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*********************************************** 
CHARLES HENRY III ET AL. v. GREGORY

IMBRUCE ET AL.

STARBOARD RESOURCES, INC. v. CHARLES

HENRY III ET AL.

(AC 39155)

DiPentima, C. J., and Sheldon and Mullins, Js.

Syllabus

The plaintiffs, investors and limited partners in certain limited partnerships,

brought actions against the defendant G and the defendant limited liability companies that acted as general partners of three limited partnerships, alleging claims for, inter alia, fraud and breach of fiduciary duty,

and seeking injunctive relief and monetary damages. Thereafter, the

matters were referred to arbitration before an arbitrator, who issued

an award in favor of the plaintiffs. Subsequently, the trial court granted

the plaintiffs’ motion to confirm the arbitration award and denied the

defendants’ motion to vacate the award, and rendered judgment thereon,

from which the defendants appealed to this court. Held:

1. The defendants could not prevail on their claim that the trial court improperly failed to vacate the arbitration award, which was based on their

claim that the arbitrator failed to disclose a conflict of interest stemming

from the fact that she had arbitrated the divorce of an attorney, V, who

had represented certain of the defendants in a separate malpractice

action: the fact that the arbitrator had arbitrated the personal divorce

of an attorney who represented two of the defendants, including G, in

a separate malpractice action did not give rise to a material relationship

with a party that would require disqualification, as the divorce arbitration

involving V did not involve any of the parties, attorneys or witnesses

to the arbitration in the present case, concerned an unrelated matter

and involved V, who did not participate in the arbitration in the present

case, and the fact that the arbitrator rendered an adverse decision in V’s

divorce did not, standing alone, amount to evidence of bias; moreover,

although the defendants claimed that the arbitrator’s initial disclosures

of certain previous arbitrations involving one of the parties’ law firms

required the disclosure of all previous similar arbitrations, the purported

conflict involved in the present case concerned the arbitrator’s involvement in two unrelated matters and was trivial, and, therefore, the trial

court did not err in declining to vacate the arbitration award for evident partiality.

2. The defendants could not prevail on their claim that the trial court erred

in confirming the arbitration award where the arbitrator failed to order

production of relevant and probative evidence from the plaintiffs and

allowed the plaintiffs to amend their counterclaim to allege new claims

for which discovery was not allowed: the defendants failed to establish

that they were substantially prejudiced by the arbitrator’s failure to

compel the plaintiffs to turn over certain evidence that allegedly was

central to the defendants’ claim of damages, as the arbitrator found that

the plaintiffs were not liable to the defendants and, thus, any evidence

or lack thereof as to the defendants’ damages would not have affected

the award; even if the arbitrator erred in concluding that certain documents that included statements made by the plaintiffs’ attorney to the

Department of Banking were privileged, or by not compelling the production of certain communications involving the plaintiffs and their attorney, the defendants were unable to demonstrate substantial prejudice

resulting in a violation of their right to a full and fair hearing, as the

defendants’ speculative assertions about what the requested documents

and communications may have contained did not demonstrate prejudice;

and the defendants’ claim that they were prejudiced by the arbitrator’s

decision to allow the plaintiffs to amend their counterclaim after the

conclusion of discovery and less than three weeks before the hearing

was unavailing, as the arbitrator had broad discretion to allow the

amendment to the pleadings, and the defendants could not demonstrate

that the arbitrator’s decision substantially prejudiced them such that
the arbitration was fundamentally unfair, as they had long been on

notice of the allegations in the amended counterclaims, which were

based on the same factual allegations present in the plaintiffs’ original

complaint, and the arbitrator had allowed mutual amendments to the

parties’ claims, expressly conditioned on closure of discovery.

3. The defendants’ claim that the arbitrator lacked the authority to enter

an award against G individually was unavailing, as G assumed the obligation to arbitrate and was responsible for the award rendered against him,

the demand for arbitration included G as a named party, G repeatedly

represented himself both at the trial court and in the arbitration as

involved in and bound by the arbitration, and he did not argue that he

was not a party until after the arbitrator rendered her award; moreover,

there was no merit to the defendants’ claim that the arbitrator exceeded

her authority under the arbitration agreements by apportioning costs

and imposing attorney’s fees, as the arbitrator’s interpretation of the

scope of the arbitration agreements had to stand where the submission

to arbitration contained no express restrictions as to those issues, and

the parties agreed to expand the scope of the arbitration beyond the

original agreements.

Argued September 18—officially released December 26, 2017

Procedural History

Actions to recover damages for, inter alia, fraud, and

for other relief, brought to the Superior Court in the

judicial district of Stamford-Norwalk where the actions

were consolidated; thereafter, the matter was transferred to the Complex Litigation Docket, where the

court, Genuario, J., granted the defendants’ motion to

stay the proceedings pending arbitration; subsequently,

the plaintiffs filed a motion to confirm an arbitration

award; thereafter, the defendants filed a motion to

vacate an arbitration award; subsequently, the court

held a hearing on the motions; thereafter, the court

granted the plaintiffs’ motion to confirm the arbitration

award and denied the defendants’ motion to vacate

the arbitration award and rendered judgments thereon,

from which the defendants appealed to this court.

Affirmed.

Richard S. Gora, for the appellants (defendants).

