Wins and losses and goings-on

It’s been busy over here at Barge and in Charge.

On the good front is Kenai Ironclad v. CP Marine Services, LLC, where the Fifth Circuit held that punitive damages can be awarded even if compensatory damages aren’t awarded. This is a big deal and an interesting case.

On the less good front is Certain Underwriters at Lloyd’s London v. Cox Operating, where the Fifth Circuit held a P&I Policy covers maintenance and cure for an accident that occurs off a vessel, even if it doesn’t cover the liaiblity claim that occurs off a vessel. There are three more outstanding: one on the Miller Act; one on late notice under a P&I policy; and a big one with regard to the Coast Guard and what counts as American-made. Oh, and a trial with regard to pollution coverage. And a lot more on the way.

Another win

You may have heard that it’s illegal to discriminate. I mean, you can discriminate to your heart’s content against lots of people. For instance, in hiring, you can discriminate against people who aren’t as good at their job, or who you think won’t be as good at the open position for which you’re hiring. But you can’t discriminate on the basis of sex or race or age or religion. Some of that comes from the Fourteenth Amendment, and more of it comes from Title VI and VII of the Civil Rights Act, which say, you know, you can’t discriminate on the basis of those grounds.

And if you do discriminate, then the person against whom you have discriminated can go to the EEOC and tell them you’ve discriminated. The EEOC might do something or it might not do something, but whether it does or not, you still might face a federal lawsuit.

But if you don’t adequately prepare your EEOC complaint, that’ll come back to bite you because your pleadings to the district court are limited to what you argued to the EEOC. And as feared as they might be, a discrimination suit against you can be won!

whoa

Your scribe likes to box.* In fact your scribe has sparred with Sean Hemphill, a lot. Sean is the best boxer in New Orleans. (Sean goes real light because your scribe ain’t bad, but can’t play in that league.) And thus your scribe has been known to say, with confidence born from ignorance, that he is the best lawyer who boxes and the best boxer who lawyers.

Which it turns out that second part is untrue - or, if you prefer, still true but limited geographically. William Hutchinson is also a lawyer, and also a boxer, and William Hutchinson is fighting Adrian Broner, which is a different league of boxing.

I will still claim to be the best lawyer who boxes though.

*There are at least a couple local lawyer ads involving boxing, but to my knowledge none of the lawyers in those ads has actually stepped into a ring. If anybody reading wants some rounds, let me know.

Update: Mr. Hutchinson went a game 10 rounds before losing to AB unanimously. You won’t see any hate on the guy here though.

Another win, and a lesson about the importance of proofreading

So LLCs are a thing, and the first word in there is “limited,” and the second word is “liability.” That means what you’d think it means. If you sign an agreement where an LLC agrees to pay you money and the LLC doesn’t pay you money, then you can sue the LLC but you can’t sue its members. Sometimes. Depending.

One of the times where you can sue the LLC’s members is if you have a personal guaranty where the member of the LLC agrees. Simple enough - pure contract law. If you agree to something, it’s hard to say you didn’t agree to that thing.

But there’s always an edge case. Take for instance a form that says “Corporations must complete the following form” and then says “[person] hereby declares that the [sic] guarantees the performance of all terms and conditions for the herein above described agreement [. . .]. What’s that mean?

Well, there are a couple different interpretations. One is that Person is responsible for the debts of Company. The other is that Person guarantees that Company will pay Company’s obligations. And here we end up with two different rules of construction. The first is that if you write something, it’s on you to write it clearly. The second is that if we’re going to make a person liable for the debts of the company, it had damn well better be clear. When you look at the guarantee in that light, it becomes pretty clear that it isn’t effective to make a person liable for corporate debts. If it had said “he guarantees instead of “the guarantees” then maybe it’s a different answer. Just one letter. Rough.

And so finding, the Louisiana First Circuit found that the person doesn’t owe the company’s debts.

A win

You own a boat. You want work for your boat. You find customers, and you also find people who know customers. For a little slice of the action, they’ll get you work with the customer.

Y’all want a good, solid written contract to button this up. But everybody has their own pecadillos when it comes to contracts and so there are all sorts out there. It gets to be a lot where there is a broker involved too, because the broker ordinarily signs the contract with the customer, and then wants to pass those risks off to the owner. Then there are all these other contracts between the customer and all its other contractors and subs.

