Questar Capital Corp. v. Gorter (909 F. Supp. 2d 789, 2012)

United States District Court for the Western District of Kentucky 2012-11-15

Arbitration

Citations

Full opinion text

MEMORANDUM OPINION

THOMAS B. RUSSELL, Senior District Judge.

This matter is before- the Court upon Petitioner Questar Capital Corporation’s “Petition to Vacate Arbitration Award,” (Docket No. 1); Respondent Thomas J. Gorter’s “Combined Motion to Dismiss and/or for Summary Judgment on Questar Capital Corporation’s Petition to Vacate and Motion to Confirm Arbitration Award,” (Docket No. 11); Respondent Gorter’s “Motion to Dismiss Questar Capital Corporation’s Improper ‘Petition’ to Vacate Arbitration Award,” (Docket No. 12); and Petitioner Questar’s “Motion to Vacate,” (Docket No. 23). Because the several motions in this case present varying arguments but are necessarily interrelated, the Court will address the parties’ respective arguments collectively in the Opinion that follows,

TABLE OF CONTENTS

BACKGROUND................................................................796

STANDARD....................................................................798

DISCUSSION..................................................................799

I. Respondent Gorter’s “Motion to Dismiss Questar Capital Corporation’s Improper ‘Petition’ to Vacate Arbitration Award,” (Docket No. 12).....799

A. Seeking Vacatur of the Arbitration Award by Petition................800

1. The Sixth Circuit and Its Lower Courts Have Used the Titles “Petition” and “Motion” Interchangeably in This Context Without Concern for the Precise Nomenclature or Styling of an Application for Vacatur...................................800

2. Courts in Other Circuits Have Construed Filings Not Titled “Motion” as Motions to Vacate for Purposes of the FAA......801

3. Other Courts’ Reasoning For Requiring That a Filing Be Styled as a “Motion” Is Distinguishable From the Circumstances This Case....................................802

4. In Its Discretion, the Court Will Treat Questar’s Petition as a Motion to Vacate for Purposes of the FAA.....................804

B. Timeliness of Questar’s Petition to Vacate ..........................804

C. Local Rule 7.1(a)................................................807

II. Respondent Gorter’s “Combined Motion to Dismiss and/or For Summary Judgment on Questar Capital Corporation’s Petition to Vacate and Motion to Confirm Arbitration Award”.....................808

III. Motions to Confirm and Vacate........................................809

A. Evident Partiality...............................................810

1. Questar waived its objection to Chairman Stanton’s partiality by failing to raise this objection at the arbitration hearing......811

2. Even if Questar did not waive its objection to Chairman Stanton, the facts do not support a finding of evident partiality..................................................815

B. Refusing to Hear Evidence Pertinent and Material to the Controversy..................................................816

1. Questar was not denied a fundamentally fair hearing in relation to the testimony of Jason Hargadon...................817

2. Questar was not denied a fundamentally fair hearing in regard to its request that the Panel subpoena more than 50 of Gorter’s former clients......................................820

C. Arbitrators Exceeding or So Imperfectly Executing Their Powers.....821

D. Manifest Disregard for the Law...................................825

CONCLUSION.................................................................827

BACKGROUND

The present action began in this Court upon Questar Capital Corporation’s (Ques-tar) Petition to Vacate Arbitration Award, (Docket No. 1.) On January 13, 2012, a Financial Industry Regulatory Authority (FINRA) arbitration panel (Panel) issued an award in favor of Thomas J. Gorter (Gorter) following arbitration proceedings that began on August 16, 2011. After some 31 hearing sessions, the arbitration proceedings closed on December 13, 2011. Questar filed its Petition to Vacate on February 10, 2012, (Docket No. 1), to which Gorter responded with his Combined Motion to Dismiss and/or for Summary Judgment and Motion to Confirm Arbitration Award, (Docket No. 11), and his Motion to Dismiss Questar’s Improper “Petition” to Vacate Arbitration Award, (Docket No. 12), both on March 5, 2012. Questar responded to both on March 29, (Docket Nos. 22; 23), and Gorter replied on April 13, (Docket Nos. 26; 27). Questar also filed its Motion to Vacate with accompanying Memorandum of Law on March 29, 2012. (Docket No. 23.) Gorter responded in opposition to Questar’s Motion to Vacate, (Docket No. 28), and Questar replied, (Docket No. 45). The Court then granted Gorter leave to file a Sur-Reply, which he did on May 29, (Docket No. 52), and also granted Questar leave to file a Response to Sur-Reply, which it did on June 8, 2012, (Docket No. 58).

Throughout their many filings in this matter, the parties continue to dispute the facts of this case and to challenge one another’s characterizations of those facts. This is in no small part due to the fact that the Panel did not issue findings of fact, nor did it provide an explained decision or opinion along with its award. At this juncture, much of the contested factual matter is not particularly relevant or necessary given the standard of review for an arbitration award. Therefore, the following summary is intended for background purposes only and represents no findings of fact by this Court.

Questar is a brokerage firm currently based in Minneapolis, Minnesota, and is a fully owned subsidiary of Allianz Life. (Docket No. 11-1, at 1.) Questar is registered with the Securities and Exchange Commission and in 52 states and territories. (Docket No. 11-1, at 1.) Questar is also a member of FINRA. (Docket No. 11-1, at 1.) Gorter entered into a “Registered Representative’s Agreement” (RRA) with Questar on May 21, 2001. (Docket No. 1-1.) Then in April 2006, Gorter also entered into an “Investment Advisor Representative Agreement” (IAR Agreement) with Questar Asset Management (QAM). (Docket No. 23^4.)

In September 2007, the Kentucky Department of Financial Institutions (KDFI) conducted a routine inspection of the Ques-tar branch office where Gorter worked. (Docket Nos. 11-1, at 2; 23-2, at 2.) As a result of that investigation, KDFI issued a Statement of Findings indicating that Gorter was acting as a “registered investment advisor” but was not registered as such in Kentucky. (See Docket Nos. 11-1, at 2; 23-2, at 2.) After the KDFI investigation, it became necessary to transfer Gorter’s clients to his supervisor, a registered investment advisor at QAM. (See Docket Nos. 11-1, at 2-3; 23-2, at 2.) According to Questar, “[djuring the transfer, Gorter altered paperwork on client files.” (Docket No. 23-2, at 2.) Gorter avers that on January 24, 2008, he resigned from Questar via registered mail, which he argues became effective upon mailing. (Docket No. 11-1, at 4.) Questar, on the other hand, maintains that it terminated Gorter on January 25, 2008, the following day. (Docket No. 23-2, at 2.) Consistent with this position, Questar reported Gorter had been terminated and its reasons for terminating him on a Uniform Termination Notice for Securities Industry Registration, commonly known as a “Form U-5.” (Docket Nos. 11-1, at 4; 23-2, at 2-3.)

