Appeals Court Swats Party Who Cheated in Arbitration
A CCA Blog: The Aardvark*
By Mark Shank, CCA Fellow
It has been a while since you heard from me, but a recent case caught my attention. In Nuvasive, Inc. v. Absolute Medical, LLC, No.22-10214, the 11th Circuit affirmed a district court’s decision to overturn an arbitration award more than three months after the statutory deadline to challenge the award. It turned out that one of the respondents was coaching the witness who was testifying by video conference, by texting him answers to questions as they were being asked. The texts were produced in discovery in different litigation more than three months after the award was entered. The court equitably tolled the three-month deadline based upon “extraordinary circumstances.” It then vacated the award because of fraud.
These facts present a lesson to arbitrators and counsel alike. After discussing with several experienced litigators, I recommend that arbitrators require a remote witness to state who is in the room with them and agree not to accept any outside communication of any kind at the time the oath is administered. And counsel should ask the witness to confirm that no communication has occurred during the testimony. I also suggest that that participants to be able to see the witness at all times and have a camera set up to see the entire room.
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