Schmitz v. Zilveti

124 Citing cases

  1. Positive Software v. Mortg

    476 F.3d 278 (5th Cir. 2007)   Cited 89 times   3 Legal Analyses
    Finding Schmitz constitutes an unwarranted extension of the language of Commonwealth Coatings and noting that, “[i]ronically, Schmitz's ‘mere appearance’ standard would make it easier for a losing party to challenge an arbitration award for nondisclosure than for actual bias”

    to de-emphasize Justice White's narrowing language. See Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir.1994). In Schmitz, the court criticized case law suggesting "that an impression of bias is sufficient while an appearance [of bias] is not."

  2. Mun. Workers Comp. Fund, Inc. v. Morgan Keegan & Co.

    190 So. 3d 895 (Ala. 2015)   Cited 17 times   2 Legal Analyses
    Holding that materials printed from various Web sites were properly authenticated under Rule 901(b) when the content of the materials was distinctive and their accuracy was not challenged or disputed

    In most, if not all, of these federal cases, the issue was whether the arbitrator had failed to make a pre-selection disclosure of facts that might have demonstrated bias or a conflict of interest on his part and whether this nondisclosure itself demonstrated an ‘evident partiality’ on the part of the arbitrator under 9 U.S.C. § 10(a)(2) so as to justify the vacatur of the resulting arbitration award. The opinion in one of these cases, Schmitz v. Zilveti, [20 F.3d 1043 (9th Cir.1994) ], provides a helpful explanation of the distinction between what have become known as ‘nondisclosure’ cases and ‘actual bias' cases:“ ‘Appellants argue that Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), requires us to reverse the district court.

  3. Daiichi Hawaii Real Estate v. Lichter

    103 Haw. 325 (Haw. 2004)   Cited 47 times
    In Daiichi, we considered the circuit court's granting of a motion to vacate an arbitration award pursuant to HRS § 658–9(2), which has since been repealed.

    The lessor-appellants Rowlin L. Lichter, M.D., Linda Maile Harris, and Marcy Friedman, as trustees of and for the Martin H. Lichter Education Trust [collectively, "the trustees"], appeal from the findings of fact, conclusions of law, and order of the circuit court of the first circuit, the Honorable Gail C. Nakatani presiding, filed on February 18, 2000, vacating an arbitration decision dated September 12, 1999. On appeal, the trustees contend that the circuit court: (1) clearly erred in its findings of fact (FOFs) Nos. 8, 12, 13, 17, 18, 22, and 25 through 30; (2) erred in applying the standard of "evident partiality," as set forth in Schmitz v. Zilveti, III, 20 F.3d 1043 (9th Cir. 1994), to its conclusions of law (COLs) Nos. 4 through 6 and 11 through 19; (3) erred in applying the code of ethics established by the International Center for Dispute Resolution for Arbitrators in Commercial Disputes to its COLs Nos. 10, 13, 20, and 21; (4) erred, as set forth in its COL No. 8, in concluding (a) that the disclosure by William M. Swope, Esq., the arbitrator appointed by the trustees to the three-member arbitration panel, was insufficient to shift the burden to the plaintiff-appellee Daiichi Hawaii Real Estate Corporation (Daiichi) to investigate any conflicts of interest between the parties and Swope and (b) that Daiichi's failure to challenge Swope's appointment as an arbitrator did not constitute a waiver for purposes of a motion to vacate the arbitration decision based on "evident partiality," pursuant to Hawai`i Revised Statutes (HRS) § 658-9(2) (1993); (5) erred, as set forth in its COL Nos. 25-26, in concluding that Swope had engaged in gross negligence and could no

  4. New Regency v. Nippon Herald

    501 F.3d 1101 (9th Cir. 2007)   Cited 53 times   1 Legal Analyses
    Holding that the arbitrator’s new employment triggered duty to investigate possible conflicts

    " Id. at" 148-49, 89 S.Ct. 337. In Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994), we vacated an arbitration award for evident partiality where the arbitrator's law firm had represented the parent company of a party "in at least nineteen cases during a period of 35 years[,] the most recent representation end[ing] approximately 21 months before [the] arbitration was submitted." Id. at 1044.