Here, there’s one contract between the customer and the broker, and another between the broker and the owner, and a third between the customer and its other contractor, who is a crane operator. A person on the vessel gets hurt because the crane operator messed up. Often, the contracts will say “you’re on for your dudes and you gotta take care of me and my contractors and my subs.” Sometimes, it will say “you’re on for your dudes and you gotta take care of me, but my contractors are on their own.”

Here, the contract between the broker and the customer said “you gotta take care of me” but didn’t say anything about subs. And the contract between the broker and the owner was sort of a different one. It said “you gotta take care of me, and my customer, and my customer’s customer, and my customer’s customer’s customer, and all of their neighbors and contractors and subcontractors and dog walkers and everybody else in the whole world.” And then it had a limitation, which was, roughly, this: “you have to take care of all these people and groups and such, BUT ONLY if I have to take care of them in my contract.” The crane operator read the contract to say that the limitation didn’t apply, and we read the contract to say the limitation did apply, and we won at the district court level and then again at the Fifth Circuit. Which was great. Every time I say this I feel a little weird, but contracts are entirely my jam.

A loss

A purely maritime claim doesn’t have a statute of limitations (or, for you Louisianans, a prescriptive period). It has laches, which is kind of weird. Laches means that even if you’re past some deadline, you still get to bring a claim, it’s just that you have to prove the other side wasn’t prejudiced.

But congress can change that if they want to. As the Supreme Court said about maritime common law, “we sail in occupied waters,” where the occupier is, I guess, Congress.

Separately, you can bring a claim for salvage. Well, maybe. I mean, you can bring a claim for salvage if you render aid to a vessel in distress, and there are all these factors that come into play to figure out how much you get. It’s a purely maritime claim. You can’t bring a claim for life salvage. Save people from a sinking ship but leave the ship behind? That, my friend, gets you $0.* Congress didn’t like that so Congress passed a really narrow life salvage statute: if you save lives, and I save the boat, then you get a part of my salvage award. And Congress put a time bar: you have to do that within two years.

Does that two-year limit apply to pure salvage or just to life salvage? Courts have uniformly said that it applies to both. But it’s worth a shot at suggesting otherwise, and lo, the shot was made. Regrettably, the district court said “no, two years means two years” and it is under a statute of limitations, not laches. And the Fifth Circuit agreed.

*If we’re going to be economically rational about this, then there’s an easy answer. You have somebody’s life in your care, and that’s worth something, right? Typically, this is known as a hostage, and you are basically the Dread Pirate Roberts. But it’s against the law to hold hostages. Historically, that’s been a sometimes-impediment. Famously, it happened to Julius Caesar, who at that point was not quite so famous or else maybe the pirates would have thought better of it. Young Gaius Julius was indeed ransomed, then, being Caesar, he turned around and hunted down and killed the pirates. Occupational hazard I guess. Better to do the right thing.

For more on piracy, read this, which is great.

Copyright for boats

Back when I was in law school I learned about the Digital Millenium Copyright Act, because it was pretty close to the turn of the century and I thought copyright was interesting.

I didn’t learn about the Vessel Hull Design Protection Act, which, given the 20 years since then, seems like an oversight. It turns out next-to-nobody learned about it and it hasn’t done much.

But it’s kind of cool. You can copyright* your hull design. Vessel hulls don’t get normal copyrights because vessel hulls are functional in nature. And most of them don’t get patents either because they aren’t really patentable. But especially with smaller vessels, it’s really easy to take a hull, then take a mold of that hull, then start making that hull and ripping off somebody else’s work. That seems bad. There otta be a law, right?

The state of Florida passed a law that said you can’t do that. But then the Supreme Court struck it down, finding that this particular area of IP law is occupied by Congress and states are not at liberty to pass additional laws. So then it got stuck into the DMCA.

The problem is nobody has applied for a vessel hull copyright in about a decade. If anybody reading this (a) has a vessel hull design and (b) wants to register it, let me know. It’ll be fun. I won’t charge for the work.

*I say copyright but it isn’t really. It’s sui generis - it’s way briefer than a copyright and you have to file for it, unlike a copyright.

Maritime liens: towing doesn't get you there

Say there’s a bankruptcy. You know what gets hard done by in a bankruptcy is trade debt. Much better to have a security interest in something so you have a chance of recovery.