Scott M. Harrington, with whom, on the brief, were

Jonathan P. Whitcomb and Bridgitte E. Mott, for the

appellees (plaintiffs).
Opinion

DiPENTIMA, C. J. The defendants1 appeal from the

judgments of the trial court confirming an arbitration

award in favor of the plaintiffs.2 On appeal, the defendants claim that the court erred in denying their motion

to vacate the award and in granting the plaintiffs’ motion

to confirm the award because the arbitrator failed to

disclose a conflict of interest, failed to order production

of certain evidence and exceeded her powers under the

arbitration agreements. We disagree. Accordingly, we

affirm the judgments of the trial court.

The following facts, as set forth by the trial court in its

April 11, 2016 memorandum of decision, and procedural

history are relevant to this appeal. ‘‘These consolidated

cases3 arise out of the plaintiffs’ investment in three

limited partnerships: Giddings Oil & Gas, L.P. (Giddings,

L.P.), Hunton Oil Partners, L.P. (Hunton, L.P.), and

ASYM Energy Fund III, L.P. (ASYM, L.P.). The plaintiffs

are investors and limited partners in each of these limited partnerships. Each of the limited partnerships had

a general partner which is a limited liability company:

Giddings Genpar, LLC (Giddings Genpar), Hunton Oil

Genpar, LLC (Hunton Genpar), and ASYM [Capital] III,

LLC (ASYM Genpar), respectively.

‘‘Each of the limited liability companies that served

as a general partner of a limited partnership had a

manager; the manager of Giddings Genpar was Giddings

Investments, LLC, the manager of Hunton Genpar was

Glenrose Holdings, LLC, and the manager of ASYM

Genpar was ASYM Energy Investments, LLC. The plaintiffs in their complaint alleged that the individual defendant Gregory Imbruce . . . exercised complete

control over the managers and therefore over the general partners and over the limited partnerships. The

various companies which acted as general partners and/

or managers, as well as Imbruce individually, will be

collectively referred to as the . . . defendants. The

plaintiffs brought this action individually and derivatively on behalf of the three limited partnerships.

‘‘In their second amended complaint4

(in docket number CV-12-6014987-S) the plaintiffs alleged various fact

patterns pursuant to which they asserted that the . . .

defendants have made misrepresentations in the marketing of the investments, that the . . . defendants

have violated the provisions of the Connecticut Uniform

Securities Act (CUSA), [General Statutes § 36b-2 et

seq.], and that the . . . defendants have wrongfully

diverted assets of the various limited partnerships to

their own purposes or accounts. The second amended

complaint sounds in [eleven] counts which seek both

injunctive relief and monetary damages, alleging counts

that sound in fraud, breach of fiduciary duty, conversion, civil theft, and violation of the Connecticut Unfair

Trade Practices Act (CUTPA), General Statutes § 42-
110b et seq., among other theories of relief. The prayer

for relief in the second amended complaint seeks both

equitable relief and monetary damages.

‘‘The case of Starboard Resources, Inc. v. Henry,

Superior Court, judicial district of Stamford, Docket No.

CV-12-6015112-S (Starboard case), is an interpleader

action in which Starboard Resources, Inc. (Starboard),

seeks, inter alia, an order of the court authorizing it

to deposit the disputed shares in court and a judicial

determination regarding the relative rights of the parties

to those shares.

‘‘On July 11, 2014, the court granted the motion of

the . . . defendants to stay these actions pending completion of arbitration proceedings, some of which had

already begun. . . . Consistent with the court order

staying this action, the parties proceeded to arbitration

and by subsequent agreement broadened the arbitration

beyond that which they had previously agreed to in their

limited partnership agreements.5 The parties proceeded

with the arbitration before a single arbitrator.

‘‘On September 10, 2015, the arbitrator rendered an

award in favor of the plaintiffs herein, who as respondents in the arbitration proceeding had filed a counterclaim, including allegations similar in nature to the

allegations of the second amended complaint previously described. The award consisted of declaratory

awards, monetary damages, awards of [attorney’s] fees,

interest, injunctive relief requiring an accounting, postjudgment interest, as well as awards of arbitration fees

and costs.’’ (Footnotes added and omitted.)

On September 14, 2015, the plaintiffs filed a motion

in the trial court to confirm the arbitration award. On

October 13, 2015, the defendants filed an objection to

the plaintiffs’ motion to confirm the award and a cross

motion to vacate the award accompanied by scores of

exhibits. A flurry of procedural and substantive filings

followed, until, on February 8, 2016, the court held a

hearing on the parties’ respective motions. The court,

after further briefing, rendered judgments in accordance with the arbitrator’s decision on April 11, 2016,

confirming the arbitral award. This appeal followed.

Additional facts and procedural history will be set forth

as necessary.

We begin with applicable legal principles. The court

found, and the parties agree, that these cases, though

brought in state court, are governed by the federal Arbitration Act, 9 U.S.C. §§ 1 through 16 (arbitration act),

because the underlying contracts involve interstate

commerce.6

‘‘Arbitration is essentially a creature of contract, a contract in which the parties themselves charter

a private tribunal for the resolution of their disputes.

. . . Arbitration agreements are contracts and their

meaning is to be determined . . . under accepted rules

of [state] contract law . . . .
‘‘Judicial construction of an arbitration agreement,

however, is not guided solely by the principles of relevant state contract law. The arbitration act; 9 U.S.C.

§§ 1 through 16; governs written arbitration agreements

that pertain to contracts involving interstate commerce.

. . . The arbitration act creates a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [a]ct . . . .

As federal substantive law . . . the arbitration act is

to be applied by state courts as well as by federal

courts. . . .

