Be pessimistic, or there will be much wailing and gnashing of teeth.
Again, I'm not saying Munsen is right, I'm saying he is making an argument that a reasonable person can make, and that we should not be overly optimistic based just on how the judge asked questions this week. When will you people learn? It's like the black knight sketch here sometimes....
Again, I'm not saying this line of thought is correct, but it is obviously something that should be on our radar, it is not stupid, and we shouldn't be too optimistic, given the history of what has transpired so far.
Your positional evolution notwithstanding, Garvey controls issues of facts, not process, and subsequent rulings have shown avenues to attack arbitrations. I laid out the applicable section of Title IX upon which such attacks are based in another thread, but I'll re-post it here:
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1)
where the award was procured by corruption, fraud, or undue means;
(2)
where there was evident partiality or corruption in the arbitrators, or either of them;
(3)
where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4)
where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(b)
If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
(c)
The United States district court for the district wherein an award was made that was issued pursuant to
section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in
section 572 of title 5.
(July 30, 1947, ch. 392,
61 Stat. 672;
Pub. L. 101–552, § 5, Nov. 15, 1990,
104 Stat. 2745;
Pub. L. 102–354, § 5(b)(4), Aug. 26, 1992,
106 Stat. 946;
Pub. L. 107–169, § 1, May 7, 2002,
116 Stat. 132.)
#2, #3, and #4 are all clearly in play.
