Reference Materials

Arbitrator Immunity From Suit and Testimony Annotated Research Guide and Bibliographies

 

The vast bulk of parties to arbitration proceedings recognize that arbitrators have a limited role in their dispute which ends with the issuance of the Decision and Award. However, some parties have filed suits against arbitrators or attempted to compel arbitrators to provide evidence in post-decision actions. The experience of the National Academy of Arbitrators has been that many of these actions come from individual grievants, with or without counsel, after losing in arbitration. Most involve subpoenas and/or requests to appear for depositions.

 

Courts in most jurisdictions have held that arbitrators are immune from suit regarding their actions while in the capacity of an arbitrator. Sponsoring organizations (e.g., AAA and NASD) share this immunity. A few states have enacted statutes specifically providing immunity; absent statute, courts have found common law immunity. Courts have also held that arbitrators cannot be compelled to provide evidence related to an arbitration proceeding after rendering an arbitration award, either directly through testimony or affidavit, or indirectly by a subpoena of their notes.

 

Arbitrators from all geographic areas, with all degrees of fame and years in practice, have been the subject of requests for their testimony and notes, as well as lawsuits naming them as defendants. Most such cases are resolved without protracted litigation or great cost. Often, they are withdrawn once the relevant case law has been cited. The law of arbitrator immunity is well settled, fake watches but not necessarily well known. Arbitrators who have been served with a subpoena, deposition request, or lawsuit may want to read the following materials and cases and provide them to their attorneys. Most of them come from a compilation of authority prepared by Barry Winograd, who was the 1997-98 Chair of the National Academy of Arbitrators Committee on Legal Representation.

Please note that these materials are not a substitute for competent legal counsel.

Arbitral Immunity Materials and Cases

Articles and Treatises

 

Elkouri and Elkouri, How Arbitration Works (5th ed.), pp. 201-203

 

Fairweather, Practice and Procedure in Labor Arbitration (2nd ed.), p. 96

 

Domke, Commercial Arbitration, Sec. 23.01 (immunity), and Sec. 23.02 (testimony)

 

Nolan and Abrams, “Arbitral Immunity,” 11 Indus.Rel.L.J. 228 (1989).

 

Nolan and Abrams, “The Arbitrator’s Immunity from Suit and Subpoena,”in Arbitration 1987: Proceedings of the 40th Annual Meeting, National Academy of Arbitrators

 

Rubin, “Arbitrator’s Immunity from Damage Claims,” in Arbitration 1986: Proceedings of the 39th Annual Meeting, National Academy of Arbitrators

 

Annot., Admissibility of Affidavit or Testimony of Arbitrator to Impeach or Explain Award, 80 ALR3d 155 (1977)

 

Arbitral Immunity Update (Office of General Counsel, Amer. Arb. Assn., October 1996)

 

Arbitral Immunity, Lawyers’ Arbitration Letter (Amer. Arb. Assn., Dec. 1990)

 

Immunity and the Arbitration Process, Lawyers’ Arbitration Letter (Amer. Arb. Assn., March 1983)

 

Domke, “The Arbitrator’s Immunity From Liability: A Comparative Survey,” 1971 U. Tol. L. Rev. 99 (1971)

 

Code of Professional Responsibility for Arbitrators, Sec. 6.E.2

Selected Cases

Arbitrator Immunity From Suit

 

Nat. Football League v. Office & Prof. Emp. Int. Un., 947 FSupp 540 (DDC 1996) (immunity from claim of tortious interference with alleged contract to remove arbitrator from case)

John Street Leasehold, LLC v. Brunjes, 650 NYS2d 649 (1996) (immunity shields arbitrator’s official acts, including non-disclosure)

 

Wally v. Gen. Arb. Cncl. Of Text. Indus., 630 NYS2d 627 (1995) (arbitrator immunity applied in dismissing employee fraud and contract claims for vacation pay)

 

Feichtinger v. Conant, 893 P.2d 1266 (Alaska 1995) (arbitor has absolute immunity from liability for damages arising out of quasi-judicial actions; partial attorneys’ fees awarded to arbitrator because case was of first impression in Alaska, and therefore not frivolous. Court rejected proposed limitations on arbitral immunity (1) where the arbitrator did not act in good faith; (2) where a labor-management arbitrator commits gross negligence, fraud, corruption, gross error, or misbehavior; (3) where an arbitrator commits egregious misconduct; and/or (4) where the arbitrator’s behavior is extreme and outrageous)

 

Austern v. Chicago Bd. Options Exch., Inc., 898 F2d 882 (2d Cir 1990) (immunity for arbitrator and sponsoring agency in contract arbitration proceedings)

 

Wasyl, Inc. v. First Boston Corp., 813 F2d 1579 (9th Cir 1987) (arbitrator immunity applied to appraiser used by parties to resolve valuation dispute)

 

Intern. U. United Auto Wkrs. v. Greyhound Lines, 701 F2d 1181 (6th Cir 1983) (arbitrator immunity in pension deadlock dispute, even if fiduciary duty assumed under ERISA)

 