‘‘The purpose of the arbitration act is to ensure that

private agreements to arbitrate are enforced according

to their terms. . . . The arbitration act establishes a

strong federal policy favoring arbitration. . . . [W]hen

Congress passed the [a]rbitration [a]ct in 1925 . . . [i]t

intended courts to enforce [arbitration] agreements into

which parties had entered . . . and to place such

agreements upon the same footing as other contracts

. . . .’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) Hottle v. BDO Seidman, LLP,

268 Conn. 694, 701–703, 846 A.2d 862 (2004).

Accordingly, the court’s review of an arbitration

award is ‘‘extremely limited.’’ Burns International

Security Services, Inc. v. International Union, United

Plant Guard Workers of America (UPGWA) and its

Local 537, 47 F.3d 14, 17 (2d Cir. 1995). Courts may

vacate an arbitrator’s decision ‘‘only in very unusual

circumstances.’’ First Options of Chicago, Inc. v.

Kaplan, 514 U.S. 938, 942, 115 S. Ct. 1920, 131 L. Ed.

2d 985 (1995). ‘‘Following issuance of an arbitration

award, § 9 of the [arbitration act] provides that a party

may apply to a [trial] court ‘for an order confirming the

award, and thereupon the court must grant such an

order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.’ ’’

STMicroelectronics, N.V. v. Credit Suisse Securities

(USA), LLC, 648 F.3d 68, 74 (2d Cir. 2011). ‘‘Only a

barely colorable justification for the outcome reached

by the arbitrators is necessary to confirm the award.’’

(Internal quotation marks omitted.) D.H. Blair & Co. v.

Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006). Accordingly,

‘‘[a] party petitioning a . . . court to vacate an arbitral

award bears the heavy burden of showing that the

award falls within a very narrow set of circumstances

delineated by statute and case law.’’ Duferco International Steel Trading v. T. Klaveness Shipping A/S, 333

F.3d 383, 388 (2d Cir. 2003). Specifically, under the

arbitration act, an arbitration award may be vacated

only ‘‘(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.’’ 9 U.S.C. § 10 (a) (2012).7

Given these limitations on a court’s review of the

arbitration award, ‘‘[w]e review a [trial] court’s decision

to confirm or vacate an arbitration award de novo on

questions of law and for clear error on findings of fact.’’

National Football League Management Council v.

National Football League Players Assn., 820 F.3d 527,

536 (2d Cir. 2016); see also Kellogg v. Middlesex Mutual

Assurance Co., 326 Conn. 638, 645, 165 A.3d 1228 (2017)

(reviewing trial court’s vacatur de novo). We turn now

to the defendants’ claims.

I

The defendants first claim that the court should have

vacated the arbitration award because the arbitrator

failed to disclose a conflict of interest. Specifically, the

defendants argue that the arbitrator was required to

disclose the fact that she had arbitrated the personal

divorce of an attorney, Kenneth Votre, who represented

Imbruce and Glenrose Holdings, LLC, in a separate but

related malpractice action. We do not agree.

An arbitration award may be vacated ‘‘where there

was evident partiality or corruption in the arbitrators

. . . .’’ 9 U.S.C. § 10 (a) (2) (2012). ‘‘Evident partiality

may be found only where a reasonable person would

have to conclude that an arbitrator was partial to one

party to the arbitration. . . . Although a party seeking

vacatur must prove evident partiality by showing something more than the mere appearance of bias . . .

[p]roof of actual bias is not required. . . . Rather, partiality can be inferred from objective facts inconsistent

with impartiality. . . . A showing of evident partiality

must be direct and not speculative.’’ (Citations omitted;

internal quotation marks omitted.) Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729

F.3d 99, 104 (2d Cir. 2013). The party seeking vacatur

must prove evident partiality by ‘‘clear and convincing

evidence.’’ Id., 106. ‘‘[T]he evident-partiality standard

[is] not satisfied because the undisclosed relationship

at issue was too insubstantial to warrant vacating the

award. . . . [W]here an undisclosed matter is not suggestive of bias, vacatur based upon that nondisclosure

cannot be warranted under an evident-partiality theory.’’ (Citations omitted; internal quotation marks omitted.) Scandinavian Reinsurance Co. Ltd. v. Saint Paul

Fire & Marine Ins. Co., 668 F.3d 60, 72–73 (2d Cir. 2012).

Indeed, ‘‘there is no duty to disclose if the relationship

is trivial.’’ Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d

294, 307 (6th Cir. 2008). Nevertheless, ‘‘arbitrators must

take steps to ensure that the parties are not misled into

believing that no nontrivial conflict exists. It therefore
follows that where an arbitrator has reason to believe

that a nontrivial conflict of interest might exist, he must

(1) investigate the conflict . . . or (2) disclose his reasons for believing there might be a conflict and his

intention not to investigate. . . . [A] failure to either

investigate or disclose an intention not to investigate

is indicative of evident partiality.’’ (Citations omitted.)

Applied Industrial Materials Corp. v. Ovalar Makine

Ticaret Ve Sanayi, A.S., 492 F.3d 132, 138 (2d Cir. 2007).

The defendants argue that the purported conflict was

nontrivial and that the arbitrator misled them into

believing that no nontrivial conflict existed. Specifically, the defendants contend that they were misled

because the arbitrator’s initial disclosures at the start

of the arbitration suggested that she considered any

prior arbitral relationships to be per se nontrivial, but

the arbitrator then failed to disclose her arbitral relationship with Attorney Votre. We are not persuaded.

The conflict here alleged, if one existed, was merely

trivial—regardless of the substance of the arbitrator’s

initial disclosures.

