On December 4, 2020, the Administrative Board of the Courts sought public comment on the Commercial Division Advisory Council’s (“CDAC”) proposed amendment to Commercial Division Rule 3(a), 22 NYCRR § 202.70(g). The current language of Rule 3 permits the court to direct, or for counsel to seek, the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some issues presented in the litigation The CDAC’s Rule 3(a) proposal would “permit the use of neutral evaluation as an [alternative dispute resolution (“ADR”)] mechanism and to allow for the inclusion of neutral evaluators in rosters of court-approved neutrals.” Currently, under Part 146 of the Rules of the Chief Administrative Judge, “neutral evaluation” is “a confidential, non-binding process in which a neutral third party (the neutral evaluator) with expertise in the subject matter relating to the dispute provides an assessment of likely court outcomes of a case or an issue in an effort to help parties reach a settlement.” The Chief Administrative Judge’s rules already set forth the training prerequisites to become a neutral evaluator.
Commercial Division Confirms Arbitration Award Entered Against Party Who Objected to the Jurisdiction of the Arbitrators but Failed to Seek a Stay of the Arbitration
In Fava v. Morgan Stanley Smith Barney, Inc., Justice Barry R. Ostrager of the New York County Commercial Division denied Petitioner Frank Fava’s (“Fava”) motion to vacate an arbitration award issued by the Financial Industry Regulatory Authority (“FINRA”), and granted Respondent Morgan Stanley Smith Barney, Inc’s (“Morgan Stanley”) request to confirm the award. The opinion addresses whether a party who objects to an arbitration panel’s jurisdiction but participates in arbitration may vacate an arbitral award on the ground that the arbitrators exceeded the scope of their authority.
Modeling Agency’s Early Victory in Dispute Over Alleged Fashion Model Poaching Proves Pyrrhic Due to Failure to Commence Arbitration On Time
In the 2001 film Zoolander, male model Derek Zoolander mused, while giving the “eugoogly” at the funeral for three deceased model friends, that a “model’s life is a precious, precious commodity.”
Commercial Division Rules that Arbitration Awardee Lacked Standing to Enforce Award Based on Collection Procedures Agreed to in the Underlying Contract
Arbitration is a creature of contract and, as such, enforcing an arbitral award requires strict adherence to the procedures set forth in the relevant agreements. This is true even where those procedures might preclude a party to the arbitration from taking steps to enforce its own award. In Zachariou v. Manios, Justice Andrea Masley of the Commercial Division dismissed an awardee’s enforcement action for lack of standing on the ground that the relevant arbitration agreement conferred exclusive authority over collecting and enforcing party distributions to a third-party trustee—and not to the plaintiff.
New York’s International Arbitration Center Hosts Welcome Reception for Commercial Division’s New International Arbitration Justice
On June 11, 2019, the New York International Arbitration Center (“NYIAC”) and members of New York’s international arbitration bar held a reception to welcome Justice Saliann Scarpulla of the New York County Commercial Division. Earlier this year, Justice Scarpulla assumed responsibility for the Commercial Division’s specialized international arbitration part and, in that role, will hear all international arbitration matters coming before the Court.
In Matter of Capital Enterprises Co. v. Dworman, the Appellate Division, the First Department held that an arbitrator has broad discretion to order the dissolution of a New York general partnership, so long as the issue of dissolution was within the scope of the arbitration clause and the question of whether to dissolve the partnership was properly before the arbitrator. In so doing, the First Department affirmed an order issued by Commercial Division Justice Jennifer G. Schecter which confirmed an arbitration award that had ordered a dissolution of a partnership.
Beginning in April 2019, the First Department has changed its practice to assign panels of four justices for oral argument, as opposed to five justices as has been the traditional practice of the court. This change is the result of three ongoing vacancies on the First Department that have remained unfilled by Governor Cuomo. The Presiding Justice of the First Department, Hon. Rolando Acosta, explained that the move to four justice panels is necessary because there are not enough judges to hear all the pending appeals. Aware that four justice panels could create a two-to-two split, Presiding Justice Acosta explained that a fifth judge can be brought in to issue a decision if needed. Parties can preserve their right to reargue or submit the case to a fifth justice by making a statement on the oral argument record. This change will likely remain in place until new judges are appointed to the court.
Following Justice Charles Ramos’s retirement from the Commercial Division at the end of last year, commercial practitioners have awaited an announcement reallocating responsibility for the Division’s international arbitration matters. Since 2013, all international arbitration cases filed in the Commercial Division—including those arising under CPLR Article 75 and the Federal Arbitration Act, 9 U.S.C. § 1 et seq.—had been assigned to Justice Ramos as part of an effort to establish a dedicated part specializing in the international arbitration field.
Non-Party to Arbitration Agreement Successfully Petitions the Commercial Division to Avoid Being Compelled to Join Arbitration
Arbitration is a matter of contract and, as such, non-parties generally cannot be compelled to arbitrate under agreements that they have not signed or agreed to. In IQVIA RDS Inc. v. Eisai Co. Ltd., the Commercial Division recently highlighted two exceptions to this general rule. Although the Court ultimately found neither exception to be applicable, the case raises important issues that merit attention.