Say you’re towing company, and you’re towing a barge out to a rig, and there is a decomissioning heavy lift vessel, and the heavy lift vessel puts pieces of the rig onto your receiver barges. Have you provided a necessary to that barge within the meaning of the 46 U.S.C. § 31301(4)? If you have then you can lien the thing, which is way better than an unsecured debt. And I mean it says right there in the statute that towage is a necessary.

It’s a pretty compelling argument. But no dice. “It is plain that the barges were not equipment for the Nor Goliath, did not help the Nor Goliath’s crane raise and lower the platform components, and so the Nor Goliath did not “use” the barges. It follows that the Towing Companies did not provide a service necessary to the Nor Goliath’s particular function.” Rough luck.

The case is Central Boat Rentals et al v. M/V NOR GOLIATH et al, c/a no. 21-60501.

Personal Jurisdiction

As regular readers are aware, this space tends toward the really eye-catchy stuff. The stuff that the lay reader has real interest in. Like 1292(a)(3) appeals and what-have-you. Or in this case, personal jurisdiction.

Let’s say you’re on a navy ship and you’re in the South China Sea and your ship collides with another ship and you get hurt. You can probably sue that other ship in its home country (but that’d be determined by its home country) but that doesn’t sound great to you, right? Imagine going to Japan, say, for the application of Japanese law, and speaking with your lawyer over there, and trying to figure out their legal system. Much better to sue in the U.S. But where?

A lot of really weird and important questions arise. First off, where in the Constitution does it say where you can get sued? It’s right there in the 5th and 14th Amendments: due process. How much do Japanese companies get to avail themselves of the 5th and 14th Amendments though? Can you sue them in Idaho? That hardly seems fair, right?

The plaintiffs (who were in fact on a navy ship and there was a collision overseas) say this is the test:

whether a defendant, sued on a federal claim, was doing enough systematic and continuous business in the United States that it had fair notice it could be subjected to suit in federal courts.

The Fifth Circuit, en banc, over a lot of back-and-forth, said "no.” It said that the same personal jursidction test applies to foreign people and companies as to domestic people and companies. Gotta sue in Japan.

One lemma: there is an argument that admiralty has special rules. If the ship that had done the colliding were in the U.S., then the plaintiffs could have arrested it.

Success

Offered without material comment.

A valiant effort, but, uh, yeah.

There used to be lots of asbestos, apparently, and now there are still a lot of asbestos suits.

Here in New Orleans a lot of those suits involve people who used to work in or on or around boats, and often those claims are brought in Civil District Court. But arguably they shouldn’t be brought at all because, arguably, those folks are really maritime workers, their exclusive remedy is under the Longshore Act. This is a big difference: it’s the difference between basically a sum certain per a schedule (longshore), versus whatever a judge or jury so decides.*

But routinely, the asbestos cases go to trial in state court anyway, and the state court judge says that the judge or jury can award damages. Not great for the defendants, if in fact the plaintiffs should only have a longshore claim.

“Somebody ought to do something to fix this,” somebody must have said, and lo, a plan was hatched: sue the state court judge in federal court for an injunction.

Uhhhhh. Hmmm. This is a creative plan. But it has a problem: the anti-injunction act. The anti-injunction act is a law that Congress passed that says, basically, federal courts can’t enjoin state courts except in exceedingly rare circumstances. And lo, the defendants lost and the plaintiffs probably tried their case in state court (or more likely tried one day of the case then settled for a dump truck load of money.) Imagine showing up to Court in front of the judge you just sued and putting on a defense. Imagine lodging an objection in front of that judge, whom, again, you had literally just sued.

So justice prevailed. Probably? We don’t know? Justice kind of prevailed, probably. If it is true that the exclusive remedy is under the Longshore Act and if it is true that Congress’s chosen remedy did not prevail, then justice did not prevail in the immediate. But if it’s not true (and I am not an expert here) then justice prevailed, and even if it is true we probably don’t want federal courts telling state courts what to do all the time, which is why there’s an anti-injunction act in the first place.

*Your scribe was called to jury duty in Orleans Parish Civil District Court. I said to myself that if so selected, I would duly serve on a jury. And then I was called to a jury pool for a ten-day asbestos trial, and my courage to serve turned to cowardice and I knew some of the lawyers involved so was immediately dismissed. First one out. Not sad about not spending ten days in an asbestos trial.

