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President Biden on February 23 nominated Ketanji Brown Jackson to replace the retiring Supreme Court Justice Breyer, a White House Press Release announced. Judge Brown Jackson was appointed by President Obama in 2013 to the U.S. District Court for the District of Columbia, and by President Biden last year to the Court of Appeals for the District of Columbia Circuit (to fill the seat vacated by Merrick B. Garland).

Few Arbitration-Related Decisions …

Thus far, we have not found many court decisions involving the Judge and arbitration. A comprehensive analysis published February 25 by the CPR Blog identified eight cases involving arbitration that: “mostly involved confirmation proceedings.” One that drew our attention is CEF Energia, B.V. v. Italian RepublicNo. 19-cv-3443 (KBJ), 2020 WL 421978 (D.D.C. 2020). The case involved a complex set of facts surrounding the attempted confirmation in the United States of two related multi-€ awards rendered against Italy by arbitration panels at the Stockholm Chamber of Commerce. Pending before the Court in Sweden were jurisdictional challenges over award enforcement; the Court had: “issued orders that prohibit the enforcement of the awards pending resolution of the challenge.” The prevailing parties then sought award confirmation in the U.S. under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and section 207 of the Federal Arbitration Act. In  a well-reasoned Opinion, Judge Brown Jackson declined to enforce the award and instead stayed the matter pending resolution of the Swedish proceedings: “Given the ongoing set-aside proceedings that are taking place in Sweden (the primary jurisdiction of the parties’ arbitrations) and the significant interests in judicial economy and international comity that weigh in favor of staying this case, Respondent’s motion to stay the instant case will be GRANTED, and the instant case will be STAYED until further order of the Court. As set forth in the Order that accompanies this Memorandum Opinion, throughout the pendency of the stay, the parties shall provide the Court with periodic updates regarding the status of the set-aside matter that is working its way through the Svea Court, and they shall notify the Court of the Svea Court’s ruling within three business days of its issuance.”

… But Lots of ADR Experience

A review of Judge Brown Jackson’s bio and Senate Judiciary Committee Questionnaire from April 2021 shows that she has significant experience in and familiarity with arbitration and mediation. We repeat below essentially verbatim these entries in her Questionnaire:

  • Hall Street Associates LLC v. Mattel Inc., 552 U.S. 576 (2008) (Souter, J., wrote the opinion for the Court): From 2007 to 2008, I was part of a litigation team that represented respondent Mattel in a Supreme Court case involving the section of the Federal Arbitration Act that grants expedited judicial review to confirm, vacate, or modify an arbitration award. I was responsible for reviewing the factual record related to the subject matter of the underlying arbitration, and I drafted parts of both the primary brief for respondent and two supplemental briefs on specified issues the Supreme Court ordered. I also assisted in the preparation of oral argument counsel. The Supreme Court ultimately agreed with Mattel’s argument that the Act’s grounds for vacatur and modification of arbitration awards are exclusive for parties seeking expedited review under the FAA, but remanded the case for a determination regarding whether the parties did, in fact, intend for the arbitration proceeding at issue to be governed by the FAA.
  • October 27, 2015: Judge, Mock Arbitration, ChIPs Network Global Summit, Washington, District of Columbia. I served as a judge for a mock intellectual property arbitration.
  • In 2002, I returned to the District of Columbia and joined The Feinberg Group, a small arbitration and mediation practice, as an associate. While at the Feinberg Group, I assisted in the negotiated (non-litigation) resolution of mass tort claims. I attended arbitration proceedings and advised client corporations regarding trust payment structures for resolving mass-tort liability, such as asbestos claims.
  • When I was at The Feinberg Group from 2002 to 2003, my typical clients were large corporations facing mass tort liability. I specialized in mediation and arbitration procedures and in the evaluation of trust structures for the settlement of current and potential (future) tort claims.

Conclusion

Based on the information available, it’s hard to say whether the nominee is pro- or anti- arbitration. We certainly don’t read anything into the CEF Energia Opinion. On the other hand, the Judge certainly is very familiar with arbitration. We don’t expect arbitration will be a major point of inquiry in her Senate Judiciary Committee confirmation hearings, but with the recent passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, you never know.

(ed: SCOTUSBlog on February 25 published a nice general profile on the nominee.)

This post first appeared on the Securities Arbitration Alert blog.  The blog’s editor-in-chief is George H. Friedman, Chairman of the Board of Directors for Arbitartion Resolution Services, Inc.

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