Gorter filed a Statement of Claim against Questar with FINRA in September 2008, alleging breach of contract, negligence, defamation, and tortious interference, and seeking $2,000,000 in actual/compensatory damages and $1,000,000 in exemplary/ punitive damages. (Docket Nos. 1-3, at 2; 11-1, at 5; 22-17.) Ques-tar subsequently filed a Statement of Answer and Counterclaim in January 2009, alleging breach of contract and seeking indemnification as well as $10,054,668.53 in actual/compensatory damages. (See Docket No. 1-3, at 1, 3.) Questar filed its Pre-Hearing Brief before the Panel in May 2011, and Gorter his in June 2011. (Docket No. 1-3, at 2.) The parties thereafter filed a series of Bench Briefs of Relevant Law as well as various motions, including motions in limine, to strike, to compel, and for sanctions, during October and November 2011. (See Docket No. 1-3, at 2.) The Panel held 31 hearings over 15 days beginning in August and concluding in December 2011. (See Docket No. I- 3, at 6.) The Panel heard testimony from some 18 witnesses, several of which were expert witnesses, and the parties submitted hundreds of exhibits for the Panel’s consideration. (See Docket No. II- 1, at 5.)

The three-arbitrator Panel issues its unanimous award in favor of Gorter in January 2012, exactly one month after the close of the arbitration proceedings. (Docket Nos. 1-3, at 4, 7.) In that award, the Panel awarded Gorter $3,251,907 in compensatory damages, with interest beginning December 14, 2011, and $49,241 in costs. (Docket No. 10-3, at 4-5.) The Panel additionally denied Gorter’s request for expungement, Questar’s Counterclaim, and any other relief sought by either party, which included punitive damages, attorneys’ fees, and sanctions. (Docket No. 1-3, at 5.) Then on February 10, 2012, the instant matter began before this Court upon Questar’s Petition to Vacate.

STANDARD

The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, expresses the federal policy favoring enforcement of arbitration awards. See generally Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). To encourage parties to agree to arbitration, the FAA ensures that “arbitration awards are both fair and final.” Solvay Pharm., Inc. v. Duramed Pharm., Inc., 442 F.3d 471, 475 (6th Cir.2006). The Act promotes finality “by substantially limiting the occasions for judicial review,” id., and expressing a “presumption that arbitration awards will be confirmed.” Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308, 328 (6th Cir.1998). Under the FAA, courts may vacate an arbitration award under the four express statutory grounds in § 10(a)(l)-(4). And, though accompanied by some uncertainty, see Hall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), the Sixth Circuit also recognizes that judicial intervention may be appropriate where arbitrators act with “manifest disregard for the law,” see, e.g., Grain v. Trinity Health, 551 F.3d 374, 380 (6th Cir.2008), cert. denied, 558 U.S. 820, 130 S.Ct. 96, 175 L.Ed.2d 30 (2009); Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed. Appx. 415 (6th Cir.2008), cert. denied, 558 U.S. 819, 130 S.Ct. 81, 175 L.Ed.2d 28 (2009).

In light of the policies underlying the FAA, a party seeking vacatur of an arbitration award “must clear a high hurdle.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 130 S.Ct. 1758, 1767, 176 L.Ed.2d 605 (2010). “When courts are called on to review an arbitrator’s decision, the review is very narrow; [it is] one of the narrowest standards of judicial review in all of American jurisprudence.” Uhl v. Komatsu Forklift Co., 512 F.3d 294, 305 (6th Cir.2008) (alteration in original) (quoting Nationwide Mut. Ins. Co. v. Home Ins. Co., 429 F.3d 640, 643 (6th Cir.2005)); see also NCR Corp. v. Sac-Co., Inc., 43 F.3d 1076, 1079 (6th Cir. 1995) (noting that a court’s review of an arbitration award “is generally extremely narrow”). Thus, as the U.S. Supreme Court has long held, “the courts play only a limited role when asked to review the decision of an arbitrator,” and are not authorized to reconsider the merits of an award. United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Stated another way, even “the arbitrator’s ‘improvident, even silly, factfinding’ does not provide a basis for a reviewing court to refuse to enforce an award.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (quoting Misco, 484 U.S. at 39, 108 S.Ct. 364). Accordingly, as the Sixth Circuit has succinctly instructed, “[Cjourts must refrain from reversing an arbitrator simply because the court disagrees with the result or believes the arbitrator made a serious legal or factual error.” Solvay, 442 F.3d at 476 (alteration in original) (emphasis omitted) (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). In essence, “if a court can find any line of argument that is legally plausible and supports the award then it must be confirmed.” Id. (quoting Merrill Lynch, Pierce, Fenner & Smith v. Jaros, 70 F.3d 418, 421 (6th Cir.1995)).

DISCUSSION

The FAA provides: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 6 of the FAA, titled “Application heard as motion,” goes on: “Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.” And in § 10, which addresses vacation of arbitrators’ awards, the statute lays out four distinct cases in which a court “may make an order vacating the award upon the application of any party to the arbitration.” § 10(a). The Court will begin its analysis by addressing Gorter’s Motion to Dismiss Questar’s Improper “Petition” to Vacate, then proceed to Gorter’s Combined Motion to Dismiss and/or for Summary Judgment, and finally conclude by addressing the crux of this matter: whether to confirm or vacate the arbitration award.

I. Respondent Gorter’s “Motion to Dismiss Questar Capital Corporation’s Improper ‘Petition’ to Vacate Arbitration Award”

The Court will begin by addressing Gorter’s “Motion to Dismiss Questar Capital Corporation’s Improper ‘Petition’ to Vacate Arbitration Award.” (Docket No. 12.) In that Motion, Gorter divides his argument along two lines: (1) whether Questar’s “Petition to Vacate” was proper under the FAA, and (2) whether Questar timely sought relief under the governing time limitation. The Court will divide its discussion the same.

A. Seeking Vacatur of the Arbitration Award by Petition

Gorter argues that Questar’s “Petition to Vacate” is not the proper vehicle for seeking relief under the FAA. (Docket No. 12-1, at 2-4.) As his basis for this argument, he begins by quoting the Eastern District of Pennsylvania’s decision in Interior Finish Contractors Ass’n of Del. Valley v. Drywall Finishers Local Union No. 1955, in which that court stated: “The statutes and rules do not permit a party to initiate a challenge to an arbitration award by filing a complaint or an ‘Application.’ ” 625 F.Supp. 1233, 1240 (E.D.Pa.1985). Gorter then proceeds to discuss the Eleventh Circuit’s holding in O.R. Sec., Inc. v. Prof l Planning Assocs., Inc., in which the appellate court addressed the interplay among § 6 of the FAA and Rules 7(b), 8(a), and 81(a)(3) of the Federal Rules of Civil Procedure in the context of the proper procedure for seeking vacatur of an arbitration award. See 857 F.2d 742, 744-46 (11th Cir.1988). Although Gorter’s argument is well-taken, after an extensive review of the decisions of the Sixth Circuit and the lower courts therein, as well as of other federal courts around the country, the Court cannot conclude that whatever procedural misstep Questar made by filing a “petition” warrants dismissal. The Court will now discuss its reasons for reaching this conclusion.

