this is new one of the mill arbitration appeal this case raises at least three novel legal questions about the review of arbitration decisions st the meaning of the evident partiality standard under the a specifically in finra arbitrations before neutrals where the issue is the non disclosure of a connection to a party second the important role of the finra was strict disclosure rules in that eviden partiality analysis and rd the standard for waiver of evidence or partiality evident personality challenge based on non disclosure none of those questions have been definitively resolved by this court and this court should finally resolve those questions and in doing so make clear how it reads the supreme court's critical decision in commonwealth coatings which has been the subject of a circuit split for decades and which this court has never directly addressed to be clear l is not arguing for some kind of expansive review of arbitration awards ala isn't asking this court to review any legal or factual decisions made by the panel only to make sure that the district court fulfills its important role in post to award review under section ten of the f a a now i'd like to start with the case that u relies on most heavily for its claim that these issues are already well settled in this circuit and that's the no almost twenty year old decision in j c i communications now that please clearly was not a finra arbitration case it was not an arbitration that was supposed to proceed in front neutrals as this one was and more importantly the alleged basis for the partiality in that case had nothing to do with non disclosure in fact this court distinguished commonwealth never really been squarely resolved in this circuit in other words a standard for a non disclosure case g c i communications was no such case now let's jump ahead to ortiz a more recent case and u b s he points to one it's primarily a case with a very detailed and rigorous discussion of whether look through jurisdiction applies federal look through jurisdiction applies to post award remedies in the same way it does to motions to compel arbitration in the st place and of course this court concluded that it does come ortiz's not ortiz is not a non disclosure case the partiality in or t s is based on hearing conduct and this happens all the time parties complain that while at the hearing an arbitrator was mean to my side or interrupted my counsel or make comments on the record that i think should bias against our arguments or our side those are issues that there is no dispute both parties are aware of and can bring to the panel's attention at that time it's not an issue of any undisclosed connection that an arbitrator has to a party that someone only finds out about later so if arbitrat help this connection how how how did he have the capacity to be back so it's a great question your honor and i think a couple things st of all i think you could reasonably infer from the facts of this case the multiple overlapping constellation of connections between mr rossi methods employers and u b s that he was aware at least at a high level of those connections in the financial service industry nd and more importantly he should have known and he should have known because the f a a and commonwealth codings and the federal rules all squarely place the obligation of investigating those kinds of potential issues and then disclosing them to the parties on the arbitrator the idea is not to send parties scrambling in advance of an arbitration to find out what they can about the decision makers it's for the arbitrator's themselves to take on that duty just as a lawyer would want a conflict check in a case an arbitrator should take on the responsibility and f rules clearly require that they investigate their own potential connections to parties and disclose them i'd also add your honor and it doesn't directly answer your question but i think it's a factor to put in the balances ala definitely didn't know about these connections in advance it was able to find out about them later but i think it would be unfair as u b s proposes to sort of judged arbitrators under a kind of actual knowledge standard didn't really know at the time they didn't make the disclosure but impose on parties a constructive knowledge standard in other words if you could have known this before the arbitration hearing then you're not entitled to raise after the fact so that we say another word just about the nature of the connections here  because of course u b s wants to dismiss them as trivial and i think they're not i think they're not for a couple of reasons number one we have multiple wheel and current connections between arbitrator through his employers to a party in the case these aren't speculative it's not a one off matter these are things that happened many years ago so those are the types of things you see in the case law they're also not trivial in the sense that this court and other courts often use that word so for example  general there was a general allegation about the arbitrator's expertise or practice area nothing about a connection to a party keystone which they cite is another case where the court refers to a single brief and repeated connection in the past through an arbitrator spouse to the lawyers of a party that's not what we're dealing with here and there's really no question and i think that just report was was clear about the fact that had ala known about the nature of these multiple connections to mr awesome ethen u b s it never would have agreed to have him decide a seventy million dollars investment dispute and in that sense like beauty is in the eye of the beholder partiality in some sense is in the eye of of these relationships that would it would really be a stretch not reasonable to argue these relationships could be a source of partiality how do you respond to that so look there's always going to be a arbitrary rules and here there's no question that finra has amongst the arbitration body some of the most strict rules around disclosure i think it