Schmitz’s Empirical Analysis

Citation profile

4 district · 33 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 57 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “`evident partiality' is present when undisclosed facts show a `reasonable impression of partiality.'”

   5 later decisions quote this exact passage · from the concurrence
   e.g. Pharmaniaga Berhad v. EHealthline.com, Inc. · 337 F. Supp. 2d 862 - Positive Software Solutions, Inc. v. New Century Mortgage Corp.

2. ““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. In Commonwealth Coatings, one arbitrator on a panel of three failed to disclose that he had engaged in periodic and significant business relations with one of the parties to the arbitration over the previous five or six years. Id. at 146 , 89 S.Ct. at 338 .... The party that lost the arbitration then challenged the award, asserting that the failure of this arbitrator to disclose his significant business relationship resulted in ‘evident partiality’ under 9 U.S.C. § 10 [ (a)(2) ], warranting vaca-tur of the award. “The district court held that ‘the arbitrator ... was entirely fair and impartial,’ id. at 151 n. *, 89 S.Ct. at 340 n. *, and refused to vacate the award. Without disturbing the finding that the arbitrator was not biased, id. at 147-50 & 151 n. *, 89 S.Ct. at 338 -40 & 340 n. *, the Supreme Court reversed and vacated the award. The Court held that an arbitrator’s nondisclosure of facts showing a potential conflict of interest creates evident partiality warranting vaca-tur even when no actual bias is present. The Court tried to articulate a standard indicating what facts show evident partiality when not disclosed by an arbitrator. The Court described facts that must be disclosed as those that ‘might create an impression of possible bias,’ id. at 149 , 89 S.Ct. at 339 , those that show the ‘appearan”

   3 later decisions quote this exact passage · from the majority
   e.g. Noel Madamba Contracting, LLC v. Romero. · 101 So. 3d 1190 - Lexington Insurance Co. & Chartis v. Southern Energy Homes, Inc.

3. “[A] reasonable impression of partiality can form when an actual conflict of interest exists and the lawyer has constructive knowledge of it. That the lawyer forgot to run a conflict check or had forgotten that he had previously represented the party is not an excuse. Also, an arbitrator may not know facts of which he may have been suspicious or of which he was on notice which, if true, would create a reasonable impression of partiality if not investigated and disclosed. Requiring arbitrators to make investigations in certain circumstances gives arbitrators an incentive to be forthright with the parties, honestly disclosing what arbitrators might otherwise have an incentive to hide. Commonwealth Coatings establishes that the parties rather than the arbitrators or the courts should be the judges of the partiality of arbitrators. If the parties are to be judges of the arbitrators’ partiality, duties to investigate and disclose conflicts must be enforced, even if later a court finds that no actual bias was present. We therefore decline to adopt a per se rule that no reasonable impression of partiality can be found absent a showing that the arbitrator knew the facts on which it is based.”

   3 later decisions quote this exact passage · from the concurrence
   e.g. Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Co. · 337 F. Supp. 2d 862 - Positive Software Solutions, Inc. v. New Century Mortgage Corp.