1. The Sixth Circuit and Its Lower Courts Have Used the Titles “Petition” and “Motion” Interchangeably in This Context Without Concern for the Precise Nomenclature or Styling of an Application for Vacatur.

After surveying the case law on this issue, the Court finds no controlling precedent in the Sixth Circuit holding that an application for vacating an arbitration award must be titled “motion” or else be dismissed. Further, despite the technical differences between “petitions” and “motions,” this Circuit has routinely used those terms indistinguishably in cases arising under the FAA. For example, in Decker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., the Sixth Circuit employed the two terms interchangeably in discussing the proper procedure for challenging an arbitration award. See 205 F.3d 906, 909-10 (6th Cir.2000). There, after arbitration had concluded, the plaintiff filed a complaint in state court asserting various common law tort and contract claims related to the arbitration; however, she did not seek vacatur of the arbitration award under the FAA. Id. at 908. After being removed to federal court, the defendant moved for dismissal, arguing that the plaintiffs complaint constituted a collateral attack on the arbitration award. The district court agreed and granted dismissal. Id. On appeal, the Sixth Circuit began its analysis by discussing the relevant provisions of the FAA, stating that in the four cases enumerated by § 10(a), “A party may file a petition to vacate an arbitration award.” Id. at 909 (emphasis added). Then, in the immediately subsequent paragraphs, the court went on to reason that because the plaintiff chose to collaterally attack the arbitration award, she “should have filed a motion for vacatur under § 10 of the Act.” Id. at 910 (emphasis added). Thus, in Decker the Sixth Circuit made no effort to distinguish between a “petition” and a “motion” for purposes of seeking vacatur under the FAA.

Decisions by both this District and other district courts in this Circuit have similarly shown little concern over the technical distinction between petitions and motions in this context. For example, in Warren v. Tacher, this Court considered a “petition to confirm in part and to vacate in part” an arbitration award. 114 F.Supp.2d 600, 600 (2000) (emphasis added). In addressing whether the petition was time-barred under the FAA, the Court stated: “9 U.S.C. § 12 requires parties to file a petition to vacate an arbitration award within 3 months of the final award.” Id. at 602 (emphasis added); accord Fischer v. MBNA Am. Bank, N.A., 2005 WL 1168388, passim (W.D.Ky. May 17, 2005) (discussing “petitions” to vacate under § 10). Similarly, in Myles v. Wolpoff & Abramson, LLP, the Eastern District of Michigan referenced Decker, stating: “A party may file a petition to vacate or modify an award ... under § 10(a) of the FAA.” 2008 WL 126620, at *3 (E.D.Mich. Jan. 14, 2008) (citing Decker, 205 F.3d at 909). Other courts in this circuit have likewise applied § 10 of the FAA to filings not titled “motions.” E.g., Diversified Emp. Solutions, Inc. v. Pawloski, 790 F.Supp.2d 655, 656 (N.D.Ohio 2011) (applying § 10(a) to an “Application to Vacate Arbitration Award”); First Family Fin. Servs., Inc. v. Mollett, 2006 WL 695258, at *2 (E.D.Ky. Mar. 17, 2006) (applying the FAA to a “petition to vacate”); Conrad Trust v. Morrison, 2005 WL 2417661 (W.D.Mich. Sept. 30, 2005) (applying the FAA to “petitions” to confirm and to vacate, and using the terms “motion” and “petition” interchangeably throughout); cf. Wells Fargo Advisors, LLC v. Widener, 2011 WL 6101626, at *1-3 (S.D.Ohio Nov. 9, 2011) (granting petitioner’s “Application to Summarily Confirm Arbitration Award” under § 9); Mercurio v. Am. Express Centurion, 363 F.Supp.2d 936, 936 (N.D.Ohio 2005) (applying § 9 of the FAA to a “Petition to Confirm Arbitration Award”).

Accordingly, the Court finds no controlling precedent to suggest that a filing styled “Petition to Vacate” must be dismissed because of its failure to conform with particulars §§ 6 and 10 of the FAA.

2. Courts in Other Circuits Have Construed Filings Not Titled “Motion” as Motions to Vacate for Purposes of the FAA.

The Court’s survey of this issue has revealed a number of cases where courts, in their discretion, have treated variously styled filings as motions to vacate for purposes of the FAA. For example, in Health Servs. Mgmt. Corp. v. Hughes, the Seventh Circuit showed no reservation in treating an “Application to Vacate the Arbitration Award” as a § 10 motion to vacate. 975 F.2d 1253, 1255 (7th Cir.1992). There, the petitioner filed an “Application to Vacate” laying out the reasons why the award should be vacated, but did not file an accompanying memorandum of law. Id. at 1256. On appeal, in addressing whether § 6 of the FAA preempted Fed. R.Civ.P. 16, the Seventh Circuit concluded: “Section 6 preempts the applicability of the Federal Rules and an Application to Vacate is to be treated procedurally in the manner of a motion.” Id. at 1258.

Similarly, in Gimbel v. UBS Fin. Servs., Inc., the Northern District of Illinois ruled that the caption “Petition to Vacate Arbitration Award” was not fatal to petitioners seeking vacatur under the FAA. 2009 WL 1904554, at *1, 6-7 (N.D.Ill. May 28, 2009). The petition filed in Gimbel stated the petitioners’ factual bases for seeking vacatur under § 10(a) but included no other evidence. Id. at *4, 7. The respondents, relying on Kruse v. Sands Bros. & Co., 226 F.Supp.2d 484 (S.D.N.Y.2002), argued that the petition must be dismissed because it was styled as a “petition” rather than a “motion,” and because the petition was not a motion in substance as required by § 6. Id. at *6. The court found, however, that the petition “was, in substance, far closer to a motion,” concluding:

Fortunately for the Petitioners, the fact that their Petition came before this Court as a petition, rather than as a motion, to vacate the arbitration award, does not affect the disposition of this case. “The liberality of the ... Federal Rules is such that an erroneous nomenclature does not prevent the court from recognizing the true nature of a motion.” Accordingly, I accept the Petition and will treat it [a]s a motion to vacate.

Id. at *7 (internal citations and quotation marks omitted).