**I am also pretty sure I know one of the lawyers involved who is a good guy and good lawyer.

M&C and contribution and 1292(a)(3) appeals

It feels a little weird to write a blog post about winning a case, because theoretically the blog is more for miscellanea, and a little bit for important cases. But this one fits the bill.

There’s a 2015 accident where somebody gets hurt, pretty significantly, to her neck. She keeps working though, for nearly another three years, until she gets hurt again in 2018, and this time she gets a lawyer and seeks medical attention. She sued the tortfeasor for the first accident, and the tortfeasor for the second accident, and then pretty quickly settled with the tortfeasor for the first accident.

Her employer is responsible for all her medicals because that’s what cure is. But her employer gets its cure back from the responsible party, to the extent there is one, so the 2018 tortfeasor / Jones Act employer sued the 2015 tortfeasor.

The 2015 tortfeasor said “nahhhh we’re way too remote you don’t get anything” and filed a summary judgment to that effect. The opposition was “look at all this stuff where she says she was hurting the whole time.” Then judge said something different: he said that a second accident terminates a maintenance and cure obligation for a first accident, full stop. Motion granted. Motion for reconsideration denied.

So an appeal followed, and there’s a bit of a wrinkle here, which if you’re into appellate miscellanea (and who isn’t, really) is really interesting:

The plaintiff pled for a jury. You’re not entitled to a jury in purely admiralty cases. In civil cases, there’s no right to immediate appeal of interlocutory orders, but there is one* in admiralty cases. But the claim by OMC against REC is admiralty, right? Right??

Anyway, your scrivener is up there arguing the case when the panel says, in effect, “we dig what you’re saying but don’t have jurisdiction.” So your scrivener goes back to the district court and says “hey judge will you certify this as appealable under 54(b)? And to his credit, he does, so the Court has jurisdiction**.

The Fifth Circuit rules that ordinary rules apply to maintenance and cure, a win is notched, and (seemingly) normal prevails.

*1292(a)(3) provides that there are interlocutory appeals in admiralty matters, but only for those that resolve a claim among / between the parties.

**There’s a side-story here: ordinarily appellate jurisdiction can’t get changed after-the-fact: if you don’t have it when you appeal, you can’t get it. But then the Fifth Circuit decided en banc that the district court can sort of fix these problems because really who wants to get all the way through this when the problem is eminently fixable.

Offshore wages, day rates, and overtime

For the most part, people who work on rigs offshore are paid a day rate: $100 a day, or $500 a day, or whatever. They aren’t paid salaries. They don’t get overtime.

There are a lot of laws and regulations out there all stemming from the Fair Labor Standards Act about overtime. The crux of the question is this: if you’re making a lot of money and you are, within the meaning of the regulations, a supervisor, bur you are paid a day rate. You don’t technically have a minimum annual / weekly salary, do you? You have a minimum daily salary. So do you get overtime? You never have before.

According to the Fifth Circuit, yes. For now

The Fifth Circuit took the case en banc and here’s the argument. It’s a difficult one. It seems like there’s probably an easy fix: if you offer people a guaranteed minimum weekly instead of a day rate, you clearly comply. So it’s probably not the end of the world but it is a very interesting dispute. You know, if you’re into the deep dive into the department of labor regs and overtime pay. Which, if you’re reading this, you probably are.

Finally, an opinion: I have no idea. None. Some of these are easy. Some of these are hard. This one is real hard.

Man is it hard being right all the time redux

It’s been a busy little while here at Barge and in Charge, but I’m peeling off a couple minutes for an important one.

“I feel pretty safe telling you what the outcome is: Mr. Sanchez is probably in for a rough day.”

That’s what your scribe said in January. And lo, it has come to pass, in the long-awaited Fifth Circuit opinion on seamen. To recap: First, Judge Davis issues a concurring opinion to his own opinion where he says “let’s fix this” and then he fixes it. Unanimously! (Before you rush to give me credit, let me note that this was a pretty easy one.)

And what’s more, Judge Davis fashioned a new test that seems . . . really good? Here it is: to find out if somebody is a Jones Act seaman, we should ask:

(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?

(2) Is the work sea-based or involve seagoing activity?

(3) (a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?