Commercial Division Holds that Failure to Request Rationale for Arbitration Award Makes It Virtually Unreviewable on Manifest Disregard Ground
Parties to arbitration proceedings at times decide to forego a written decision by the arbitration panel explaining the basis for their arbitration award. While doing so may reduce the costs of arbitration and can provide other strategic advantages, it also makes it more likely that the Commercial Division will find the award unreviewable. This point is exemplified by the recent decision by Justice Charles E. Ramos of the Commercial Division in NSB Advisors, LLC v. C.L. King & Associates, Inc.
First Department Rules that Arbitrators Did Not Manifestly Disregard the Law and Confirms Arbitration Award
On September 27, 2018, in a widely followed arbitration case, a unanimous panel of the Appellate Division, First Department concluded that the New York County, Commercial Division (Ramos, J.) erred when it partially vacated an arbitration award on the ground that the arbitrators’ disregarded the law. As a result, the Appellate Division confirmed the arbitration award. 
In Royal Wine Corp. v. Cognac Ferrand SAS, Justice Andrea Masley of the Commercial Division denied Plaintiff Royal Wine Corporation’s (“Royal”) motion for a preliminary injunction to enjoin arbitration that defendant Cognac Ferrand SAS (“Cognac”) initiated against Royal’s alleged alter ego, Mystique Brands, LLC (“Mystique”).[i] The case raised the issue of whether a non-party to an arbitration agreement has standing to assert defenses on behalf of an alleged alter ego while nevertheless denying the alter ego relationship.
Unless the U.S. Supreme Court Rules Otherwise, Waivers of Collective Actions Are Not Enforceable in New York
On July 18, 2017, the First Department partially reversed the Commercial Division’s decision in Gold v. New York Life Insurance Company, No. 653923/12, 2017 BL 247192 (App. Div. 1st Dep’t July 18, 2017), a case that presented the issue of whether employees can be compelled to waive collective actions against their employers pursuant to an arbitration clause. In 2015, Justice O. Peter Sherwood of the New York Commercial Division had granted a motion to compel a former insurance agent to arbitrate his wage dispute with New York Life Insurance Co. (“N.Y. Life”). In a decision by Justice Karla Moskowitz (who was a member of the Commercial Division before being appointed to the Appellate Division), the First Department answered an open issue in New York, holding that employers cannot be required to arbitrate such disputes as it “would run afoul of the National Labor Relations Act.”
Justice Charles Ramos of the New York Commercial Division partially vacated an International Chamber of Commerce (“ICC”) arbitration award in a major legal battle between artificial sweetener giants NutraSweet and Daesang. Daesang Corp. v. The NutraSweet Co., et al., No. 655019/2016, 2017 BL 164971 (N.Y. Sup. Ct. May 15, 2017). The partial vacatur sends what was a $100,766,258 award in favor of Daesang back to the arbitral tribunal.
Commercial Division Compels Arbitration of a Contract Claim Based on an Arbitration Clause in a Related Agreement
In Fidilio v. Hoosick Falls Productions, Inc., No. 654066/2016, 2017 BL 107640 (Sup. Ct. Mar. 22, 2017), Justice Eileen Bransten of the New York County Commercial Division granted a motion to compel arbitration of a dispute relating to a short-lived reality TV show, Scrappers. Justice Bransten ruled that the arbitration clause in one agreement between Frank Fidilio, the show's creator, and Hoosick Falls Production, Inc. ("Hoosick"), the production company, required arbitration of Fidilio's claims against Hoosick brought under another agreement which was executed at the same time, by the same parties, governing the same subject matter. Fidilio's remaining claims for breach of contract as a third-party beneficiary, unjust enrichment, and an accounting against Viacom International Inc. and the show's distributor, New 38th Floor Productions, Inc. ("New 38th"), were dismissed for failure to state a claim. Fidilio provides important lessons for parties considering mandatory arbitration clauses in connection with transactions involving multiple agreements, as well as for litigants considering whether claims may be subject to mandatory arbitration under provisions of related agreements.
A recent decision from the New York Commercial Division decided whether arbitration could be avoided in an investment firm-employee dispute. In CF Notes, LLC v. Weinstein, No. 652206/2015, 2016 BL 352970 (N.Y. Sup. Ct. Oct. 13, 2016), Justice Saliann Scarpulla, of the Commercial Division, compelled a nonsignatory to arbitrate pursuant to a FINRA arbitration agreement. The decision relates to how financial securities firms structure bonuses to employees and to how nonsignatories may be compelled to arbitrate pursuant to arbitration agreements signed by their affiliates.
On September 23, 2016, in Pershing LLC v. Rochdale Securities, LLC, No. 651604, 2016 N.Y. Misc. LEXIS 3448 (Sup. Ct. N.Y. Cnty.), Justice Saliann Scarpulla of the Commercial Division issued a decision that reinforces the very significant burden a petitioner faces in order to successfully vacate an arbitration award under CPLR Article 75 and section 10 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.