{"id":147,"date":"2014-04-23T08:42:36","date_gmt":"2014-04-23T12:42:36","guid":{"rendered":"http:\/\/appropriatedisputesolutions.com\/site\/?p=147"},"modified":"2015-08-04T11:26:12","modified_gmt":"2015-08-04T15:26:12","slug":"go-bare-to-protect-your-confidences","status":"publish","type":"post","link":"https:\/\/appropriatedisputesolutions.com\/site\/go-bare-to-protect-your-confidences\/","title":{"rendered":"Go Bare to Protect Your Confidences"},"content":{"rendered":"
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Published in Law.com and here by permission<\/div>\n
By\u00a0\"Laura\u00a0<\/a>Laura A. Kaster<\/a>,\u00a0Law.com Contributor<\/em><\/small>Published:\u00a0<\/strong>Apr 22, 2014<\/small><\/div>\n
\"Go<\/a><\/div>\n<\/div>\n
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In choosing between a bare award and a reasoned award in arbitration, drafting or arbitrating counsel often focus on the salutary effect on logic and\u00a0reasoning<\/a>\u00a0that having to write an award may have on the panel. There is no doubt that is an important and legitimate purpose for requiring a reasoned award.\u00a0 As the renowned jurist\u00a0Frank M. Coffin<\/a>\u00a0wrote in\u00a0The Ways of a\u00a0Judge<\/a><\/i>\u00a057 (Houghton Mifflin<\/a>\u00a01980):<\/p>\n

[W]e may be in the very middle of an opinion, struggling to reflect the reasoning all judges have agreed on, only to realize that it simply \u201cwon\u2019t write.\u201d\u00a0 The act of writing tells us what was wrong with the act of thinking.<\/p><\/blockquote>\n

But other needs should also be weighed. \u00a0The desire to assure careful thought in this particular way may be subordinate if the client has an overriding desire to maintain confidentiality.\u00a0 Many clients elect arbitration because it is a private process; they and often their counselors believe that confidentiality follows.\u00a0 However, privacy and confidentiality are not synonyms in the arbitration world. \u00a0At least in the U.S., seeking judgment on a reasoned\u00a0arbitral award<\/a>\u00a0can expose not only the fact of the dispute and its outcome but underlyingconfidential information<\/a>.\u00a0 The reason for this exposure is that the needs of the open and publicly funded judicial system require that the judges\u2019 rulings be subject to scrutiny.\u00a0 As one of the few appellate decisions on this topic explains:<\/p>\n

the\u00a0dispositive\u00a0<\/i>documents in any litigation enter the public record notwithstanding any earlier agreement. How else are observers to know what the suit is about or assess the judges\u2019 disposition of it? Not only the legislature but also students of the judicial system are entitled to know what the heavy financial subsidy of litigation is producing. These are among the reasons why very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed. In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal. . . .\u00a0 [M]any\u00a0litigants<\/a>\u00a0would like to keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay under a contract, but when these things are vital to claims made in litigation they must be revealed.<\/p><\/blockquote>\n

Baxter Int\u2019l Inc. v.\u00a0Abbott Labs<\/a>.<\/i>\u00a0297 F.3d 544, 546-47 (7th\u00a0Cir. 2002) (Easterbrook, J).<\/p>\n

Therefore, if the rationale for the underlying arbitral decision is part of the judicial record, confidentiality is threatened.\u00a0 The\u00a0Seventh Circuit<\/a>\u00a0made that perfectly clear in\u00a0Gotham Holdings<\/i>:<\/p>\n

one can \u2018\u2018agree\u2019\u2019 with someone else that a stranger\u2019s resort to discovery under the\u00a0Federal Rules of Civil Procedure<\/a>\u00a0will be cut off.\u00a0 .\u00a0 .\u00a0 .. [The parties] were entitled to agree that they would not\u00a0voluntarily<\/i>disclose any information related to the arbitration. . . . \u00a0Disclosure would be authorized only when a third party had a legal right of access. \u00a0Gotham Holdings LP v. Health Grades, Inc<\/i>., 580 F.3d 664, 665-66 (7th\u00a0Cir. 2009) (citations omitted).<\/p><\/blockquote>\n

