Although we have not yet decided what standard of review to apply in cases of this sort, see First Options of Chicago, Inc. v. Kaplan , No. Petitioners did not raise the argument in their petition for certiorari or in their opening brief. The New York Court of Appeals rested its holding on the principle that punitive damages are exemplary social remedies intended to punish, rather than to compensate. Because the power to punish can rest only in the hands of the State, the Court found that private arbitrators could not wield the authority to impose such damages. Shouting, profanity, or gratuitous remarks should be stopped.
Some attorneys think that the more often a statement is made, the truer it becomes.
The Chair, however, should discourage needless repetition. Immediately after the close of the hearing, the arbitrators usually remain in the hearing room either to begin deliberations or set a date for deliberation. Unlike jurors, the panel members are not restricted from discussing the case among themselves. It is telling that petitioners did not even claim until their reply brief that Paragraph 13 expressed an intent to reserve to arbitrators the authority to award punitive damages.