In its memorandum of decision, the court found that

‘‘[t]he divorce arbitration did not involve any of the

parties to the subject arbitration. The divorce arbitration did not involve any of the attorneys or witnesses

to the subject arbitration. The divorce arbitration

involved an attorney who did not participate in the

subject arbitration and did not represent any of the

defendants or any other parties in the subject arbitration. The divorce arbitration involved an attorney who

represented some of the defendants in a completely

unrelated matter.’’

The defendants argue, however, that the arbitrator’s

adverse decision in Attorney Votre’s divorce, and the

Superior Court’s subsequent vacatur8

thereof, evince

such bias against Attorney Votre that a reasonable person would have to conclude that the arbitrator was

predisposed to rule against any party tangentially affiliated with him. We are not persuaded. The United States

Court of Appeals for the Second Circuit has ‘‘repeatedly

said that adverse rulings alone rarely evidence partiality, whether those adverse rulings are made by arbitrators . . . or by judges . . . .’’ (Citations omitted.)

Scandinavian Reinsurance Co. Ltd. v. Saint Paul

Fire & Marine Ins. Co., supra, 668 F.3d 75; see also

Burton v. Mottolese, 267 Conn. 1, 49, 835 A.2d 998 (2003)

(‘‘adverse rulings do not amount to evidence of bias’’),

cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed.

2d 983 (2004). The Superior Court’s vacatur of the arbitrator’s award in Attorney Votre’s divorce does not give

substance to the defendants’ speculative claim, especially where the vacatur was premised on a statutory

ground other than evident partiality. See footnote 8 of

this opinion.

There being no indicia of bias, the arbitrator’s involve-
ment in her professional capacity in a ‘‘completely unrelated matter’’ is too attenuated to be of any consequence

in the underlying arbitration. The Second Circuit has

held that ‘‘to disqualify any arbitrator who had professional dealings with one of the parties (to say nothing

of a social acquaintanceship) would make it impossible,

in some circumstances, to find a qualified arbitrator

at all.’’ Morelite Construction Corp. v. New York City

District Council Carpenters Benefit Funds, 748 F.2d

79, 83 (2d Cir. 1984). The arbitrator’s prior arbitration

involving Attorney Votre did not give rise to a material

relationship with a party that would require disqualification. Scandinavian Reinsurance Co. Ltd. v. Saint Paul

Fire & Marine Ins. Co., supra, 668 F.3d 74 (‘‘overlapping

arbitral service [is] not a material relationship with a

party . . . such as a family connection or ongoing business arrangement with a party or its law firm—circumstances in which a reasonable person could reasonably

infer a connection between the undisclosed outside

relationship and the possibility of bias for or against a

particular arbitrating party’’ [citation omitted; internal

quotation marks omitted]).

Nevertheless, the defendants argue that the arbitrator’s initial disclosures defined what kind of relationship is nontrivial for the purposes of this arbitration.

That is, the defendants argue that the arbitrator’s disclosure of some previous arbitrations involving one of the

parties’ law firms necessitates the disclosure of all previous arbitrations involving one of the parties’ law firms.

In support of this contention, the defendants rely principally on Applied Industrial Materials Corp. v. Ovalar

Makine Ticaret Ve Sanayi, A.S., supra, 492 F.3d 132,

and New Regency Productions, Inc. v. Nippon Herald

Films, Inc., 501 F.3d 1101 (9th Cir. 2007). Their reliance

is misplaced. In the former, the United States Court of

Appeals for the Second Circuit vacated an arbitration

award because the arbitrator, the chief executive officer

of a third party corporation, having first disclosed that

he had become aware of contract negotiations between

his subsidiary and a party’s parent company, failed to

investigate and disclose that, in fact, a contract already

existed. Applied Industrial Materials Corp. v. Ovalar

Makine Ticaret Ve Sanayi, A.S., supra, 138. In the latter,

the United States Court of Appeals for the Ninth Circuit

vacated an arbitration award where the arbitrator, having disclosed past negotiations on behalf of a previous

employer with people who later became executives of

one of the parties, failed to disclose his new employer’s

past negotiations with a film producer who was affiliated with one of the parties. New Regency Productions,

Inc. v. Nippon Herald Films, Inc., supra, 1110 (‘‘it is

precisely against the background of previously disclosed information that [the arbitrator’s] failure to disclose his new position might have ‘misled’ [the

defendant] ‘into believing that no nontrivial conflict

exist[ed],’ ’’ citing Applied Industrial Materials Corp.
v. Ovalar Makine Ticaret Ve Sanayi, A.S., supra, 137).

Neither case is analogous to the present one; the

conflicts in those cases are material, substantial business relationships in which the arbitrator had a specific,

material interest. The purported conflict here is arbitral

service in two completely unrelated matters. Logically,

for an arbitrator to ‘‘mislead’’ a party into believing that

no nontrivial conflict exists, a nontrivial conflict must

in fact exist. As we have stated, any purported conflict

here is trivial, as a reasonable person would not have

to conclude that it made the arbitrator partial to one

party to the arbitration. See Kolel Beth Yechiel Mechil

of Tartikov, Inc. v. YLL Irrevocable Trust, supra, 729

F.3d 106. Accordingly, the trial court did not err in

declining to vacate the arbitration award for evident

partiality.