Baar v. Tigerman, 140 CalApp3d 979, 189 CalRptr 834 (1983) (arbitrator immunity does not bar breach of contract action based on failure to render timely award)

 

Calzarano v. Liebowitz, 550 FSupp 1389 (SDNY 1982) (Dismissed suit against arbitrator; principle underlying arbitral immunity same as that for judicial immunity: protection of decision-making process from reprisals by dissatisfied litigants)

 

Corey v. New York Stock Exch., 691 F2d 1205 (6th Cir 1982) (immunity precludes civil liability for arbitrator and sponsoring agency)

 

Yates v. Yellow Freight System, 501 FSupp 101 (SD Ohio 1980) (dismissing action against labor arbitration board)

 

I. & F. Corp. v. Intern. Ass’n of Heat and Frost, 493 FSupp 147 (SD Ohio 1980) (pleading of partiality sufficient to deny motion to dismiss joint arbitration board)

 

Tamari v. Conrad, 552 F2d 778 (7th Cir 1977) (immunity doctrine applied in challenge to arbitrator’s authority to hear case)

 

E.C. Ernst, Inc. v. Manhattan Construction Co. of Texas, 551 F2d 1026 (5th Cir 1977), reh. granted in part, 559 F2d 268 (1977), cert. den., 434 U.S. 1067 (1978) (no immunity for owner’s architect acting as arbitrator, where inaction was delay or failure to decide rather than timely decision-making; immunity extends only to extent action is functionally judge-like)

 

Fong v. American Airlines, Inc., 431 FSupp1340 (ND CA 1977) (immunity doctrine bars discharged employee’s civil action against airline adjustment board)

 

Rubenstein v. Otterbourg, 357 NYS2d 62 (1973) (dismissing tort action against arbitrator for failure to disqualify himself and against sponsoring association for not disqualifying him)

 

Hill v. Aro Corp., 263 FSupp 324 (ND Ohio 1967) (relying on immunity doctrine to dismiss civil action by discharged employee against parties and arbitrator)

 

Cahn v. International Ladies’ Garment Union, 311 F2d 113 (3d Cir 1965) (labor arbitrator immunity from anti-trust lawsuit)

 

Lundgren v. Freeman, 307 F2d 104 (9th Cir 1962) (architect immune as quasi-arbitrator to resolve dispute between owner and contractor)

 

Babylon Milk and Cream Co. v. Horvitz, 151 NYS2d 221 (1956), aff. 165 NYS2d 717 (1957)(immunity doctrine applies to labor arbitration)

Wilder v. Crook, 250 Ala. 424, 34 So. 2d 832 (1948) (architect named as arbiter of contractual disputes is analogous to umpire or arbitrator; decisions judicial in nature; cannot be held liable for failure to exercise care of skill in performance of functions, even where decision was product of fraud or corruption)

Hoosack Tunnel, Dock Elevator Co. v. O’Brien, 137 Mass. 424 (1884) (arbitrator appointed under rule of court is not civilly liable for actions while exercising duties)

 

Immunity for Quasi-Judicial Officers

 

Taylor v. Brentwood Union Free School Dist, 908 FSupp 1165 (EDNY 1995) (immunity doctrine applied to public sector hearing officer)

Saavedra v. City of Albuquerque, 859 FSupp 526 (D NM 1994) (immunity for city’s personnel hearing officer)

Wagshal v. Foster, 28 F3d 1249 (DC Cir 1994) (quasi-judicial immunity doctrine extended to mediation process)

Mylett v. Mullican, 992 F2d 1347 (5th Cir 1993) (immunity applied for civil service commissioners)

Atiya v. Salt Lake County, 988 F2d 1013 (10th Cir 1993) (immunity for civil service council in public employee grievance hearings)

Ambus v. Utah State Bd. Of Educ., 858 P2d 1372 (Utah 1993) (immunity for teacher reinstatement hearing board)

Watts v. Burkhart, 978 F2d 269 (6th Cir 1992) (immunity for state licensing board handling physician discipline appeals)

Butz v. Economou, 438 US 478 (1978) (seminal decision establishing absolute immunity of quasi-judicial administrative hearing officers)

 

Immunity Doctrine for Sponsoring Organization

 

Barbara v. New York Stock Exchange, Inc., 99 F3d 49 (2d Cir 1996) (sponsoring agency has absolute quasi-judicial imunity for arbitration of member discipline)

Olson v. National Ass’n Securities Dealers, 85 F3d 381 (8th Cir 1996) (appointing agency immunity as extension of arbitrator immunity)

Richardson v. American Arbitration Assn., 888 FSupp 604 (SDNY 1995) (summary judgment upholding immunity of sponsoring agency in action based on alleged improper conduct by labor arbitrator)

U.S. v. City of Hayward, 36 F3d 832 (9th Cir 1994) (immunity doctrine for neutral processing agency inapplicable to municipality due to involuntary mandatory arbitration pursuant to local ordinance)

Thiele v. RML Realty Partners, 14 CalApp4th 1526, 18 CalRptr 2d 416 (1993) (immunity for sponsoring organization)

Cort v. American Arbitration Assn., 795 FSupp 970 (ND CA 1992) (immunity doctrine extends to sponsoring organization in claim of evidence and case-handling errors)

