OTLA Trial Lawyer Fall 2021

37 Trial Lawyer • Fall 2021 But the FAA does not permit parties to challenge an arbitration award on the ground that the arbitrator committed a legal or factual error, even a serious error, so long as the arbitrator arguably applied the law to the evidence. Oxford Health Plans LLC v. Sutter , 569 US 564 (2013) (the sole question on review is whether the arbitrator interpreted the parties’ contract, not whether the arbitrator did so correctly); In re Wal-Mart Wage & Hour Employment Practices Litig. , 737 F3d 1262 (9th Cir 2013) (Ninth Circuit permits challenges to arbitration awards exhibiting “manifest disregard for law,” but Supreme Court has expressed doubt if that judicial gloss on the FAA is valid); Nieto v. City of Talent , 295 Or App 625 (2019) (OAA does not permit challenge to award predicated on an error of law. Rather, the error must relate to the arbi- trator’s authority to decide the dispute). The Court has also held the FAA prohibits parties from modifying the grounds for judicial review specified in the FAA. Thus, parties may not agree to “legal error” review of arbitration awards. Hall St. Associates, LLC v. Mattel, Inc. , 552 US 576 (2008). See also Wal-Mart (FAA bars parties from eliminating all judicial review of arbitration awards). Freedom of contract has some limits, it turns out. Conclusion In sum, recent federal and state ap- pellate cases have made it very tough for plaintiffs seeking to challenge arbitration clauses. There are avenues to pursue, however, especially if you make the effort to create a detailed evidentiary record that supports your challenge. Cody Hoesly specializes in appeals, finan- cial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-222- 4424 or choesly@lvklaw.com.