II

The defendants next claim that the court erred in

confirming the arbitration award where the arbitrator

failed to order production of relevant and probative

evidence from the plaintiffs and allowed the plaintiffs

to amend their counterclaim to allege new claims for

which discovery was not allowed. The defendants argue

that each of these errors individually, or, in the alternative, that all of these errors together, amounted to misconduct in violation of 9 U.S.C. § 10 (a) (3). We do

not agree.

‘‘Courts have interpreted [§] 10 (a) (3) to mean that

except where fundamental fairness is violated, arbitration determinations will not be opened up to evidentiary

review. In making evidentiary determinations, an arbitrator need not follow all the niceties observed by the

federal courts. . . . However, although not required to

hear all the evidence proffered by a party, an arbitrator

must give each of the parties to the dispute an adequate

opportunity to present its evidence and argument. . . .

Federal courts do not superintend arbitration proceedings. Our review is restricted to determining whether

the procedure was fundamentally unfair. See Teamsters, Chauffeurs, Warehousemen, Helpers & Food

Processors, Local Union 657 v. Stanley Structures,

Inc., 735 F.2d 903, 906 (5th Cir. 1984); accord Concourse

Beauty School, Inc. v. Polakov, 685 F. Supp. 1311, 1318

(S.D.N.Y. 1988) ([t]he misconduct must amount to a

denial of fundamental fairness of the arbitration proceeding in order to warrant vacating the [award, quoting] Transit Casualty Co. v. Trenwick Reinsurance Co.

Ltd., 659 F. Supp. 1346, 1354 [S.D.N.Y. 1987], aff’d mem.,

841 F.2d 1117 [2d Cir. 1988]).’’ (Citations omitted; internal quotation marks omitted.) Tempo Shain Corp. v.

Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997). ‘‘Under the

[arbitration act’s] extremely limited standard of review

for vacatur requests, [trial] courts are not empowered

to second-guess such decisions—procedural or substantive—even if there is evidence that the arbitrator
erred.’’ ARMA, S.R.O. v. BAE Systems Overseas, Inc.,

961 F. Supp. 2d 245, 264 (D.D.C. 2013).

The Connecticut Supreme Court has held that arbitral

misconduct violates a party’s right to a fundamentally

fair arbitration hearing if that misconduct is substantially prejudicial. ‘‘[T]o vacate an arbitrator’s award on

the ground of misconduct under [General Statutes] § 52-

418 (a) (3),9

the moving party must establish that it was

substantially prejudiced by the improper ruling. . . .

This requirement that the moving party establish substantial prejudice is consistent with the showing that

this court requires to order a new trial when a trial

court makes an improper evidentiary ruling in a civil

trial. . . .

‘‘Federal case law considering whether an arbitrator’s

evidentiary ruling deprived a party of a fair hearing is

consistent with requiring the moving party to demonstrate substantial prejudice to vacate an award on this

ground. One federal court analogized to the standard

of review accorded trial courts’ evidentiary rulings and

declined to vacate an arbitrator’s award because ‘it

cannot be said as a matter of law that [the excluded

evidence] was decisive or that its exclusion was seriously harmful in the light of the other evidence in the

case.’ ’’ (Citations omitted; footnote added.) Bridgeport

v. Kasper Group, Inc., 278 Conn. 466, 476–77, 899 A.2d

523 (2006), quoting Newark Stereotypers’ Union No. 18

v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d

Cir.), cert. denied, 393 U.S. 954, 89 S. Ct. 378, 21 L. Ed.

2d 365 (1968).

The defendants argue that the arbitrator should have

(1) ordered production of documents relating to the

valuation of Starboard, (2) ordered production of the

statements made by the plaintiffs’ attorney to the

Department of Banking, (3) ordered production of communications between and among the plaintiffs and their

attorney and (4) denied the plaintiffs’ motion to amend

their counterclaim or at least allowed further discovery

thereon. Because the defendants cannot demonstrate

substantial prejudice, and, therefore, a denial of fundamental fairness, we are not persuaded.

A

First, the defendants argue that the arbitrator should

have compelled the plaintiffs to turn over documents

pertinent to the valuation of Starboard because its value

was central to the defendants’ claim of damages. The

arbitrator, however, found that the plaintiffs were not

liable to the defendants. As a result, any evidence—or

lack thereof—as to the defendants’ damages would not

have affected the award. The defendants, therefore,

cannot establish substantial prejudice. See Odeon Capital Group, LLC v. Ackerman, 864 F.3d 191, 194 (2d

Cir. 2017) (holding that petitioner must demonstrate

material nexus between allegation of fraud under 9
U.S.C. § 10 [a] [1], and award); Karppinen v. Karl Kiefer

Machine Co., 187 F.2d 32, 34–35 (2d Cir. 1951) (affirming

arbitration award where perjured material evidence

was nonetheless ‘‘extremely remote’’); Rintin Corp.,

S.A. v. Domar, Ltd., 374 F. Supp. 2d 1165, 1170 (S.D.

Fla. 2005) (‘‘[p]laintiff has not shown how the discovery

it claims it was unable to obtain is relevant, or would

have affected the Award in any material respect’’), aff’d,

476 F.3d 1254 (11th Cir. 2007). Thus, even if we assume,

arguendo, that the arbitrator erred in refusing to compel

discovery of the valuation material, such error did not

affect the award. The arbitrator’s refusal to compel

discovery of it, therefore, is not substantially prejudicial

and, thus, is not fundamentally unfair.

B

Second, the defendants have admitted that they have

‘‘no idea’’ what the communications with the Department of Banking, which may have been relevant to the

defendants’ defenses against the plaintiffs’ CUSA claim,

contain. The defendants speculate that the documents

may reveal ‘‘impeachment material, damaging admissions by the [p]laintiffs, contradictions or other facts

which were and remain unknown to the [defendants].’’