Furthermore, a number of other courts around the country have, in the context of the FAA, either used the terms “petition” and “motion” interchangeably or considered filings not styled as “motions” without issue. See, e.g., Greenberg v. Bear, Stearns & Co., 220 F.3d 22, passim (2d Cir.2000) (using the phrases “petition to vacate” and “motion to vacate” interchangeably in the context of § 10 of the FAA); Hoffman Printing, Inc. v. Graphic Commc’ns, Int’l Union, Local 261, 912 F.2d 608, 610-12 (2d Cir.1990) (applying §§ 9, 10, and 12 to petitioners’ “petition to vacate the arbitration award”); Sonic Auto., Inc. v. Price, 2011 WL 3564884, at *1 (W.D.N.C. Aug. 12, 2011) (granting “Petition to Vacate the Arbitration Award” under § 10); Francis v. Landstar Sys. Holdings, Inc., 2009 WL 4350250, at *1-2, 4 (M.D.Fla. Nov. 25, 2009) (using the phrases “petition to vacate” and “motion to vacate” indistinguishably in the context of § 10); Steiner v. Glenn, 2002 WL 31133197, at *1 n. 1 (N.D.Ill. Sept. 25, 2002) (“[Petitioner] filed a ‘complaint’ instead of a ‘motion,’ however, the court treats the complaint as a motion to vacate the arbitration .award in accordance to 9 U.S.C. §§ 6, 10(a).”); Farmers Nat’l Bank of Geneseo v. Van Kampen Merrit, Inc., 1992 WL 80516, at *1 (N.D.Ill. April 13, 1992) (“The fact that this motion came before the district court on the application (rather than the motion) of [petitioner] to vacate the arbitration award ... does not affect our disposition of this ease.”); cf. Lobaito v. Chase Bank, 2012 WL 3104926, at *1, 4-5 (S.D.N.Y. July 31, 2012) (construing a “Complaint” filed by a pro se litigant, which the respondent challenged as not even arguing that the award should be vacated, as a motion to vacate for purposes of § 10); Technologists, Inc. v. MIR’s Ltd., 725 F.Supp.2d 120, 121 (D.D.C.2010) (holding “Petition to Vacate Arbitration Award” and “Cross-Petition to Confirm Arbitration Award” in abeyance pending further briefing on an unrelated procedural issue).

3. Other Courts’ Reasoning For Requiring That a Filing Be Styled as a “Motion” Is Distinguishable From the Circumstances of This Case.

The reasoning upon which some courts have required that a prayer to vacate an arbitration award be styled specifically as a motion does not support dismissing Questar’s Petition here. A review of the decisions by these courts reveals the principal concern underlying this rationale is the distinction between motions and complaints. For example, in Interior Finish, the court found that the FAA “does not permit a party to initiate a challenge to an arbitration award by filing a complaint or an ‘Application.’” 625 F.Supp. at 1240. The petitioner there filed four separate documents: an “Application for Vacation of an Arbitration Award,” a Complaint, a proposed “Order to Show Cause,” and a proposed “Order Vacating the Arbitrator’s Award.” Id. at 1238. The “Application,” the court reasoned, was not filed as a “motion” as it should have been and was accompanied by “confusing, unnecessary documents, the Complaint and the ‘Order to Show Cause.’ ” Id. at 1240. The court found after reviewing the record that this mélange of filings sufficiently confused the respondent’s counsel as to how and when to respond to each of the various filings; therefore, an entry of default against the respondent was inappropriate. Id.

Taking a similar approach, the Eleventh Circuit in O.R. Secs., Inc. held that the proper procedure for seeking vacatur of an arbitration award was to file a “Motion to Vacate” in the district court. 857 F.2d at 746. There, the petitioner filed a “Complaint and Application.” Id. at 744. The petitioner argued that under the rules of notice pleading, Fed.R.Civ.P. 8(a), it had sufficiently stated a claim for vacating the arbitration award. Id. at 745. The Eleventh Circuit disagreed, reasoning:

If, as [the petitioner] contends, the application to vacate the award may be brought in the form of a complaint, then the burden of dismissing the complaint would be on the party defending the arbitration award. The defending party would be forced to show that the movant could not prove any facts that would entitle him to relief from the arbitration award. If the defending party did not prevail on its motion to dismiss, the proceeding to vacate the arbitration award would develop into full scale litigation, with the attendant discovery, motions, and perhaps trial. This is the procedure which [the petitioner] argues the district court should have applied.

We disagree. It is well-established that “[t]he purpose of the Federal Arbitration Act was to relieve the congestion in the courts and to provide parties with an alternative method for dispute resolution that would be speedier and less costly than litigation.” The policy of expedited judicial action expressed in section 6 of the Federal Arbitration Act, ■ 9 U.S.C. § 6, would not be served by permitting parties who have lost in the arbitration process to file a new suit in federal court.

Id. at 745-46 (internal citations omitted). It thus becomes clear the principal concern of courts that have required a “motion” is to distinguish it from a “complaint,” because a complaint signifies the commencement of litigation, which the FAA does not intend to accompany the courts’ limited review of arbitral awards.

A review of these decisions informs the conclusion that the critical distinction is whether the filing seeking vacatur presents itself as a pleading (i.e., a complaint) or as a motion. The FAA clearly intends for the proceeding to confirm or vacate an arbitration award to be summary. See 9 U.S.C. § 9; see generally 1 Jay E. Grenig, Alternative Dispute Resolution [Alt. Dis. Resol.] § 24:1 (3d ed.2012). Accordingly, Fed.R.Civ.P. 81(a)(6)(B) limits the applicability of the Rules where the FAA provides otherwise. Where § 6 of the FAA instructs that applications shall be made and heard in the manner of motions, the clear intent was to remove confirmation and vacatur procedures brought under the FAA from the ambit of pleadings and their attendant rules of civil procedure. The proceedings therefore would not be subject to the rules that apply specifically to pleadings, such as Rules 8 and 12, nor would the rules of discovery apply. Thus, by requiring applications in the form of motions, the, intended summary proceeding to confirm or vacate an award would remain just that, summary. Further, the burden would remain on the petitioner seeking vacatur to prove that the arbitration award was improper and not shift to the respondent as it would on a defendant filing a motion to dismiss a complaint or for summary judgment. See generally 1 Alt. Disp. Resol. § 24:20.

Therefore, for the reasons discussed more fully below in Part I.A.4, the Court is satisfied that the underlying reasoning why some courts have adhered 'to a strict styled-as-a-motion requirement does not warrant dismissal of Questar’s Petition here.

4. In Its Discretion, the Court Will Treat Questar’s Petition as a Motion to Vacate for Purposes of the FAA.

Questar’s Petition to Vacate consists of some 60-plus paragraphs over 17 pages. (See Docket No. 1.) Attached are exhibits supporting the factual assertions Questar makes. (See Docket Nos. 1-1 to -4.) On its “Civil Cover Sheet,” Questar’s brief description of the cause of action reads, “Action to vacate an arbitration award,” and cites 9 U.S.C. § 10. (Docket No. 1-4, at 1.) The Petition begins, in its first full sentence, “This is an action to vacate the final arbitration award issued by a FINRA arbitration panel ... on January 13, 2012 ____” (Docket No. 1, at 1.) In the body of its Petition, Questar states in detail the background facts of this case with reference to the arbitration record and attached exhibits. (See Docket No. 1, at 2-8.) The Petition also states the specific factual bases upon which relief is sought under § 10(a). (See Docket No. 1, at 1-2, 11-17.)

