Over the past year, the circuit courts have differed over whether the “manifest disregard of the law” doctrine survives the U.S. Supreme Court’s holding in Hall Street. Hall Street Assoc. v. Mattel, Inc., 128 S. Ct. 1396 (2008). In a recent article, Philip J. Loree Jr. analyzes the Second Circuit’s interpretation of Hall Street in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2008). Interestingly, the Stolt-Nielsen court adopted Judge Posner’s reasoning in Wise v. Wachovia Sec., LLC, 450 F.3d 265 (7th Cir. 2006) and Judge Sonia Sotomayor’s analysis in Westerbeke v. Daihatsu Motor Co., 304 F.3d 200 (2d Cir. 2002). Read the full article here: Hall Street Meets Pearl Street: Stolt-Nielsen and the Federal Arbitration Act’s New Section 10(a)(4), Loreee Reinsurance and Arbitration Law Forum, May 29, 2009. Previous Coverage: Read Our Guest-Post: Hall Street Meets S. Maestri Place (May 5, 2009) Fifth Circuit Denies Motion to Vacate Arbitration Award (Apr. 7, 2009) Fifth Circuit: Life After Hall Street (Mar. 17, 2009) Dead? Alive? Matter of Opinion? (Dec. 4, 2008) Rau Responds (Jun. 9, 2008) Rau Gives Souter a C-minus (Jun. 5, 2008) Glen Wilkerson on Hall Street v. Mattel (Apr. 19, 2008) No Longer Can You Craft Your Own Arbitral Standard of Review (Mar. 26, 2008) Technorati Tags: arbitration, ADR, law, FAA,

In a one-paragraph opinion, the U.S. Court of Appeals for the Fifth Circuit held that arbitration cannot be used to circumvent procedural requirements of the Texas Structured Settlement Protection Act (“SSPA”) and affirmed the District Court’s refusal to confirm an arbitration award. In Symetra Life Ins. Co. v. Rapid Settlements Ltd., No. 08-20248, Symetra National Life Insurance Company, (“Symetra”) payor of structured settlement payments, sued Rapid Settlements, Ltd., (“Rapid”) a “factoring company.” Symetra sought to enjoin Rapid from continuing its practice of using arbitration to circumvent SSPA requirements. This dispute deals with the secondary market in structured settlement rights. Settling defendants purchase annuities from Symetra to fund structured settlements to pay tort claimants. The beneficiaries (Symetra annuitants) then contract with Rapid to exchange their rights to the future periodic payments in exchange for a discounted lump sum paid in the present. Symetra annuitants’ agreements with Rapid contain an arbitration clause whereby the parties agree to arbitrate any disputes arising under the contract. Symetra challenged Rapid’s practice of executing a contract of sale with the annuitant, then alleging that the annuitant had breached a provision of that agreement, and thereafter invoking the arbitration clause to submit the matter to arbitration. At these “arbitration” proceedings, the annuitant usually appeared by phone without a lawyer. As a result, Rapid would obtain an arbitration award in its favor and seek its confirmation without notice to Symetra. The award would require the annuitant to transfer some of the future income-stream to Rapid, without complying with the SSPA. The United States District Court for the Southern District of Texas denied Rapid’s motion to confirm the arbitration award. According to the District Court, the transfers violated the SSPA because they failed to comply with the Act’s requirement that a state court approve the transfer based on specific findings that the transfer is in annuitant’s “best interest.” The court further stated that “[o]btaining state-court confirmation of an arbitration award that effects a transfer of future-payment rights does not equate to obtaining state-court approval of the proposed transfers under the state structured settlement protection acts.” See Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 599 F.Supp.2d 809 (S.D. Tex. 2008). Rapid appealed. Rapid had argued that the Federal Arbitration Act preempts state structured settlement protections acts to the extent that they conflict with the arbitration right set out in the arbitration agreement. But neither the trial court nor the Fifth Circuit were persuaded by Rapid’s argument. The Fifth Circuit adopted Symetra’s position and stated that: And on matters of insurance regulation, the congressional message of the Federal Arbitration Act comes with the congressional message of the McCarran-Ferguson Act. On that score, no fewer than forty-six states have seen fit to enact statutes exercising that power, to which Congress has consented, to guard recipients of structured settlements against abusive transfers. We are loathe to read the Federal Arbitration Act to provide an end run around this dually secured line of protection. The Fifth Circuit referred to the reasons stated by the District Court to affirm the judgment and concluded that “[a]rbitral powers do not extend beyond the substantive capacity of the party agreeing to arbitration, and neither Prima Paint nor any other Supreme Court case teaches the contrary.” Technorati Tags: arbitration, ADR, law, Fifth Circuit

As a future computer scientist, it is hard not to write about the most recent issue of Landslide, published by the ABA Section of Intellectual Property Law. The magazine contains an excellent article by Mark V. B. Partridge and Scott T. Lonardo. The authors discuss ICANN‘s recent developments in the Internet domain name system: Domain Name Tasting. In order to decrease the practice of domain name tasting, ICANN has adopted a new policy to limit refunds during the add grace period. WHOIS Protocol. ICANN is following up on breach notices for registrars to cure data inaccuracy. New gTLDs. About 5,000 new addresses will be available as early as 2009. Follow this link to view the article (log in required): ICANN Can or Can It?, Landslide, May/June 2009. Technorati Tags: law, domain names, ICANN, gTLD, Whois, Domain Name Tasting