the morning may it please the court david donohue for appellants with me today is my partner matthew until you came along way we're interest to hear your argument we did come a long way the district court's decision granting abs motion to vacate on the basis of evident partiality should be reversed for three reasons number one the legal standard applied by the district court was incorrect number two the undisclosed relationships themselves are insufficient to create a reasonable  impression of partiality and three by failing to inquire about the scope of the disclosed prior relationship between a i g and the arbitrator's for maybe and waive its ability to challenge the arbitration award on that basis after their work came out sounds knowledge of a potential conflict and fails to object to it then they waive it and i think that is the reason behind it is clear because you when you have evidence partiality as a standard for the hopes of coming up with some kind of relationship that they can then turn around and claim evident partiality after the fact when and when in fact what they're really complaining about is that they lost enough the arbiter in this case was a partner in a law firm correct that's correct and law firms big or small have to be very careful about conflicts of interest absolutely i can remember as a young lawyer writing the man letter to the individual that the client who came in to see me said ody money in the response i got back ones you need to talk with your partner down the hall because he wrote the agreement but there are serious consequences from not having complete methods of screening off potential conflicts that that's true there were some things i understand your position is that there were some undisclosed things  that are frankly of no moment but there were some undisclosed things like this particular auditor she had been selected as a neutral by a i g right well i'm saying she was a partner well i think that that there is an important distinction i mean when we're when you go back to the example you gave you know normal conflicts of interest issue when it comes to representing a client obviously the rules of professional conduct operate so that you you impute the prior representation of your partner's to the lawyer that's not quite the same analysis as is required here here there has to be some culpable mental state on the part of the arbitrator in order to reach a conclusion that this arbitrator was reasonably partial or there was that so you could create an impression of reasonable partiality tell me if i'm wrong about this that was there one of the issues in the arbitration was that you know adji was essentially an alter ego of the particular affiliates that were defendants so the responsibility of a i g for the affiliates and underneath that feeling its responsibility to a i g was an issue in the arbitration rect it was a claim that it was an issue in the arbitration that's correct that is correct and one of the things she did not disclose was the fact that the firm had represented a i g affiliates in the past correct well she does and i long about that well partially ok tell me she disclosed first and foremost  turns out after an exhaustive look there were other affiliates who are clients of the firm correct that's correct so you know that the impact of that i mean it has to be still measured by some connection to the arbitrator herself it's not that it's not the standard in the ninth circuit under some it's a new reason c and certainly not based on a plain reading  f section ten of the f a a and in light of all st that this sort of constructive knowledge reaches the level of culpability that is necessary before a  arbitration or working be vacated so there's still this lack of connection and it's it's never been as simple as just simply imputing knowledge so is it is it your what would complete the disclosure is really of no moment that's ok well i don't think any court has held that there is a duty to disclose relationships or facts that are not of significance in the courts it just say that straight out but it also sort of ignores the fact that her duty was whether you look at how it sat in the triple the aaa or if you look at smith's or new regency is she had a duty to perform a reasonable investigation and she did that in this case there's no evidence in the record that her firm's conflict  process was structurally deficient in any way it was appropriate for the sox and the fact that they couched the duty of the to investigate as a reasonable one contemplate the very situation here that an arbitrator could conduct a reasonable investigation yet still have that investigation not lead to the discovery of all of the  disclosable facts and i think what the temptation here and what the district court did is basically use the this constructive knowledge concept to gauge whether or not the investigation was reasonable so that if the investigation disclose all of the relationships it was reasonable if it did not then it was  g or people in a i g works with would what happened in the arbitration have been a complete disclosure yeah because at that standpoint  you know the chronology of their representation is very important here and it's almost there is can be certainly dispositive by the time that arbitration occurred the firm was and an adverse relationship with a i g and it's entities that she disclosed that there were four active matters that that the firm had with american general life  accident and she said that there were several current actions that were her firm was adverse to a i g so in my hypothetical she could have taken the case there's yes there's no conflict there would have been no requirement for her to make full you came from national yes your honor good morning it's quite an honor for me to be here today i'm here with dewey branstetter who is also from nashville and then george king who is an attorney here in california please the court i'm here on behalf of pin time and american records network at daly city california we're asking the court to affirm the district court's vacate or at this