Like the “Petition to Vacate Arbitration Award” in' Gimbel, Questar’s Petition lays out a coherent, statute- and fact-based argument for vacatur. See 2009 WL 1904554, at *4, 7. Questar’s Petition is wholly distinguishable from the “Counter-Petition to Vacate” in Kruse, which consisted of only “nine short paragraphs ... containing] only conclusory statements and [was], on the whole devoid of any argument or legal or factual support.” 226 F.Supp.2d at 486. In sum, Questar’s Petition, despite not being styled as a “Motion to Vacate,” is clear in the relief it seeks and cannot be characterized as a “complaint disguised as a ‘[Petition] to Vacate.’ ” See id. While it would have been preferable (and less contentious) to have styled its Petition as a “Motion to Vacate,” the Court finds Questar’s Petition is the substantial equivalent of a motion and, in its discretion, will treat it as such.

B. Timeliness of Questar’s Petition to Vacate

Gorter next asserts that “Questar cannot correct its failure to" file a motion to vacate because the time to do so has expired.” (Docket No. 12-1, at 4-7.) Gorter argues that while § 12 of the FAA provides a three-month period in which to serve notice of a motion to vacate, “the FAA ‘does not prevent the enforcement of agreements to arbitrate under different rules than those stated in the Act itself.’ ” (Docket No. 12-1, at 4 (quoting Ekstrom v. Value Health, Inc., 68 F.3d 1391, 1393 (D.C.Cir.1995)).) Gorter submits that Questar signed a Uniform Submission Agreement, (see Docket No. 12-3), in which it agreed that the arbitration would be conducted in accordance with the rules of the sponsoring organization, FINRA. (See Docket Nos. 12-1, at 5; 12-3.) FIN-RA Rule 13101, titled “Applicability of Code and Incorporation by Reference,” provides that “The Code applies to any dispute that is submitted to arbitration pursuant to Rule[ ] 13200,” which this dispute was. (Docket Nos. 12-1, at 5; 12-4; 12-5.) Further, FINRA Rule 13904, titled “Awards,” states in subsection ©, “All monetary, awards shall be paid within 30 days of receipt unless a motion to vacate has been filed with a court of competent jurisdiction.” (Docket No. 12-1, at 6.)

According to Gorter, by executing the Uniform Submission Agreement that incorporated FINRA Rule 13904, Questar contractually agreed to shorten the period for filing a motion to vacate the arbitration award to 30 days. (Docket No. 12-1, at 7.) As such, Gorter insists, the 30-day period expired on February 13, 2012, and any properly styled motion to vacate or memorandum of law in support thereof filed after February 13 would be untimely. (See Docket Nos. 12-1, at 7; 26, at 6.) In support of this position, Gorter relies heavily on Aviles v. Charles Schwab & Co., where the Southern District, of Florida found that by incorporating FINRA Rule 13904, the parties agreed to shorten the time for filing motions to vacate the arbitration award to 30 days. See 2010 WL 1433369 at *3 (S.D.Fla. April 9, 2010), aff'd, 435 Fed.Appx. 824 (11th Cir.2011) (per curiam). Questar counters, arguing (1) its Petition was filed within thirty days, (2) “FINRA Rule 13904 governs the time in which to pay an award, absent a notice of filing, and not the time to file a motion to vacate under the [FAA]”; and (3) the portion of the decision in Aviles on which Gorter relies was dicta, and on appeal the appellate court disregarded it as such. (Docket No. 21, at 4.)

After reviewing FINRA Rule 13904, as well as the Aviles decision(s) and other relevant decisions, the Court concludes that to the extent Rule 13904 is applicable in this proceeding, it does not represent an agreement by the parties to limit the three-month period provided by § 12 of the FAA. In Aviles, the respondent argued, much as Gorter does, that under Rule 13904, “a party is required to pay an award, or move to vacate an award, within thirty days of receiving the.award.” 2010 WL 1433369, at *2 (internal quotation marks omitted). The district court agreed, concluding that the three-month provision in § 12 “did not apply ... because the first sentence of Rule 13904© mandates that a motion to vacate be filed within thirty days of an arbitration award, [thus] any motion to vacate filed thereafter is untimely.” Id. at *3. On appeal, the Eleventh Circuit affirmed the district court’s decision without directly addressing the .lower court’s interpretation of Rule 13904 or deciding the issue of timeliness. 435 Fed.Appx. at 827. The court of appeals acknowledged, the district court’s conclusion that Rule 13904 established an agreement limiting the time for filing a motion to vacate to 30 days. Id. But, despite that the “parties ha[d] devoted much of their briefs ... to the timeliness [issue],” the court proceeded to “assume (for the sake of discussion) the district court erred in its conclusion of untimeliness,” concluding that “[e]ven assuming timeliness ... none of the arguments made by [the petitioner] justify vacating the award.” Id.

With all due respect to the Middle District of Florida, this Court does not agree that FINRA Rule 13904 establishes a 30-day period for filing a motion to vacate, thereby supplanting the FAA’s three-month limit. The Court agrees with Gorter’s premises that the parties agreed to incorporate the FINRA Rules via their Uniform Submission Agreement and that the FINRA Rules apply. The Court also agrees that parties may agree to a set of rules different than those of the FAA and that “enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). But, the Court does not agree with Gorter’s conclusion that Rule 13904 establishes a 30-day time limit for filing a motion to vacate. “[T]he plain language of the rule,” Gorter contends, “clearly states that payment of the award shall be made in thirty days unless a motion to vacate has been filed.” (Docket No. 26, at 3-4 (emphasis in original).) A critical reading of that rule and simple logic, however, do not support such a conclusion. Although the Court has been unable to locate controlling precedent on this point, decisions by courts outside this Circuit directly support the Court’s conclusion.

First, in Prudential-Bache Secs., Inc. v. Tanner, the First Circuit held that an arbitration rule identical in language to FINRA Rule 13904 did not establish a time limit on motions for vacatur. 72 F.3d 234, 238-39 (1st Cir.1995). There, the rule in question was Rule 627(g) of the Rules of the New York Stock Exchange (NYSE), which read, in identical fashion to FINRA Rule 13904: “All monetary awards shall be paid within thirty (30) days of receipt unless a motion to vacate has been filed with a court of competent jurisdiction.” Id. at 238 n. 2. The respondents argued that NYSE Rule 627(g) established a 30-day period for filing motions to vacate, reasoning that “Rule 627(g), by requiring payment of the award within 30 days of its receipt if a motion to vacate has not been filed, compels the conclusion that any challenge to an arbitration award must be filed within the same time period.” Id. at 238. The First Circuit disagreed:

[Respondents] seek to find a time limit in Rule 627(g) that it does not include .... [T]hey cannot escape the fact that the text of the Rule is clear. As stated by the court below, “[t]he plain language of Rule 627(g) ... does not even address the question of a time limitation on motions for vacatur, but rather establishes when awards are to be paid and the precise moment at which interest begins to accrue on unpaid amounts of an award.” We are unwilling to read a time limit into its language.

