Director of Arbitration to Alan Kaplin- sky, a prominent Philadelphia defense lawyer who principally represents banks. There, NAF warned Mr. Kaplinsky that the “class action bar” is threatening to bring lawsuits involving the Y2K issue, and stated that the “only thing” that will “prevent” such suits would be the adoption of an NAF arbitration clause “in every contract, note and security agreement.” The approach in this letter was not that of an even-handed neutral arbitration forum, but of an advocate advising defense counsel how to defeat a mutual adversary (“the class action bar”).5 These sorts of solicitations and prom-
ises highlight why a trial lawyer might be reluctant to entrust a client’s case to a dispute resolution forum that permits
5
Copies of these documents are posted on our website,
www.publicjustice.net, under the heading of “legal briefs,” as attachments to our briefs in the case of McQuillan v. Check ‘N Go.
companies to hand pick private judging services to replace publicly accountable courts. These arbitration companies wish to supplant the publicly account- able system of courts and juries, but they have not held themselves to the same standards of independence and neu- trality as those imposed on courts and juries. NAF in particular has effectively promised corporate defendants that its procedures will insulate them from a broad category of potential liabilities by preventing consumers with small claims from having any meaningful means of relief. If a judge were to solicit business from a party that might come before it with strong ex parte hints that the solic- ited party would get a good deal in the judge’s courtroom, there is no doubt that this would be improper or sanctionable behavior. The problems with arbitrator deci-
sion-making are exacerbated, for many trial lawyers, by the fact that there is no meaningful judicial review of arbi- trators’ decisions. Under current law, arbitrators enjoy near complete freedom
to ignore their own rules, the facts, and even the law in any given case, without fear that their rulings will be seriously examined by any later court – and without fear of personal or professional consequences.6
6
The general rule is that judicial review of arbitrators’ decisions “is very narrow; one of the narrowest standards of judicial review in all of American jurisprudence.” Lattimer-Stevens Co. v. United Steelworkers of Am. Dis. 27, 913 F.2d 1166, 1169 (6th Cir. 1990). For example, Judge Posner remarked in a decision issued last year that courts should not review arbitrators’ in- terpretations of contracts even if they are “wacky,” so long as the arbitrator attempt- ed to “interpret the contract at all.” Wise v. Wachovia Securities, Inc., 450 F.3d 265, 269 (7th Cir. 2006). The year before, the Third Circuit held that a “glaring mistake” did not justify overturning an arbitrator’s decision. Brentwood Medical Associates v. United Mine Workers of America, 396 F.3d 237, 238 (3d Cir. 2005). The U.S. Supreme Court held that “courts are not authorized to review the arbitrator’s decision on the merits” even if the arbitrator’s fact finding was “silly.” Major League Baseball Players Assn v. Garvey, 532 U.S. 504, 509 (2002).
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Arthur E. Kurlanzik, M.D. Neurological Services Fall 2007 Trial Reporter 39
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