The arbitrator concluded that these documents were

privileged. The defendants nevertheless argue that

because they were deprived of the opportunity to examine these documents, they were denied a full and fair

hearing. This argument is unavailing.

‘‘The [arbitration act] does not bestow on a party the

right to receive information about every matter that it

might consider important or useful in presenting its

case.’’ Scandinavian Reinsurance Co. Ltd. v. Saint

Paul Fire & Marine Ins. Co., supra, 668 F.3d 77. The

defendants’ speculative assertions about what the

requested documents may have contained do not demonstrate prejudice, and, thus, fundamental unfairness.

The defendants had ample opportunity to challenge

the plaintiffs’ CUSA counterclaim in the arbitration.

Throughout the preliminary stages of arbitration and

in the hearing itself, the defendants offered several

defenses, produced testimony as to those defenses,

introduced numerous exhibits in support thereof, and

thoroughly cross-examined the plaintiffs’ witnesses.

Thus, the court correctly concluded that the defendants

were not deprived of a fair hearing. See Tempo Shain

Corp. v. Bertek, Inc., supra, 120 F.3d 20. Therefore,

even if we assume, without deciding, that the arbitrator

erred in concluding that the documents were privileged,

the defendants are unable to demonstrate substantial

prejudice resulting in a violation of their right to a full

and fair hearing.

C

Third, the defendants argue that they were prejudiced

by the arbitrator’s decision not to compel production
of communications between and among the plaintiffs,

their attorney, Jonathan Whitcomb, and erstwhile plaintiff, William Pettinati, who later aligned with Imbruce.

The defendants contend that there was no privilege

protecting these communications, and that even if there

was, Pettinati waived the privilege by filing a grievance

against Attorney Whitcomb. Additionally, the defendants argue that the arbitrator clearly was biased

because she ordered discovery of their own communications with their former law firm, Levett Rockwood,

P.C. The plaintiffs counter that the documents remained

privileged because they were created in the then common interest of the plaintiffs, Pettinati and Attorney

Whitcomb, an interest that the plaintiffs still hold in

common with their attorney. The plaintiffs also argue

that the defendants filed a malpractice claim against

Levett Rockwood, and thereby waived any privilege.

Once more, the arbitrator’s conclusions are entitled

to great deference. See ARMA, S.R.O. v. BAE Systems

Overseas, Inc., supra, 961 F. Supp. 2d 264. Even if we

assume, without deciding, that the arbitrator erred in

her application of the legal principles underlying the

various privileges and waivers asserted, the defendants

cannot demonstrate substantial prejudice, and, thus,

fundamental unfairness: They again admit that the contents of the communications at issue are unknown to

them, arguing only that they are ‘‘potentially relevant

and dispositive’’ without demonstrating how or why.

Indeed, the defendants are merely disputing the merits

of the arbitrator’s conclusion rather than whether the

conclusion resulted from the violation of their right to

a fundamentally fair hearing. This is not the evidence

of misconduct the arbitration act requires.

D

Fourth, the defendants argue that they were prejudiced by the arbitrator’s decision to allow the plaintiffs

to amend their counterclaim after the conclusion of

discovery and less than three weeks before the hearing.

Specifically, the defendants contend that the plaintiffs

waived and/or withdrew several claims they then realleged, namely, a CUTPA claim, a civil theft claim and

alter ego claims against Imbruce personally. We are

not persuaded.

The arbitrator has broad discretion to allow amendments to pleadings. See Saphir v. Neustadt, 177 Conn.

191, 206, 413 A.2d 843 (1979) (‘‘a trial court may allow,

in its discretion, an amendment to pleadings before,

during, or . . . after trial to conform to the proof’’);

see also Certain Underwriters at Lloyd’s London v.

Ashland, Inc., 967 A.2d 166, 175 (D.C. 2009) (‘‘we note

that pleading requirements in arbitration proceedings

are generally relaxed’’). That discretion notwithstanding, the defendants still cannot demonstrate that the

arbitrator’s decision substantially prejudiced them such

that the arbitration was fundamentally unfair. The
amended counterclaims at issue were based on the

same factual allegations present in the plaintiffs’ original complaint. The defendants had long been on notice

of these allegations. See Briere v. Greater Hartford

Orthopedic Group, P.C., 325 Conn. 198, 206–10, 157

A.3d 70 (2017) (reasserting relation back doctrine, by

which pleadings may be amended if same operative

facts control). Moreover, the arbitrator allowed mutual

amendments to the parties’ claims, expressly conditioned on closure of discovery. Accordingly, the defendants cannot demonstrate substantial prejudice

resulting in fundamental unfairness.

For those reasons, the arbitration proceedings culminated in a hearing that was not fundamentally unfair,

during which both sides had an adequate opportunity

to present their evidence and arguments. We therefore

conclude that the court did not err in granting the plaintiffs’ motion to confirm the arbitration award and denying the defendants’ motion to vacate it for arbitral

misconduct under 9 U.S.C. § 10 (a) (3).

III

Finally, the defendants claim that the court should

have vacated the arbitration award pursuant to 9 U.S.C.

§ 10 (a) (4) because the arbitrator exceeded her authority. Specifically, the defendants argue that the arbitrator

lacked the authority (1) to render an award against

Imbruce individually, and (2) to apportion costs and

impose attorney’s fees. We disagree.