In contrast, the text of Section 12 [of the FAA] is unambiguous,, clearly setting out a 90-day time limit. Since the Rules of the NYSE provide no time limit, we find that the FAA 90-day provision applies .... ”

Id. at 238-39 (citations omitted).

The Southern District of New York’s decision in Kruse further supports the Court’s conclusion here. See 226 F.Supp.2d at 485, 487. There, the court began by reciting National Association of Securities Dealers (NASD) Rule 10330: “[A]ll monetary awards shall be paid within thirty (30) days of receipt unless a motion to vacate has been filed with a court of competent jurisdiction.” Id. at 485. The primary issue in Kruse was whether the respondents’ “Cross-Petition to Vacate” was the legal equivalent of a “motion to vacate.” See id. at 485-87. However, despite applying NASD Rule 10330 to determine postaward interest, the court applied § 12 of the FAA to determine 'the time limit for filing a motion to vacate. Id. at 487-88 Thus, the court did not consider NASD Rule 10330 as establishing a time limit for filing motions. See id.

Therefore, the Court finds that FINRA Rule 13904 does not establish a 30-day time limit for filing a motion to vacate. As the First Circuit concluded in Prudentialr-Bache, the plain language of that Rule does not address the question of time limitations for motions to vacate in any way. Rather, it appears as the last of ten subsections under a rule titled “Awards,” and its clear purpose is to establish when awards are paid and when interest begins to accrue on unpaid awards. Logically, the Court cannot read the Rule’s language that “all monetary awards must be paid within thirty days unless a motion to vacate has been filed” as meaning “a motion to vacate must be filed within thirty days” or that “a motion to vacate must be filed within thirty days if an award has not been paid.” Therefore, the correct measure of timeliness for purposes of this proceeding is that of 9 U.S.C. § 12: “three months after the award is filed or delivered.” Because Questar’s Petition to Vacate and subsequently filed Memorandum of Law both fall within § 12’s limitation period, the Court finds both were timely for purposes of the FAA.

C. Local Rule 7.1(a)

As a final threshold matter, Gorter challenges Questar’s decision not to attach a memorandum of law in support of its Petition to Vacate. (See Docket No. 12-1, at 4.) Gorter argues that because Rule 7.1(a) of the Joint Local Rules of Civil Procedure for the Eastern and Western Districts of Kentucky requires that “each motion ‘must be accompanied by a supporting memorandum,’ ” Questar’s Petition cannot be treated as a motion to which Gorter must respond. (Docket No. 12-1, at 4.) However, Local Rule 7.1(a) goes on, “Failure to file a supporting memorandum may be grounds for denying the motion.” LR 7.1(a) (emphasis added). Therefore, it is inaccurate to say Local Rule 7.1(a) necessarily requires denial of a motion submitted without an accompanying memorandum of law. See Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991) (interpreting a similarly worded Kentucky Local Rule to conclude that “[t]he use of the word ‘may’ as opposed to ‘will,’- ... implies that the district court has discretion” in enforcing the rule); see also Neogen Corp. v. U.S. Dep’t of Justice, 2006 WL 3422691, at *2 n. 2 (E.D.Ky. Nov. 28, 2006) (finding lack of strict compliance with LR 7.1(a) excusable and declining to strictly enforce its accompanying-memorandum requirement where to do so would “unnecessarily place form over substance”); Blair D. Fullbach Servs. Inc., 1999 WL 33756627, at *1 (W.D.Ky. Nov. 1, 1999) (considering, in its discretion, the merits of a tardy responsive brief under LR 7.1(c)); cf. Contech Const. Prods. v. Heierli, 764 F.Supp.2d 96, 106 (D.D.C. 2011) (declining, in its discretion, to enforce a local rule and dismiss a petition to vacate unaccompanied by a memorandum of authorities where the court found that respondent was not prejudiced given that the petition adequately set forth the grounds on which the award was being challenged).

Questar filed its Memorandum of Law in Support of the Petition to Vacate Arbitration Award and/or Motion to Vacate with Incorporated Memorandum of Law (Questar’s Memorandum) on March 29, 2012. (Docket No. 23-2.) For the reasons discussed supra Part I.B, this filing remains timely for purposes of § 12 of the FAA. Furthermore, to the extent Gorter argues he could not effectively respond or know how to respond to Questar’s Petition (d la the confused respondent in Interior Finish, 625 F.Supp. at 1238-40), this argument is untenable. Questar’s Petition makes clear its purpose of seeking vacatur under § 10 of the FAA and alerts both the Court and Gorter in ¶ 1 on the first page that Questar would be filing a supporting memorandum within § 12’s three-month period. (See Docket No. 1, at 1 & n. 1.) Moreover, Gorter has abundantly responded to both the substance and form of Ques-tar’s original Petition and its subsequently submitted Memorandum. (See Docket Nos. 11; 12; 26; 27; 28; 52.) Therefore, the Court finds no reason not to consider Questar’s March 29 Memorandum of Law and, in its discretion, declines to dismiss or deny Questar’s Petition to Vacate on the basis of LR 7.1(a).

# # % * % #

For the foregoing reasons, Gorter’s “Motion to Dismiss Questar Capital Corporation’s Improper ‘Petition’ to Vacate Arbitration Award,” (Docket No. 12) is DENIED.

II. Respondent Gorter’s “Combined Motion to Dismiss and/or For Summary Judgment on Questar Capital Corporation’s Petition to Vacate and Motion to Confirm Arbitration Award”

The Court turns next to Gorter’s Combined Motion to Dismiss and/or for Summary Judgment; the Court at this time does not address the portion of Gorter’s Motion that seeks to confirm the arbitration award, but will do so infra Part III of this Opinion. (See Docket No. 11.) As discussed supra Part I.A.3, Fed.R.Civ.P. 81(a)(6)(B) provides that the Rules govern, “except as [9 U.S.C.] providefs] other procedures.” Title 9 does not “provide other procedures” expressly to govern summary judgment, but does instruct more generally under § 6 that “[a]ny application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.” The Court has located no express controlling authority on whether the FAA preempts Rule 56 or whether summary judgment is an appropriate vehicle for seeking relief in the context of judicial review of an arbitration award. See ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 113 (2d Cir.2012) (questioning, without deciding, whether the FAA preempts Rule 56); id. at 122-23 (Straub, J., dissenting) (arguing that the FAA does not preempt Rule 56); cf. Wachovia Sec., Inc. v. Gangale, 125 Fed.Appx. 671, 672, 674-75 (6th Cir.2005) (affirming, without directly addressing whether the FAA preempts Rule 56, a grant of summary judgment which sought confirmation of an arbitration award under the FAA). However, the FAA does clearly provide procedures for the relief available upon judicial review: namely, courts are limited to (1) confirming, (2) vacating, or (3) modifying or correcting an award. See §§ 9-11. These limited judicial options are consistent with the policy “that courts should play only a limited role in reviewing the decisions of arbitrators.” Shelby Cnty. Health Care Corp. v. Am. Fed’n of State, Cnty. & Mun. Emps., Local 1733, 967 F.2d 1091, 1094 (6th Cir.1992).