How can the drafter or advocate deal with this? There are multiple precautionary moves, but one of them is to include in the arbitration clause, the terms of reference, or the preliminary hearing order a specific statement that the parties seek a bare or simple award only.\u00a0 Some arbitrators may provide a separate statement of reasons if the parties so desire.\u00a0 But to maximize the potential for maintaining confidences \u2013 go bare!<\/p>\n

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<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Choosing a bare award can preserve confidential information in arbitration<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","footnotes":""},"categories":[3],"tags":[6,25,24,14],"class_list":["post-147","post","type-post","status-publish","format-standard","hentry","category-arbitration","tag-arbitration-2","tag-arbitration-clause","tag-award","tag-confidentiality"],"aioseo_notices":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6qGtQ-2n","jetpack-related-posts":[{"id":25,"url":"https:\/\/appropriatedisputesolutions.com\/site\/first-circuit-posits-that-ordering-a-violation-of-regs-may-be-grounds-for-vacatur\/","url_meta":{"origin":147,"position":0},"title":"First Circuit Posits that Ordering a Violation of Regs may be grounds for vacatur","author":"lakaster","date":"September 28, 2012","format":false,"excerpt":"In Bangor Gas Company, LLC v. H.Q. Energy Services (U.S.) Inc., __ F.3d __, 2012 WL 4373685 (1st Cir. Sept. 26, 2012), an owner of a pipeline argued that an arbitration award required the parties to violate FERC regulations. Without clarifying its position on manifest disregard, the First Circuit upheld\u2026","rel":"","context":"In "Arbitration"","block_context":{"text":"Arbitration","link":"https:\/\/appropriatedisputesolutions.com\/site\/category\/arbitration\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":36,"url":"https:\/\/appropriatedisputesolutions.com\/site\/dodd-frank-restoring-american-financial-stability-act-2010-impacts-arbitration\/","url_meta":{"origin":147,"position":1},"title":"Dodd-Frank \u2013 Restoring American Financial Stability Act 2010 Impacts Arbitration","author":"lakaster","date":"August 1, 2010","format":false,"excerpt":"The Restoring American Financial Stability Act of 2010 (the \u201cDodd-Frank Wall Street Reform and Consumer Protection Act\u201d) was recently signed into law. The Act has a number of provisions that can potentially impact consumer arbitration. The Supreme Court continues to deal with a number of critical arbitration issues but with\u2026","rel":"","context":"In \"consumer arbitration\"","block_context":{"text":"consumer arbitration","link":"https:\/\/appropriatedisputesolutions.com\/site\/tag\/consumer-arbitration\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":179,"url":"https:\/\/appropriatedisputesolutions.com\/site\/negotiating-the-walt-disney-way\/","url_meta":{"origin":147,"position":2},"title":"Negotiating with PL Travers \u2013 the Walt Disney Way","author":"lakaster","date":"July 5, 2015","format":false,"excerpt":"Am I talking to the wrong person? You do need to know your negotiating partner.","rel":"","context":"In "Arbitration"","block_context":{"text":"Arbitration","link":"https:\/\/appropriatedisputesolutions.com\/site\/category\/arbitration\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/appropriatedisputesolutions.com\/site\/wp-content\/uploads\/2015\/07\/Mary-Poppins-silhouette.jpg?resize=350%2C200","width":350,"height":200},"classes":[]}],"_links":{"self":[{"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/posts\/147"}],"collection":[{"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/comments?post=147"}],"version-history":[{"count":5,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/posts\/147\/revisions"}],"predecessor-version":[{"id":196,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/posts\/147\/revisions\/196"}],"wp:attachment":[{"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/media?parent=147"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/categories?post=147"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/appropriatedisputesolutions.com\/site\/wp-json\/wp\/v2\/tags?post=147"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}