A

The defendants first contend that the arbitrator

lacked the authority to enter an award against Imbruce

individually. This argument is close to frivolous. In its

memorandum of decision, the trial court found the following: ‘‘[I]n [their] original motion to stay this litigation

in favor of arbitration the defendants, including

Imbruce, asserted and represented to the court ‘defendants are ready and willing to proceed with the arbitration of the plaintiffs’ claims.’ . . . In the demand for

arbitration Imbruce is named as a claimant and in his

amended demand he also includes himself as a claimant. At the time he made the [m]otion to [s]tay and

asserted that he was willing to proceed with the arbitration of [the] plaintiffs’ claims, he knew the plaintiffs

were asserting claims against him individually based

upon the filed complaint. At no time did he expressly

or impliedly suggest that the arbitration should exclude

claims against him individually. In fact, the filings

express the opposite position.

‘‘While he voluntarily submitted his claims to arbitration and by his representations expressed that he was

willing to arbitrate the plaintiffs’ claims, he did not

assert in any way lack of jurisdiction of the arbitrator

to hear the plaintiffs’ counterclaims against him personally, as he would have been required to do under the
rules of the American Arbitration Association and, particularly, Rule 7c.’’

We turn now to applicable legal standards. ‘‘[A] party

cannot be required to submit to arbitration any dispute

which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement

of disputes by the parties through the machinery of

arbitration, the judicial inquiry . . . must be strictly

confined to the question [of] whether the reluctant party

did agree to arbitrate . . . or did agree to give the arbitrator power to make the award he made.’’ United Steelworkers of America v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 582, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960).

There are ‘‘five theories for binding nonsignatories to

arbitration agreements: 1) incorporation by reference;

2) assumption; 3) agency; 4) veil-piercing/alter ego; and

5) estoppel.’’ Thomson-CSF, S.A. v. American Arbitration Assn., 64 F.3d 773, 776 (2d Cir. 1995).

Although the plaintiffs claim that all five theories

are implicated here, they focus their argument on the

assumption and alter ego theories. Because we agree

that Imbruce assumed the obligation to arbitrate, we

do not consider the other theories. ‘‘In the absence of

a signature, a party may be bound by an arbitration

clause if its subsequent conduct indicates that it is

assuming the obligation to arbitrate.’’ Id., 777, citing

Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100,

1105 (2d Cir.), cert. denied, 502 U.S. 910, 112 S. Ct. 305,

116 L. Ed. 2d 248 (1991). Here, as the facts previously

indicated, Imbruce’s conduct belies his claim that he

is not bound by the arbitration. The demand for arbitration included Imbruce as a named party, and he repeatedly represented himself both at the trial court and in

the arbitration as involved in and bound by the arbitration. Despite being on notice that the plaintiffs were

asserting claims against him, Imbruce did not argue

that he was not a party until after the arbitrator rendered

her award. Imbruce therefore assumed the obligation

to arbitrate and is responsible for the award rendered

against him.

B

The defendants next contend that the arbitrator

exceeded her authority under the arbitration

agreements by apportioning costs and imposing attorney’s fees. Specifically, the defendants argue that the

parties agreed only to arbitrate the partnership

agreements, which were silent as to costs and fees, and

that the plaintiffs made no claim for costs and fees

under the release agreement. This also borders on

the frivolous.

The trial court found that both parties ‘‘asserted

claims for fees and costs that they incurred.’’ ‘‘If both

parties sought attorney’s fees . . . then both parties

agreed pro tanto to submit that issue to arbitration, and
the arbitrators had jurisdiction to consider that issue

and to award them.’’ U.S. Offshore, Inc. v. Seabulk Offshore, Ltd., 753 F. Supp. 86, 92 (S.D.N.Y. 1990); see also

Commercial Arbitration Rules of the American Arbitration Association Rule R-47 (d) (‘‘[t]he award of the

arbitrator(s) may include . . . an award of attorneys’

fees if all parties have requested such an award or it

is authorized by law or their arbitration agreement’’).10

Moreover, once bound to arbitration, ‘‘[a] party seeking relief under [§ 10 (a) (4)] bears a heavy burden. It

is not enough . . . to show that the [arbitrator] committed an error—or even a serious error. . . . Because

the parties bargained for the arbitrator’s construction

of their agreement, an arbitral decision even arguably

construing or applying the contract must stand, regardless of a court’s view of its (de)merits . . . . Only if the

arbitrator act[s] outside the scope of his contractually

delegated authority . . . may a court overturn his

determination. . . . So the sole question for [the appellate court] is whether the arbitrator (even arguably)

interpreted the parties’ contract, not whether he got its

meaning right or wrong.’’ (Citations omitted; internal

quotation marks omitted.) Oxford Health Plans, LLC

v. Sutter, U.S. , 133 S. Ct. 2064, 2068, 186 L. Ed.

2d 113 (2013). Under this standard, we do not disturb

an arbitrator’s interpretation of her authority over an

unrestricted submission. Here, the submission contained no express restrictions as to these issues, and

we note that the parties agreed to expand the scope

of the arbitration beyond the original agreements. See

footnote 5 of this opinion. Accordingly, the arbitrator’s

interpretation of the scope of the arbitration

agreements, including whether she was empowered to

award attorney’s fees and costs, must stand.

In conclusion, therefore, the court did not err in granting the plaintiffs’ application to confirm the arbitration

award and denying the defendants’ application to vacate

it. The defendants cannot demonstrate that the arbitrator’s conduct amounted either to evident partiality, misconduct or an excess of authority. See 9 U.S.C. § 10 (a)

(2012). Where none of these claimed statutory grounds

for vacatur exists, the arbitration act requires a

reviewing court to confirm the arbitration award. The

court properly did so.