Here, despite its styling as a “Combined Motion to Dismiss and/or for Summary Judgment ... and Motion to Confirm Arbitration Award,” Gorter’s Motion effectively seeks to respond to Ques-tar’s Petition to Vacate and in turn move for confirmation of the award. (See Docket No. 11.) Therefore, the Court will construe it only as a motion to confirm the arbitration award and, for the reasons discussed infra Part III, will DENY that part of Gorter’s Combined Motion that seeks dismissal and/or summary judgment as moot.

III. Motions to Confirm and Vacate '

Turning now to the heart of this proceeding, the Court presently has before it a mass of filings, variously styled, in which the parties have exhaustively argued for the respective relief each seeks. As such, the ultimate issue before the Court is whether to confirm or vacate the arbitration award underlying this proceeding. Accordingly, the Court turns now to the merits of Questar’s application for vacatur and Gorter’s application for confirmation, which the Court finds may be addressed simultaneously.

The Sixth Circuit interprets §§ 9 and 10 of the FAA as making clear that confirmation or vacatur is to be a summary proceeding, “and [that] the court must confirm the award where it is not vacated, modified or corrected.” Gangale, 125 Fed.Appx. at 676. The Sixth Circuit outlines the court’s role in reviewing an arbitration award as follows:

.[T]he plain language of the [FAA] presumes that arbitration awards will be confirmed, and out limited role in confirming-an arbitration award under the [FAA] is well settled. The parties have contracted for a decision by the arbitrators, not the Court. The standard for judicial review of arbitration procedures is merely whether a party to arbitration has been denied a fundamentally fair hearing. Accordingly, neither the trial court nor [this court of appeals] may reconsider the merits of an award, even when parties allege that the award rests on errors of fact .... As a matter of law, the federal courts are merely courts of enforcement where the award has not been vacated, modified or corrected.

Id. (citations omitted). Under the FAA, an arbitration award may be vacated on any of the following statutory grounds:

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). The United States Supreme Court has expressly held that § 10 “provide[s] the FAA’s exclusive grounds for expedited vacatur.” Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). However, even in light of Hall, the Sixth Circuit continues to recognize that an award may also be vacated where found to be in “manifest disregard of the law.” E.g. Grain v. Trinity Health, 551 F.3d 374, 380 (6th Cir.2008), cert. denied, 558 U.S. 820, 130 S.Ct. 96, 175 L.Ed.2d 30 (2009); Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed.Appx. 415 (6th Cir.2008), cert. denied, 558 U.S. 819, 130 S.Ct. 81, 175 L.Ed.2d 28 (2009).

Questar argues that vacatur is warranted under § 10(a)(2)-(4), as well as on the basis of “manifest disregard of the law.” The Court has considered the entirety of the parties’ submissions, including Ques-tar’s Petition, (Docket No. 1), and Memorandum of Law, (Docket No. 23-2); Gorter’s Combined Motion and Memorandum in support thereof, (Docket Nos. 11; 11-1); the parties exhaustive Responses, Replies, Sur-Replies, Responses to Sur-Replies, and the multitude of exhibits attached thereto {e.g., Docket Nos. 22; 27; 28; 45; 52; 58); and the voluminous arbitration record, which the Court permitted the parties to physically submit to chambers. Based on its review and consideration of these submissions and the parties’ arguments, and for the reasons set forth below, the Court finds that vacatur is not warranted and that the award must be confirmed. The Court will now address in detail the parties’ respective arguments why the award should be vacated or confirmed.

A. Evident Partiality

Questar argues that vacatur is warranted, pursuant to § 10(a)(2), because of the evident partiality of one of the arbitrators, Chairman David Stanton (Stanton or Chairman Stanton). In this regard, Ques-tar argues essentially three points that it suggests establish evident partiality: (1) that Stanton breached his duty to investigate and disclose a potential conflict of interest, (2) that Stanton’s eventual disclosure did not remedy that breach, and (3) that the manner of Stanton’s disclosure did not provide Questar a meaningful opportunity to object or to challenge him. {See Docket No. 23-2, at 3-10.) Despite accurately identifying the Sixth Circuit’s standard for evident partiality laid out in Apperson v. Fleet Carrier Corp., 879 F.2d 1344 (6th Cir.1989), and Andersons Inc. v. Horton Farms, Inc., 166 F.3d 308 (6th Cir.1998), Questar interposes the standard apparently used by other circuits in arguing that Stanton’s actions conveyed a “reasonable impression” of partiality. (See Docket No. 23-2, at 3-4, 8, 10 (citing Schmitz v. Zilveti, 20 F.3d 1043, 1048 (9th Cir.1994); Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 280-81 (5th Cir.2007)).) Gorter responds, arguing that (1) Questar waived any objection to Stanton’s partiality, and (2) even if it did not, neither the facts from the arbitration nor the authorities relied on by Questar support a finding of evident partiality. (See Docket No. 28, at 12-17.) The Court agrees with both of Gorter’s arguments on this issue. Accordingly, the Court finds that Questar waived it objection to Stanton’s partiality by failing to raise that objection at the hearing and, even if it did not, has nonetheless failed to establish evident partiality under the law of this Circuit.

1. Questar waived its objection to Chairman Stanton’s partiality by failing to raise this objection at the arbitration hearing.

The Sixth Circuit has held that “as a general rule, a grievant must object to an arbitrator’s partiality at the arbitration hearing before such an objection will be considered by the federal courts.” Apperson, 879 F.2d at 1358-59; see also Sheet Metal Workers Int’l Ass’n Local Union No. 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir.1985) (finding waiver where a party failed to object to the partiality of arbitrators at the arbitration hearing); Early v. E. Transfer, 699 F.2d 552, 558 (1st Cir.1983) (stating it “is an accepted rule in arbitration cases” that courts will not hear a claim of bias that was not raised at the hearing in which the bias is alleged); accord Delta Mine Holding Co. v. AFC Coal Props., Inc., 280 F.3d 815, 821 (8th Cir.2001) (concluding that “when a neutral arbitrator is challenged for evident partiality, the issue is deemed waived unless the objecting party raised it at the arbitration panel”). Still, the failure to object may not be fatal to the aggrieved party’s claim unless “[a]ll the facts now argued as to [the arbitrator’s] alleged bias were known ... at the time [of the arbitration].” Early, 699 F.2d at 558; accord United Steelworkers of Am. Local 1913 v. Union R.R. Co., 648 F.2d 905, 913 (3d Cir.1981) (finding failure to object fatal to a claim of bias “[w]hen the reasons supporting an objection are known beforehand”).