And this seems to do two very important things. First, it just makes sense. The problem with the pre-Sanchez cases is that you have longshoremen who are also Jones Act seaman and there’s a real sense of ‘yes on a technicality but let’s get real’. If your employer has a shipyard, and you work in the shipyard on your employer’s vessels, you used to be a Jones Act seaman. That doesn’t really add up. But under the new test, you pretty clearly not a seaman.

The second important thing the test does is that it’s easy to apply. It’ll be subject to some interpretation - does the so-called diver exception still exist? - but generally speaking, you can give me a call and let me know what sort of work your dude was doing, and I can tell you pretty much immediately whether she or he is a seaman or not.

One point that’s probably worth making: what this seems to be is the common law at work. There are not a lot of areas of federal common law left. The big one is admiralty. There are big interesting questions about whether judge-made law or legislature-made laws are better, and when they’re better. I think Luigi Zingales goes into this in A Capitalism for the People. Here, we have the Fifth Circuit making a mistake a couple years ago in Naquin v. EBI, then the Fifth Circuit recognizing they made a mistake, and then the Fifth Circuit fixing their mistake. The plural of anecdote isn’t data, but this is still a positive instance.

Oysters everywhere

You own an oyster lease. You farm it. You put down crushed concrete or limestone (culch) to give the baby oysters (spat) a place to grow and be happy. Then you harvest them and sell them to restaurants.

Small little note though: you don’t actually own the oyster lease. The hint is right there in the name - you lease it. And let’s just say, for happenstance, you aren’t the best about recording your sales or, you know, paying your taxes.

Anyway, a tug comes and does some damage to your oyster lease, so you sue. And you get $7,000,000, because your lawyers convince a jury that you suffered $7,000,000 in damages. And the other side appeals it and it gets upheld on appeal. And then it goes to the Louisiana Supreme Court, where, weirdly, sanity breaks out.

Your lawyers argued that the OLDEB (pronounced Old Ebb) formula applies. OLDEB is sort of a way to . . . well, it’s a lot. It’s a formula by which mineral rights holders and oyster lease holders can come to terms before work is done. And what you do is you take a survey of the oysters before the oil + gas work and a different survey after the work, and you see what’s happened. But you, lease-holder, probably don’t have a before survey here, because you weren’t planning to file suit.

The Louisiana Supreme Court says that’s no good: no using the OLDEB formula this way. And what’s more, the ordinary plaintiff oyster expert report that says there are millions of dollars worth of damages is no good either. It orders a new trial.

What does this mean? We’ll see. It means that oyster claims will end up being significantly smaller is the best guess.

Mr. Sanchez faces a test

We’ve talked about Sanchez before. You’re a shoreside employee. Say a welder at a yard. You go onboard the vessels but they’re all at the dock. You get hurt. Are you a Jones Act seaman? Well, eh.

It used to be the answer was “yes” and then Judge Davis issued an opinion where said “yes that’s true but also dumb and wrong so let’s fix it.”* He asked for en banc consideration. The Fifth Circuit said “ok.” And then they granted en banc argument and took briefing.

Mr. Sanchez had a real rough go of it, which is no fault of his lawyer - when Judge Davis says he’s going to fix something, there’s probably not a lot of chance you’re going to change his mind.

I feel pretty safe telling you what the outcome is: Mr. Sanchez is probably in for a rough day. He’s a longshoreman, not a Jones Act seaman. But the precise contours that will govern your work going forward are harder to discern. The Fifth Circuit seems to be saying that you have to go to sea (or, uh, river or bayou) to be a Jones Act seaman. But what does ‘go to sea’ mean? It’ll be interesting to see how this shakes out.

*This is not an actual quote but it’s the gist.

A win on the administrative front - Kisor v. Wilkie, applied!

Back in the halcyon days of 2013, a ship sank, and your author was tasked with overseeing the legal aspects of its removal - drawing up a contract with the salvor and all that stuff. And it went really well, all things considered: the boat was removed on a timely basis. But there was one small hiccup. A pollution-response vessel was hired to make sure the sunken vessel was marked and wasn’t leaking hydrocarbons, but it, according to the folks who hired it, didn’t do its job all that well. In fact, it lost the boat, and the salvor charged extra to find it. So the pollution-response vessel didn’t get paid for the work they didn’t do.

