Issues of arbitral procedure belong to arbitrators, not courts. In 2002, the Supreme Court's opinion in Howsam identified as exceptions to this rule only two, "gateway" issues of arbitrability: "whether the parties are bound by a given arbitration clause" and "whether an arbitration clause in a concededly binding contract applies to a particular type of controversy." In all nine of its subsequent decisions related to arbitration and the Federal Arbitration Act ("FAA"), the Supreme Court has consistently maintained the strong federal policy favoring arbitration and the restricted nature of judicial involvement in and review of arbitral awards. Likewise, federal courts of appeal have uniformly rejected invitations to intrude into pending arbitrations, including attempts to disqualify sitting arbitrators. Against this body of law stands a recent decision in which a federal district court interrupted a pending arbitration, over four years after its commencement and shortly before the hearing on the merits, to decide an issue of arbitral procedure and enjoin a party from using its chosen party-arbitrator. Trustmark Insurance Co. v. John Hancock Life Ins. Co., No. 09 C 3959, 2010 U.S. Dist. LEXIS 4698 (N.D. Ill. Jan. 21, 2010) (appeal pending) ("Trustmark II"). Trustmark II is more than aberrational, it is simply wrong.
On January 12, in its Stamford office, Day Pitney held a 2-part, complimentary CLE program on cybersecurity issues facing the insurance industry.
Day Pitney Alert
On November 17 – 18, Michael Mullins will speak at the ARIAS U.S. Fall Conference and Annual Meeting at the New York Marriott Marquis.
Dan FitzMaurice authored an article, "Cyber Security and Data Security: What are the risks for insurance and reinsurance arbitrations," for ARIAS•U.S. Quarterly-Q3 2016.
Jonathan Handler and David Lieberman wrote an article, "Citizenship of LLCs and Subject Matter Jurisdiction in the Federal Courts: A Serious Concern Begging for Resolution," for Bloomberg BNA's Securities Regulation & Law Report. The article is about how many practitioners fail to understand a key legal distinction between LLCs and corporations as it relates to their state of citizenship.
Day Pitney Press Release
On January 5, Day Pitney hosted a speech by Robert L. Capers, the U.S. Attorney for the Eastern District of New York, to the White Collar Crime Committee of the American Bar Association's Business Law Section (WCCC) at the firm's New York City office.
Eric Fader was quoted in an article, "Unknown Future of ACA Puts Blues Plans In an Uncomfortable Spot Heading Into '17," published in The AIS Report on Blue Cross and Blue Shield Plans.
Bill Goddard was quoted in an article, "4 Key Battles To Watch Over NAIC's Cyber Model Law," in Law360. The article is about the National Association of Insurance Commissioners draft of a model law outlining how insurers must safeguard consumers' information and respond in the event of a data breach.
John McLafferty was quoted in an article,"New pay equity law offers fertile ground for litigation," in Massachusetts Lawyers Weekly.