Gorter argues that Questar waived its objection to Stanton’s continued service as an arbitrator by failing to object when Stanton disclosed his connection to the Local 2100 IBEW, a union that Gorter helped to found. (See Docket No. 28, at 17-18.) Gorter further refutes the notion that Stanton’s disclosure, which was accompanied by his statement that he did not believe that connection would affect his impartiality, had any “coercive” or “chilling” effect on Questar’s ability to object. To this end, Gorter offers two points: (1) that Questar “had already once exercised an objection to remove an arbitrator,” and (2) that Questar’s attorney “specifically stated Mr. Stanton’s disclosure was ‘no problem.’ ” (Docket No. 28, at 18.) Ques-tar, on the other hand, argues Stanton “unduly delay[ed] disclosure of his connection with Local 2100 IBEW” and did not “provid[e] Questar a meaningful opportunity to challenge ... that [Stanton’s] ties to Local 2100 IBEW presented no conflict.” (Docket No. 22, at 5.) Questar goes on:

It was only after [Stanton] had already stated his conclusion that he believed there was no conflict, that [he] then asked whether there were any objections to it. Thus, Chairman Stanton’s failure to disclose his conflict in the appropriate time and manner deprived Questar of a meaningful opportunity to object....

The Chairman’s repeated statements that he did not believe his connection to Local 2100 IBEW would impair his ability to remain impartial were coercive and chilled the exercise of any challenge to the Chairman, who obviously had made up his mind on the issue of conflict.... Questar’s decision to continue with the arbitration was not a waiver because, under the circumstances, any challenge to the Chairman would have been a futile act.

(Docket No: 22, at 5-6.) Questar makes much of the fact that in his opening statement Gorter’s counsel stated: “Gorter ... started out as a laborer.... So a lot of his clients are old union guys and their family and friends.” (See, e.g., Docket No. 23-2, at 7.) This statement, Questar. maintains, establishes that Stanton had constructive notice of a potential conflict at the outset of the proceeding, thus underscoring the untimeliness of his later disclosure.

After reviewing the relevant portions of the transcript, specifically Stanton’s disclosure and the colloquy between Stanton and the parties at that time (excerpted below), the Court finds little support for Questar’s position on this issue.

[Direct Examination of one of Gorter’s former clients by Gorter’s counsel]

Q. How did you come to be Mr. Gorter’s client?

. A. Got. introduced through the union, but I knew him when he worked at the gas company, too, knew of him working on the same job si[t]e.

CHAIRMAN STANTON: Mr. Schafers, let me interrupt you. You just indicated at.one time you held a union job, is that correct?

THE WITNESS: Yes, sir.

CHAIRMAN STANTON: Míay I ask you, sir, what union that was with?

THE WITNESS: Local 2100 IBEW for local gas eléctric.

CHAIRMAN STANTON: Randy Klinglesmith and those guys[?]

THE WITNESS: Gary Klinglesmith.

CHAIRMAN STANTON: I have done arbitrations in a labor management setting with Louisville Gas & Electric and IBEW. I don’t ever recall having any cases or any matters with you sir.

THE WITNESS: No, I have never had an arbitration so I would say not.

CHAIRMAN STANTON: Once I heard that, you mentioned I think you did say the gas company, I thought I should let the parties be aware of that. Again, it’s one of those disclosures that I think has to be made. Kind of inadvertent since we don’t know what is going to be here, what they are going to testify about and what their histories are.

Again, I don’t believe that will impair my ability in any way to discharge my duties in this proceeding.

Mr. Cosgrove [counsel for Gorter], is that disclosure acceptable?

MR. COSGROVE: Yes, sir.

CHAIRMAN STANTON: Mr. Taylor [counsel fqr Questar]?

MR. TAYLOR: It is.

(Docket No. 11-3, at 21-23; Tr. of Evid., at 1805:21-1807:13 (emphasis added).)

CHAIRMAN STANTON: At the beginning of this proceeding in opening statements I believe you indicated that Mr. Gorter built his book of business through various union clients, and for the sake of getting into the same disclosure issue, are they predominantly with Louisville Gas & Electric employees, IBEW? Mr. Gorter, I’m trying to get a clarification.

MR. COSGROVE: Is that the union you are in?

MR. GORTER: That was the union I was in and helped start.

CHAIRMAN STANTON: You were also in that union?

MR. GORTER: Yes, sir.

CHAIRMAN STANTON: Union clients never was elaborated upon, and again for the purposes of this proceeding, I don’t recall ever having any matters with you personally. Correct me if I’m wrong, after 2,000 plus cases, I can’t keep everybody straight. I do not believe that to be the case.

MR. GORTER: No. I left, I left Louisville Gas & Electric, gosh, back in '70 something after I had that injury and the union started.

CHAIRMAN STANTON: I recall remotely about that but not vividly, and I just want to make sure that is all in the record.

Are there other individuals here today, the affiants that are going to be in that same relationship with you, Mr. Gorter?

MR. GORTER: Danny Williamson worked at Louisville Gas & Electric also, but he is the only one today, and it was a mix.

CHAIRMAN STANTON: To the extent I may see a face and recognize someone. If that is the case, I will make the same disclosure again when he mentions that just so the record is clear. Again, I don’t believe it has any impact at all on my ability to discharge my duties in this proceeding, but I want to be fair to everyone here that once it became clear that there is the labor organization we are talking about and the process of you building your business, I have done work with them over the last 20 plus years. So.

MR. TAYLOR: Do you represent the union?

CHAIRMAN STANTON: No, not at all. Pm the arbitrator.

MR. TAYLOR: That is what I thought.

(Docket No. 11-3, at 25-27; Tr. of Evid., at 1816:24-1818:24 (emphasis added).)

CHAIRMAN STANTON: [To the Witness] It’s my guess you probably haven’t been in a proceeding like this before, is that a fair statement?

THE WITNESS: A proceeding like this, an arbitration? I have been in arbitrations.

CHAIRMAN STANTON: You have been in arbitrations before with the IBEW Local 2100?

THE WITNESS: That is correct.

CHAIRMAN STANTON: Sir, I am the labor arbitrator and I have done work with the Louisville Gas & Electric Company and the IBEW with Bill Noyse and Gary Klinglesmith.

THE WITNESS: Very familiar.

CHAIRMAN STANTON: I don’t recall having any proceedings with you.

THE WITNESS: I don’t either.... I think the arbitration itself concerned a grievant by the name of Reeser.

CHAIRMAN STANTON: I don’t recall ever having anything. It’s my obligation in this proceeding to these parties to disclose those matters. I understand your relationship with Mr. Gorter who is a party in these proceedings through your relationship with him at Louisville Gas & Electric Company.

THE WITNESS: Yes.

CHAIRMAN STANTON: It’s my obligation to advise the parties here that at some poin