The judgments are affirmed.

In this opinion the other judges concurred.

1 The defendants-appellants are: Gregory Imbruce; Giddings Investments,

LLC; Giddings Genpar, LLC; Hunton Oil Genpar, LLC; ASYM Capital III,

LLC; Glenrose Holdings, LLC, and ASYM Energy Investments, LLC. The

defendants were the claimants in the underlying arbitration. For the sake

of clarity, the parties will be identified by their respective posture in the

trial court, and will be referred to collectively as the defendants.

2 The plaintiffs-appellees are: Charles Henry III; Ahmed Ammar; John P.

Vaile; John P. Otieno; Bradford Higgins; William Mahoney; Edward M. Conrads; William F. Conrads; SOSVentures, LLC; Giddings Oil & Gas, L.P.; Hunton Oil Partners, L.P.; and ASYM Energy Fund III, L.P.

3 This appeal was taken from three consolidated cases: Henry v. Imbruce,
Superior Court, judicial district of Stamford, Complex Litigation Docket,

Docket Nos. X08-CV-12-6014987-S and X08-CV-12-5013927-S; and Starboard

Resources, Inc. v. Henry, Superior Court, judicial district of Stamford, Complex Litigation Docket, Docket No. X08-CV-12-6015112-S.

4 The plaintiffs filed their second amended complaint on July 31, 2012,

and a third amended complaint by consent on June 6, 2013. These pleadings,

however, are superseded for the purposes of this appeal by the plaintiffs’

counterclaims as respondents in the arbitration.

5 The Hunton, L.P., partnership agreement contains no arbitration clause.

The ASYM, L.P., and Giddings, L.P., agreements contain the following language: ‘‘Any dispute, controversy or claim (‘Dispute’) arising out of, relating

to or in connection with this Agreement, including any question regarding

its existence, validity or termination, or regarding a breach hereof which

cannot be resolved by good faith discussions among the Partners and/or

Partnership within thirty (30) days (or such longer period as may be agreed

by such Partners and/or Partnership) shall be referred by any Party to,

and shall finally settled by, arbitration under and in accordance with the

Commercial Arbitration Rules of the American Arbitration Association (‘the

Rules’).’’ The mutual release agreement between one of the plaintiffs, SOSVentures, LLC, and Imbruce contained a similarly broad clause (with some

restrictions for equitable relief under the release agreement but also allowing

for the recovery of costs and fees). The parties later agreed to submit the

Hunton claims to arbitration as well.

6

‘‘Section 1 of the [arbitration] act defines ‘commerce’ to include ‘commerce among the several States . . . .’ 9 U.S.C. § 1. The United States

Supreme Court has construed § 1 broadly. The court has explained that

‘involving commerce’ is the equivalent of ‘affecting commerce,’ and accordingly, the term ‘signals an intent to exercise Congress’ commerce power to

the full.’ . . . Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277,

115 S. Ct. 834, 130 L. Ed. 2d 753 (1995).’’ Hottle v. BDO Seidman, LLP, 74

Conn. App. 271, 276, 811 A.2d 745 (2002), aff’d, 268 Conn. 694, 846 A.2d

862 (2004).

In this case, speculators in California, Connecticut, Illinois and Texas

invested capital in Delaware companies (headquartered in Connecticut and

Texas) that exploit mineral rights in Texas and Oklahoma.

7 Concomitant with those statutory provisions, the United States Court

of Appeals for the Second Circuit has acknowledged an additional ground

for vacatur, the so-called ‘‘manifest disregard’’ standard. It is implicated

where the award ‘‘was rendered in manifest disregard of the law,’’ or where

the award was rendered in manifest disregard of ‘‘the terms of the [parties’

relevant] agreement[s].’’ (Internal quotation marks omitted.) Schwartz v.

Merrill Lynch & Co., 665 F.3d 444, 451–52 (2d Cir. 2011). Although the

defendants made a claim of manifest disregard below, they make no such

claim on appeal.

8 See Votre v. Maisano-Votre, Superior Court, judicial district of AnsoniaMilford, Docket No. FA-12-4017418-S, 2015 WL 2473188, *9 (May 4, 2015)

(‘‘In summation, what appears to have occurred here is that the arbitrator

. . . turned the arbitration hearing into a mediation event and used procedures implemented ad hoc to complete the proceeding. . . . The receipt

and considerable reliance upon evidence not offered into the record is,

as elsewhere, particularly troubling to the court. Consequently, the court

believes that the motion to vacate should be granted under [General Statutes]

§ 52-418 [a] [3].’’).

Section 52-418 (a) (3) provides, in relevant part: ‘‘Upon the application

of any party to an arbitration, the superior court . . . shall make an order

vacating the award if it finds any of the following defects . . . if the arbitrators have been 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 action by which the rights of

any party have been prejudiced . . . .’’

9

‘‘[Section] 52-418 (a) (3) essentially tracks the language of the federal

statute governing arbitral misconduct.’’ O & G/O’Connell Joint Venture v.

Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 150 n.12, 523 A.2d

1271 (1987). See footnote 8 of this opinion.

10 We note also that CUTPA expressly authorizes attorney’s fees. See

General Statutes § 42-110g (d) (‘‘[i]n any action brought by a person under

this section, the court may award . . . costs and reasonable attorneys’

fees . . . .’’).