really can't be argued that these kinds of connections aren't so attenuated that they do wouldn't require federal rules generous instructions it's guide to arbiter says if you have any doubt if there's any question disclose the information to the parties and the reason why and again in some sense you have to kind of pull back and refers to a connection between an arbitrator in a party that so insubstantial these are his words that the archer is worry if i even reveal this it will make it look like i'm biased because i'm conscious of it why should the parties like if i'm mentioning there's disconnection they're going to think that matters to me and what would white says joining the majority opinion of just black is that should be disclosed because the only way we make arbitration successful the only way we fulfill the mandate of the f a a and the only way we would require disclosure no your honor st of all as the as a legal question the mere violation of the federal rules in enough itself cannot be the basis of make it or the supreme court in hall street has made clear that the sole grounds for vaguer are the statutory requirements the relevant one here being a bit impartiality not mere violation of the arbitral rules but to relationship or past relationship that is quite likely to affect impartiality or might reasonably create an appearance of partiality or bias again the standard for they cater is greater but the facts don't evidence in the record that shows any u b s and if he ever did work for axiom was an overseas u s u b s entity in europe that did some work long before this arbitration had occurred actually manage that's exactly right your honor i think of it as a temp agency for a lawyer is where samantha has a relationship with axiom he's assigned to do work for a particular entity in this case cyber and he has no insight into what other client engagements axium had with other clients years ago overseas and s counsel's argument do they tie these attenuated connections and attenuated is exactly the word to actual an actual theory of partiality there is no reason why even if arbitrat the did discover the fact that axiom had years before the arbitration done some work for an overseas u b s affiliate there's no reason for arbitrator asa method to conclude that renders me partial undisputed that the soul connection will let me start it's undisputed that arbitrator awesome if there's no evidence that he knew about this the theory is that is that u b s or an affiliate a nonparty affiliate what had some connection to d p chief for a one k plan but there's no evidence that samantha was a participant in that for a one k plans there's no evidence that he knew that u b s had any relationship with that plan s wasn't even the sponsor of that plan the evidence shows was they nonparty u b s affiliate received about seventy five thousand dollars two to three years before this arbitration ended to find an insurance carrier to be the sponsor for this for a one k plan so again we're talking about an extraordinarily attenuated connection between his employer and a u affiliate with there's no evidence that he knew anything about it and it again to go back to the question of the finra rule even if he did know about it there's no tie to why that somehow makes insurance carrier for that plan having nothing to do with this arbitration at all and as for cyber your honor the evidence shows that u b s held one half of one percent of stock and invesco in turn held shares in cyber and putting the math together that meant that the u b s and he held less than one half of one percent of the cyber stock the evidence doesn't even show that u b s held it in a proprietary manner and in fact the entity b s s it management most likely help it for customers and so u b s didn't even hold it again there's no evidence that arbitrates there are awesome mate that even knew about the owning the holding of the shares in invesco there's no evidence that he knew invest shares in cyber and so none of the that's it none of those attenuated connections of which he knew nothing about according to this record would even give the rise of an appearance of partiality or bias they are so far removed from the substance of this  case and with respect to d p t an axiom he was no longer affiliated with them by the time of the final hearing in this case and so there's there's absolutely no theory that could render him  evidently partial counsel what about what about your what if we disagree with you but if we just think he would disqualify a based on the conflict you argue that because the other two arbitrators agreed that  that articulate that we've articulated in the briefing that i can expand upon you however to answer your specific question about our argument under fort hill i think the statutory language is certainly not clear as to whether it forecloses this at all st of all it's not clear whether the either of them applies to the arbitrators or to the earlier part of that sub pronk of the statute meaning corruption or partiality but even if it did apply to the arbitrator's all of that is prefaced with the word may that the judge may vacate the conviction and so there are some still some element of causalities and i think that there are potentially cases but not this one where the bias portrays itself at the hearing itself in a way that evidently affects how the other arbitrators perceive the case so you can imagine a bias chair person who makes evidentiary rulings inappropriate comments during the hearing that impacts the evidence that the other two arbitrators are actually receiving during the hearing and perhaps in that instance the bias of one really does impact the proceeding but here there is no evidence at all against syria taking your honour's hypothetical that that which we usually don't concede that awesome if there was bias to discover the details of these connections so that they could have been disclosed well i'm not sure that there's a burden on the party mean obviously there would be sort of you know ethical