While not a construction dispute, the United States
District Court for the Southern District of New York’s Opinion and Order in Landmark Ventures, Inc. v. Stephanie Cohen,
et al., No. 13-9044 (S.D.N.Y. 2014), reminds us that courts consistently uphold
the strong arbitral immunity defenses available to arbitrators and the
organizations that sponsor arbitrations. Moreover, the case serves as a warning
that, if a party to an arbitration intends to seek relief from an adverse
arbitration award, counsel for that party should think twice before asserting
claims against the arbitrator and/or sponsoring organization because doing so
might expose them to sanctions.
In Landmark, the plaintiff, Landmark
Ventures, Inc. (“Landmark”) was unsuccessful in an arbitration it filed against
InSightec, Ltd. Defendant and arbitrator, Stephanie Cohen, presided over the
arbitration pursuant to the rules of the International Chamber of Commerce
(“ICC”), also made a defendant to Landmark’s suit. Concurrent with its suit
against Ms. Cohen and the ICC, Landmark filed a petition to vacate the award,
which the Court denied.
In
support of its claims against Ms. Cohen and the ICC, Landmark urged that Ms.
Cohen made procedural decisions that were unfair to Landmark, including
limiting Landmark’s discovery requests and failing to grant Landmark a
continuance to locate an expert witness. Landmark also urged that the ICC is
liable for refusing to correct Ms. Cohen’s award and for assessing additional
legal fees and costs against Landmark.
The defendants
provided the court and Landmark notice of their intent to seek dismissal under
the long-standing principle of arbitral immunity and the parties’ agreement
through adoption of the ICC rules not to sue the ICC and its arbitrators for
any alleged claims arising from the arbitration. After a pre-motion conference, in which the
principle of arbitral immunity was discussed at length, Landmark and its
counsel still refused to dismiss Landmark’s claims against Ms. Cohen and the
ICC. After the conference, the defendants sent a letter to Landmark notifying
Landmark and its counsel of their intent to seek Rule 11 sanctions.
The
defendants filed their motion to dismiss and motion for sanctions. The court
granted both motions. The court found Landmark’s claims to be frivolous in
light of the well-established principles of arbitral immunity and because,
following multiple notices from the defendants regarding Landmark’s lack of a
cause of action, “[i]nstead of heeding these precedents and dismissing the case
without prejudice or responding to the cases in its reply, Landmark simply
ignored these precedents and proceeded with the case.” Moreover, Landmark’s counsel acknowledged at
the motion hearing that, under the clear law of the Second Circuit, Landmark
had no cause of action against Ms. Cohen and the ICC, yet did not provide any
non-frivolous arguments for reversing current law. The Court awarded the
defendants sanctions of $20,000 against Landmark’s counsel. The decision is currently being appealed.
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