decide certain “gateway agreement under traditional contract defenses, as a basis to justify its request for injunctive relief. that had gone into effect on june 14. nevertheless, national union’s attorney and arbitrator ct. r. 3.602(a) (“this rule governs statutory arbitration under mcl 600.5001-600.5035.”). under this statutory framework, meadowbrook’s request that the district court intervene the award, but even so, awards may be disrupted only under narrow circumstances. see 9 u.s.c. so, we conclude that the district court erred in relying on § 2 to permit interlocutory review of the noting that “[r]eview comes at the beginning or the end, but not in the middle” of arbitration); given the contractual nature of arbitration, it is no surprise that the supreme court has that an arbitration award is not final where it determines liability but not damages); millmen iii. analysis instead, meadowbrook points to a string of cases involving judicial review of interlocutory interlocutory challenge to an ongoing arbitration proceeding. parties to an arbitration generally by way of example, in stolt-nielsen, the supreme court silently accepted that even 608, 610–12 (3d cir. 1990) (collecting cases and holding under “the complete arbitration rule” national union’s attorney had resumed their ex parte communications following issuance of the although the faa generally preempts inconsistent state laws and governs all aspects of arbitration under the faa is contract-driven and principally “a matter of consent.” there was no “final” award. see, e.g., michaels, 624 f.2d at 413–14 (“generally, in order for a between these two stages, however, the laws are largely silent with respect to judicial paragraph 4 of the interim final award, which had directed meadowbrook to provide supporting court’s decision.” radvansky v. city of olmstead falls, 395 f.3d 291, 310–11 (6th cir. 2005). partiality of the arbitrators. those issues are properly raised in a motion to vacate under 9 u.s.c. under general contract principles” (internal quotation marks omitted)). but on appeal, overarching purpose of the faa, evident in its text and structure, “is to ensure the enforcement their contract according to its terms. see rent-a-center, 130 s. ct. at 2776. despite greene’s connections to rosen, meadowbrook selected greene from the slate of commenced prior to july 31, 2013. mich. comp. laws § 691.1713. we therefore look to that regime, which the interruption of the arbitration proceeding, and delaying tactics in a proceeding that is _________________ when it submitted its bill of costs to meadowbrook and the panel. meadowbrook, however, birmingham, michigan, stephanie a. douglas, bush seyferth & paige pllc, troy, before: cole and rogers, circuit judges; hood, district judge.* desirable” because it “reduc[es] the cost and increase[es] the speed of dispute resolution.” id. meadowbrook does not argue that interlocutory review was proper under § 2. in fact, decided and filed: april 9, 2014 state-court complaint that “if it is determined that this action is premature because no ‘final’ │ the interim final award was silent with respect to the ban on ex parte communications for the eastern district of michigan at detroit rosen resumed ex parte communications immediately following issuance of the award, which followed congress’s lead by enacting arbitration acts that largely mirror the faa. see uhl, business” after entertaining evidence and conducting a hearing. the majority decision of the supporting documentation the panel had requested in its interim final award. both the faa and michigan law to support its review and issuance of the injunction. disclosed that, like rosen, he was a member of the reinsurance industry group arias, a not-for- dispute.” at&t mobility, 131 s. ct. at 1749. moreover, the informality of arbitration “is itself


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