arbitration due to evident partiality arising from twenty five undisclosed relationships between arbitrators a law firm and the american general companies we would have a chance so i'm sorry when we go here we would have a different case wouldn't we if your client at the beginning of the arbitration had started asking questions and asked for a full and complete disclosure would it's hard to know your honor but and this court in the regent seen well let me put it this way if your client which they did had asked for a complete disclosure or asked more questions about the relationship with ai g and any of its affiliates and the arbiter had said i'm aware of nothing else be a different case wouldn't you might be a different no obligation on your client's part to ask questions let me set the stage first before i answer that so you're a party to aaa arbitration and you're told by aaa that the arbitrator is going to disclose past and present relationships with the parties is going to disclose direct and indirect relationships with the parties is going to disclose the connections to the parties and their subsidiaries and their fillets and then you're provided an oath by the arbitrator that says i did all of those things that aaa told me to do and based on all of that here are my disclosures and you believe the arbitrator and you believe the oath and you believe the process any review what the arbitrator but then why did you do an investigation after you lost when i received that award there were numerous things that caused me concern and i submitted it was sure if you didn't contain you that wrong well we won on the counter claims we successfully defended against them we did lose on our claims but what jumped out at me and what causes me concern your honor in the district court made findings of fact to this effect which were reviewed on a clearly erroneous standard before this court but there was no citation to the law or to the transcripts the op arbitrator asked us to prepare findings of fact the conclusions of law we submitted one hundred twenty seven pages american general submitted one hundred to the arbitrator said to the extent i agree with you i'm going to cut and paste from that significant amount of work none of that was in the four pages and well let me let me ask if i may a slightly different question but it's related to what judge hawkins asked you earlier there were a number of potential conflicts or relationships that were disposed initially and then during the course of the arbitration as the arbitrator learns new things she disclosed those you know so and so i hired them and they played in the band and we have this expert witnesses saw it so there was like a fairly large number of disclosures that were made and don't we have to consider the undisclosed things in relation to that in other words to determine whether the nondisclosure is trivial in the words of new regency  don't we have a different situation where there are undisclosed things and you knew nothing versus undisclosed things and you are knew a lot in other words there is a continuum of  triviality your importance but don't we have to weigh it against what you are already know the district court made a finding of fact in this case that nothing put us on and that's a legal that's a legal that's a legal question it's not about a finding of fact it viewed against the things that were expressed we disclosed earlier what was disclosed made the relationship between the law firm and american general even handed so on some in some respects the law firm had been adverse to american general company in other respects a law firm and the attorneys for american general company what i what we were told is that our law firm has been adverse to a companies that the law firm has represented that they didn't tell us about and based on my research american home insurance was one of the least significant there was one law there was one case but national union fire their words seven or eight cases so when you look at what was disclosed in the district court agreed with us it seemed even handed but when you actually add in what wasn't disclosed the scales tip heavily in favor of american general and then when you're in my position you start to worry you know there's this long standing relationship one of the things that i could never have discovered through all of my research and that came out only during the district court proceedings because american general that's not disclosed to me how am i in two thousand and fifteen to feel not to not to worry or feel that this law firm would be unrestrained in considering a multimillion dollar judgment against a judgments or we ask questions and my question is is this was there anything to prevent you from asking the arbiter is there anything else there is the worry that you will offend the neutral and we cited a case to that effect in our brief the arbitrator has evolved right me as a very experienced lawyer you're really good on your feet but you can counter that any way you want we appreciate your disclosure we know you want to be fair a neutral but may i ask is there anything else you care to disclose about your relationship or your firm's relationship past or present with a i g or any of its affiliates if that  happened and she had said no we would have a completely different case we might have and actual bias case if that it happened i'm not sure but when you receive the of an arbitrator's saying to you a priors all these things i did them and i have nothing else to disclose and you believe the zero rest on the earth and then there were other disclosures made that actually added comfort to us like that her sister sold insurance for presidential fifteen years earlier and prevention as a totally unrelated insurance company to america in general but then we find out in that exact same time period that bradley is representing a g l a and we weren't told the justice white and commonwealth codings in the concurrence which is being given great weight said that if an arbitrator is not willing to do the investigation that the article body requires arbitrator