American Arbitration Assn. v. Superior Court, 8 CalApp 4th 1131, 10 CalRptr 2d 899 (1992) (statutory-based immunity for alleged procedural error by sponsoring organization)

Candor Central Sch. v. American Arbitration Assn., 411 NYS2d 162 (1978) (sponsoring organization not liable for refusing to stay arbitral proceedings)

 

Arbitrator Testimony Privilege and Immunity

 

Woods v. Saturn Distribution Corp., 78 F3d 424 (9th Cir 1996) (arbitrator deposition denied as clear evidence of bias not presented)

Lyeth v. Chrysler Corp., 929 F2d 891 (2d Cir 1991) (arbitrator deposition denied absent clear evidence of bias or impropriety)

Kientzy v. McDonnell Douglas Corp., 133 FRD 570 (ED Mo 1991) (non-disclosure of confidential communications to company ombudsman in discrimination suit by former employees, applying Rule 501)

Maine Cent. R. v. Broth. of Maintenance of Way Emp., 117 FRD 485 (D Maine 1987) (protective order granted for arbitrator deposition and production of notes)

Cobler v. Stanley, Barber, Southard, Brown & Associates, 217 CalApp3d 518, 265 CalRptr 868 (1990) (arbitrator declaration admissible on issue of bias, but not as to decision making or merits of the case)

Container Technology v. J. Gadsden Pty., 781 P2d 119 (Colo App 1989) (testimony barred to determine arbitrator thoughts, even if permissible to reconstruct steps of procedure)

O.R. Securities v. Professional Planning Assoc., 857 F2d 742 (11th Cir 1988) (arbitrator discovery improper to show disregard of law)

Legion Insurance Co. v. Insurance General Agency, 822 F2d 541 (5th Cir 1987) (arbitrator privilege against giving testimony or otherwise supplying evidence to impeach or clarify award)

Arco Alaska, Inc. v. Superior Court, 168 CalApp3d 139, 214 CalRptr 51 (1985) (improper to compel deposition or document production dealing with arbitrator deliberations or decision)

Wood v. General Teamsters Union, Local 406, 583 FSupp 1471 (WD Mich 1984) (arbitrator testimony rejected in fair representation litigation)

Contractors v. Form-Eze Systems, 68 OrApp 124, 681 P2d 148 (1984), rev. denied 297 Or 824 (1984) (arbitrator’s testimony inadmissible to impeach award; party not allowed to engage in “fishing expedition” by deposing arbitrators; alleged factual errors are not evidence of bias)

Temporary Commission of Invest. v. French, 418 NYS2d 774 (1979) (interest arbitrator protected from post-award subpoena without minimum showing of fraud or other serious misconduct)

Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F2d 691 (2d Cir 1978) (discovery denied on whether arbitrator failed to disclose a prejudicial relationship; any post hoc questioning of arbitrators should be handled pursuant to judicial supervision and limited to situations where clear evidence of impropriety has been presented)

DeFrayne v. Miller Brewing Co., 444 FSupp 130 (ED Mich 1978) (subpoena to compel post-award arbitrator testimony quashed given insufficient objective showing of misconduct)

Korshalla v. Liberty Mutual Insurance, 154 NJ Super. 235, 381 A2d 88 (NJ Law Div 1977) (party may not depose arbitrator on merits of decision)

Carolina-Virginia Fashion Exhibitors v. Gunter, 291 N.C. 208, 230 SE2d 380 (1976) (arbitrators may be deposed regarding alleged misconduct [ex parte inspection of premises] where objective basis exists for a reasonable belief that misconduct has occurred, but no inquiry may be made into mental process of arbitrators)

Grudem Brothers Co. v. Great Western Piping Corp., 213 NW2d 920 (Minn 1974) (testimony barred to show arbitrator mistake in action to vacate award)

Fukaya Trading Co., S.A. v. Eastern Marine Corp., 322 FSupp 278 (ED La 1971)(no deposition of arbitrators to inquire into their motives in making award

Gramling v. Food Machinery and Chemical Corp., 151 FSupp 853 (WD SoCar 1957) (refusing to compel arbitrator testimony in action to set aside commercial award)

 

Statutes

 

California Evidence Code, Section 703.5 (testimonial immunity)
 

 

Administrative Agencies’ Rulings

 

Gibson-Boles v. AFSCME Council 75 and Oregon Public Safety Standards and Training Department, UP-46-01, 20 PECBR 482 (2003) AWOP 195 Or App 185 (2004) rev den 338 Or 16 (2005.) (arbitrator cannot be compelled to testify or to provide notes and audio recordings from the arbitration hearing in duty of fair representation case arising out of the arbitration)

 

Note

 

The author is attempting to update and possibly expand this list. If you are aware of cases, statutes, or administrative rules from your state (whether granting or denying immunity), please advise so they can be included in future editions of this Annotation. Please forward your comments to:

 

Luella E. Nelson
4824 NE 42nd Avenue, #159
Portland, OR 97218-1661
(503)281-8343; (503) 281-8493 FAX
Email: Luella.Nelson@SBCGlobal.net