concerns that i don't believe by has as addressed with respect to u b s or counsel in terms of raising any of this i can say with confidence that u b s and counsel were not sort of sitting on any knowledge themselves of these attenuated connections question yes i'm sorry so so the the arbitrator in this case submitted he updated his disclosures twice showing that he was attentive to updating his disclosure attenuated connection between his employer and u b s and we're talking about again to that occurred years before the arbitrate arbitral hearing and this very very very minor ownership  are you saying that in his disclosures he did disclose connections between so these three entities i want to be very clear yes he disclosed the connections between him and these three entities absolutely he disclosed each one of them and he updated his disclosure when he returned to axiom even though he had been an axiom in a prior period but he was just aware of the connection between the entities yes that's exactly right and there should be no surprise that he was unaware and the logical inference here from an arbitrator who update updated his disclosures given what these attenuated connections are is that he conducted a reasonable investigation and would not have thought to look for these types of attenuated connections and that's why courts impose the burden on the parties particularly in a seventy million dollars case to do their due diligence on arbitrators so that and to raise conflicts if they find any during the arbitration rather then giving them two bites at the apple seeing how they do in the arbitration and then bringing the classic sore loser type challenge which really is what's going on here thank you  that it's where i was planning to start st of all i think it's important to dispel all of the impression that the council tried to create the beginning of his argument that this was somehow a battle between two large financial institutions  it wasn't and so we come to this looking at partiality partiality and whether something is too attenuated from the perspective of one of my client from which is a historic nonprofit savings association for public sector employees current or former investment advice and suffered terrible losses seventy million dollars in losses which come not just on the balance sheet of some pig bank but from the pockets of working class puerto ricans so from that basis if you look at outside of the financial sector and now they know they have an arbitrator who has these multiple albeit through employers multiple connections to one of the world's largest banks and the counterparty of the opposing party in this arbitration that would be cause for concern now the reason why it's so important for this court to go back to basics and to decide st principles here is if we're talking about a mere appearance of by a standard which is what we believe the supreme court set down in common with gun here you know they say if you have the if you don't have the facts argue the law if you don't know the law are you the facts were if their connections were closer with this being easier case absolutely but our view is a person would have multiple overlapping current connections to the counter party to u b s the party in the case that sufficient under finra strict disclosure rules to give the other party an opportunity just like a defendant going into a trial looking at a jury  expired that decision may be the most important decision the party makes throughout the entire case they should have an opportunity make that with full and complete information can also hear opposing counsel with your point that even if these are violations and or rules absolutely your honor and i am glad you asked that and i will take extra much extra time that's not my argument my argument is not because it was a violation of the federal rules we're entitled to to have a do over or to have this award vacated the us supreme court said the finn rules are highly significant to this analysis the district court did not consider them so i think eleven dollars fair result here would be to go back to the district court with clarification as to what evidence partiality means under the f a a and clear instructions that the funeral rules need to be considered in the weighing of whether something is too trivial or to an attenuated to justify big picture and then do that analysis it's not that the federal rules themselves are dispositive they're not that settled all of the supreme court but they're highly significant and they weren't considered here below judge thompson last inquire one more yes of course more of our trying to get you back to the staff you to same way as the numbers council right it sounds like you're basically arguing for two different cases but in new prime and amazon this court talked about the concept of herding where you get this sort of judicial inertia this accretion of case law and people stop thinking about st principles i would recommend perhaps the best decision on this  answer your question to a point is the pro construction case out of the eastern or to pennsylvania one of the only cases i've read that goes all the way back to the case law and just locates where moral light an out of circuit decision which was  like a labor case split off from commonwealth coding and created this notion that you can't reconcile justice white and black decisions in commonwealth coding that they in fact have two different standards and we're the judge comes out in a row construction is of course this doesn't have to be monolithic of course you can have a different standard that applies when the parties have agreed by contract to litigate their dispute in front of neutrals you can only have the partiality or impartiality that you agree to if you accept partial arbitrators if you accept some will be industry side some will be employer side well you can't complain about that after the fact but if you agreed and the purpose of the f a a by the way is not just to promote arbitration it's to promote the enforcement