  5. HSMV Corp. v. ADI Ltd.

    72 F. Supp. 2d 1122 (C.D. Cal. 1999)   Cited 11 times
    Finding "that [the arbitrator], as a lawyer, had a duty to investigate whether a conflict may exist prior to his engagement as the sole `neutral' arbitrator in this dispute"

    Id. at 339. More recently, in Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994), a nondisclosure case involving an arbitrator who had no actual knowledge of a conflict, the Ninth Circuit held that a party's failure to investigate potential conflicts of interest may result in a "reasonable impression of partiality under Commonwealth Coatings." Id. at 1049.

  6. In re Narayan

    398 P.3d 664 (Haw. 2017)   Cited 13 times

    Evident partiality may be found in two situations: when an arbitrator fails to make necessary disclosures to the parties, or when additional facts show actual bias or improper motive, even if the arbitrator makes the necessary disclosures. See Valrose Maui, Inc. v. Maclyn Morris, Inc. , 105 F.Supp.2d 1118, 1124 (D. Haw. 2000) ; see also Schmitz v. Zilveti , 20 F.3d 1043, 1045-47 (9th Cir. 1994) (distinguishing the evident partiality standards applied in "nondisclosure" cases and "actual bias" cases). This court's recent decisions in Nordic and Madamba have addressed the evident partiality standard in nondisclosure cases.

  7. Noel Madamba Contracting LLC v. Romero

    137 Hawaii 1 (Haw. 2015)   Cited 12 times   1 Legal Analyses
    Noting that the party's law firm had received the arbitrator's files during the course of the arbitration

    " We held that evident partiality is "present when undisclosed facts show ‘a reasonable impression of partiality.’ " Daiichi, 103 Hawai‘i at 339, 82 P.3d at 425 (emphasis added) (quoting Schmitz v. Zilveti, 20 F.3d 1043, 1046 (9th Cir.1994) ). Under this analysis, a finding of evident partiality related to a failure to disclose is not dependent on a showing that the arbitrator was actually biased, but instead stems from the nondisclosure itself. Id. at 352, 82 P.3d at 438 (citing Schmitz, 20 F.3d at 1045 ).

  8. Sussex v. U.S. Dist. Court for the Dist. of Nev. (In re Sussex)

    No. 14-70158 (9th Cir. Mar. 27, 2015)

    Holding that Commonwealth Coatings created a "reasonable impression of partiality" standard, we clarified that its standard differed from the strict standards applicable to judges, because "arbitrators will nearly always, of necessity, have numerous contacts within their field of expertise . . . [and] have many more potential conflicts of interest than judges." Schmitz v. Zilveti, 20 F.3d 1043, 1046 (9th Cir. 1994); see also Commonwealth Coatings, 393 U.S. at 148 (observing that "arbitrators cannot sever all their ties with the business world"). As Justice White recognized, "an arbitrator's business relationships may be diverse indeed, involving more or less remote commercial connections with great numbers of people.

  9. Sussex v. U.S. Dist. Court for the Dist. of Nev. (In re Sussex)

    781 F.3d 1065 (9th Cir. 2015)   Cited 46 times   2 Legal Analyses
    Issuing the writ based on a strong showing of Bauman factors three and five

    Coatings created a “reasonable impression of partiality” standard, we clarified that its standard differed from the strict standards applicable to judges, because “arbitrators will nearly always, of necessity, have numerous contacts within their field of expertise ... [and] have many more potential conflicts of interest than judges.” Schmitz v. Zilveti, 20 F.3d 1043, 1046 (9th Cir.1994) ; see also Commonwealth Coatings, 393 U.S. at 148, 89 S.Ct. 337 (observing that “arbitrators cannot sever all their ties with the business world”). As Justice White recognized, “an arbitrator's business relationships may be diverse indeed, involving more or less remote commercial connections with great numbers of people.

  10. Positive Software Solutions, Inc. v. New Century Mortgage Corp.

    436 F.3d 495 (5th Cir. 2006)   Cited 9 times   1 Legal Analyses
    Holding that "an arbitrator selected by the parties displays evident partiality by the very failure to disclose facts that might create a reasonable impression of the arbitrator's partiality"

    In addition, other circuits that have considered nondisclosure in arbitration cases have applied de novo review when applying law to facts. See, e.g., Olson v. Merrill Lynch, Pierce, Fenner Smith, Inc., 51 F.3d 157, 160 (8th Cir. 1995); Schmitz v. Zilveti, 20 F.3d 1043, 1045 (9th Cir. 1994). III. A.