needs to let the parties now and in this case we were told i have searched for direct and indirect i have searched for the subsidiaries i have searched for and the parties themselves i've searched for all time periods and there's nothing else i have to disclose and so you do have a risk of offending the neutral who has just their their justice is in your hands and there's very limited ability to appeal from the decision that that person may so are you telling us that in these situations there is no requirement on the party on the part of a coin to inquire further orm is there such a duty or is there no such duty there is not a duty placed on the parties unless the parties have some actual knowledge of something out there like and in the dirt  case that counsel was citing one of the parties it was a party appointed neutral party appoint an arbitrator and the part of the other side was on constructive notice that the party appointed arbitrator had connections to the party who had appointed it and in last seen this court noted that the conflict undisclosed ethics controversy could have easily been discovered because it related to nevada flag in the disclosure that's made there is no duty to an i believe that's the law of the ninth circuit and i'm citing from the regency the burden to investigate is not on the parties and i think the district court said it well that we had the least amount of information than anyone so when the aaa requires the checklist for conflicts where every party is supposed to list all of their subsidiaries and related entities the aaa treats that is confidential and we're not allowed to see it and we don't have access to law firms internal conflicts system we don't have access to their client list the only way i was able to find this and let's it let's say you have a some duty to do some searches if you went on to lexis westlaw pace or any of the local subscription services that i used to in my investigation and you put in the names of a a g l a a g l and you put arbitrators name nothing will show up if you put in the name of the law firm nothing will show up because the law firm's names are not part of the search engines the only way i was able to figure this out because i was concerned i was driven by concern not because this was a watch but because i had genuine concern the only a way i was able to figure this out was to start hauling lawsuits at each of these parties with lawsuits if their affiliates lawsuits of their subsidiaries and i would open the lawsuit and i would pull up the names of the attorneys and then i would go over to the bradley website and i would cross check it against the bradley website and i did that as they  to do the extraordinary and that i'm just wondering where you draw that line of how intensive the arbitrator has to be when they've done what you describe as the ordinary she did not tell you what the aaa required her to do which was to check for subsidiaries and affiliates but even with the conflicts check that she did brian the fact that a g l a was a client was not disclosed and the other component of her deposition responses she was asked what does your firm require you to do and what did you do in this case her firm or choir's to do the internal conflicts check where she can just put the names and and then send a daily e mail view i mean what would the e mail have turned up it would have made a difference because they are traitors the contact with american general was from frederick come back he was an arbitrator's office and our practice group at the subsidiaries we try to get a conflict check and they wouldn't give it to us we're being named in insurance policies were the only times the firm actually written into insurance policies as mandatory arbitrators you need to disclose all of this before you take this representation on need to wind up thank you very much thank you for subsidiaries and affiliates that appears nowhere in the notice of appointment just that she had to fill out in the record which is he or one forty through one forty three it's not in the  a code of ethics that they cite to us rather the only reference to that at all is in a separate document that is sent to each party where the aaa suggests that as a party filling out this  you know you might want to include your affiliates and subsidiaries that's not a form that the arbitrator that doesn't equate to an arbitrator having a duty to yes ok and the parties also had that document correct so then i assume going back to the question judge hawkins asked opposing counsel of either side including opposing counsel could have further inquired with the the end duties would have been or what it would have required for them to do on the front end to get more information this exhaustive internet search that that's not necessary she disclosed insignificant all they had to do was ask the arbitrator can you elaborate on that what do you mean can you give us more information about what that means is former client in fact we asked for follow up on those on the four  disclosed where they were adverse to my client aca of course we asked will tell us more about that and she did so that's really all that was involved there is really it was really did the other side ask for any follow up not at all didn't object no objection whatsoever until after the fact and so for them sit here and say essentially we are concerned with the scope of the relationship between this law and this law firm argued she interpreted that as well it just shows that a gee wouldn't allow them to act contrary to their interests as late as two thousand and twelve but that misses the rest of the story the rest of the story is they asked for that waiver because there was a series of conflicts between a g and their corporate clients and so in response to that they made this decision to sever their ties with a g e so not only at the time of the arbitration was there no current relationship they had actually been adverse and were adverse at the time so so not only was there no reasonable pression of bias and there was no incentive on anyone's part and the law firm to