The pollution response folks got all angry and they said “give us our money” and your author, with client agreement, said “no” and then they submitted a claim to the National Pollution Funds Center, which is a creature of OPA-90. The NPFC is supposed to pay claims for pollution work, but only sometimes, and there are regulations about that. Your author said to the NPFC “Don’t pay this because [reasons]” and then nothing happened. And then, back in 2017 or so, the NPFC sent a letter to your author and said “hey remember this thing? Well we paid it and now you[r client] owes us the money so tell them to pay.

It turns out they weren’t owed the money because there’s a three-year sunset on that, but there is an infinite timeline on administrative offsets. But anyway the NPFC wanted the money and didn’t want to settle, and so suit was joined and we were off to the races.

Cross-motions got filed a long time ago and just recently, the court ruled. There were a bunch of issues, but as it happens, the decisive issue was a regulation that says this:

The amount of compensation allowable is the total of uncompensated reasonable removal costs of actions taken that were determined by the FOSC to be consistent with the National Contingency Plan or were directed by the FOSC. Except in exceptional circumstances, removal activities for which costs are being claimed must have been coordinated with the FOSC.

I argued that there were no exceptional circumstances, and there was no FOSC (Federal On-Scene Coordinator) for this removal. There was no FOSC because it was private parties. And because of that, I argued, we win. I’ll send you the brief if you’d like to read it. There were some other arguments, but the upshot is the judge agreed with us and we won!

There is a fun little administrative law quirk here. While the case was pending, the Supreme Court, uh, clarified (read: nearly killed) Auer. Auer is a case that says agencies get deference in interpreting their own regulations. The Supreme Court ruled in Kisor v. Wilkie that agencies do get deference, kind of, sometimes, but it is limited. And so the NPFC/Coast Guard argued that they get deference to argue what is and what is not ‘exceptional’. And this is one of the first cases interpreting Kisor, which is kind of cool. The Court ruled that the regulation is in fact ambiguous, but that the Coast Guard’s interpretation was not reasonable so it did not get deference.

Shipbreaking in Asia gets you sent to jail

If you haven’t read this you should read this because it’s great.

Short version:

If you have an old beater of a boat that probably has asbestos and hydrocarbon sludge and God only knows what else, you don’t want to take it apart on your pristine shores because, well, you have real spendy employees who are protected by laws and regulations, and so too beaches and so forth.

So you send it to India or Pakistan or somewhere and they do it for you, and a lot of people die.

This sounds bad. But it’s a lot more complicated than all that, as William Langewiesche explains. Really, it’s great and you should read it.

A lot of people think this is bad, though, and not without reason: you’re just exporting your asbestosis and pollution and death. And some of them criminalize it, and then if you try to do this, you can go to jail. Which is how one Norwegian found himself staring at six months in the ice-pokey, or whatever sort of penal system Norway has.

What it means to be a Jones Act Seaman, redux

It’s happening! The Fifth Circuit’s misguided stance on whether you can be a Jones Act seaman and a longshoreman (spoiler alert: yes for now) is getting re-evaluated. Discussion here.

But the Fifth Circuit is taking a look at the thing en banc and ought to straighten out some of this. If anybody wants to file an amicus brief, hit me up.

Arbitration and interminable litigation

OOGC and Chesapeake Energy had an arbitration agreement. They had a dispute, too, so they arbitrated it, back in 2016. The arbitration award came back in favor of Chesapeake. OOGC didn’t like that and they thought one of the arbitrators had a conflict, so they went to federal court. The federal court stayed the arbitration, then did . . . a lot of nothing. As the fifth circuit explains,

No rulings were issued by the district court through the remainder of 2017 and most of 2018, despite several unopposed requests from OOGC for a ruling or status conference. Then, in December of 2018 [the district court ruled.]

And the district court didn’t just rule, the district court evidently got it way wrong: “The opinion erroneously referred to Long as the arbitration panel’s chairman and drew attention to what it termed his ‘deceit,’ and ‘corrupt[ion].’”

Your author is ordinarily a big fan of federal district court, and soft on arbitration. Hard to say that’s a reasonable conclusion here, except: the district court got reversed, so all’s well that ends well.

The upshot from the case: first, getting rid of arbitration because of bias from the arbitrator is hard. Congress instructs courts to like arbitration. Second, there are some district judges who really benefit from life tenure.