Louisiana Health Service Indemnity Co v. Gambro A B et al

Filing 51

MEMORANDUM RULING re 35 MOTION to Reopen/Reinstate Case (1) To Vacate Arbitrators' Awards Permitting Class Proceedings; or, in the Alternative, (2) to Clarify the Court's March 2006 Order Granting Motion to Compel Arbitration filed by D V A Renal Healthcare Inc, Gambro Healthcare Inc. Signed by Judge Tucker L Melancon on 12/21/10. (crt,Yocum, M)

Louisiana Health Service Indemnity Co v. Gambro A B et al

Doc. 51

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E DIVISION L o u is ia n a Health Service In d e m n ity Co. v e rs u s G a m b r o A B, et al C iv il Action 05-1450

J u d g e Tucker L. Melançon M a g istra te Judge C. Michael Hill M E M O R A N D U M RULING B ef o re the Court is defendant DVA Renal Healthcare, Inc. f/k/a Gambro Healthcare

In c .' s ("Gambro") Motion To Re-Open The Case: (1) To Vacate Arbitrators' Awards P e rm ittin g Class Proceedings; Or, In The alternative, (2) To Clarify The Court's March 2006 O rd e r Granting Motion To Compel Arbitration [Rec. Doc. 35], plaintiffs, Louisiana Health S e rv ic e Indemnity Company, d/b/a BlueCross BlueShield of Louisiana, HMO of Louisiana, In c .'s ("BCBSLA") Opposition thereto [Rec. Doc. 39], Gambro's Reply memorandum [Rec. D o c. 45] and BCBSLA's Opposition to the Reply [Rec. Doc. 46]. I. Background B C B S L A filed this action on August 8, 2005 to recover damages for overpayments it allegedly made to Gambro as a result of Gambro's "unlawful conduct." R. 1; ¶3 a-h. On N o v e m b e r 29, 2005, Gambro filed a motion to stay this litigation and compel BCBSLA to a rb itr a te its claims under the contract between Gambro and BCBSLA. R. 21. Following oral a rg u m e n t on the motion on March 15, 2006, the Court granted Gambro's motion to compel a rb itratio n and administratively terminated this action subject to allowing any party to initiate a motion to reopen the proceedings within thirty (30) days of the arbitrator's decision if d e e m e d necessary. R. 34.

Dockets.Justia.com

F o llo w in g the Court's order requiring BCBSLA to arbitrate its claims, BCBSLA filed its class arbitration demand with the American Arbitration Association's ("AAA") on O c to b e r 26, 2006. R. 35, Exh. F. As provided under the AAA's Supplementary Rules for C la ss Arbitration, an arbitral panel must first issue a Clause Construction Award after c o n sid e rin g whether the arbitration agreement between the proposed class representative and th e opposing party authorizes class arbitration. Id., Exh. G, AAA Supp. Class Arb. R. 3. On O c to b e r 5, 2007, the arbitration panel in this case ("the Panel") issued its Clause C o n s tru c tio n Award finding that BCBSLA and Gambro had agreed to class arbitration. Id., E xh . K. In its Award decision, the Panel stated, "[if the] sophisticated [parties in the a r b i t ra tio n ] intended to exclude class arbitrations, the arbitration clause could have been w ritte n to specifically state that no class arbitration shall be permitted." Id. As the a rb itra tio n clause required that the laws of Louisiana apply, the Panel further stated, "[u]nder L o u is ia n a law, waiver of a right must be clear and unambiguous. The language in the a rb itra tio n clause does not set forth a clear and unambiguous waiver of the right of BCBSLA to attempt to proceed as a class arbitration." Id.(internal citations omitted). Finally, the Panel referred to the language in the subject arbitration clause which stated, "[a]ny and all dispute resolution procedures shall be conducted only between the parties." Id. The Panel stated, "[t]he lan g u a g e of the arbitration clause in this matter is not dissimilar from the language set forth in the Bazzel1 arbitration clause. In Bazzle, the arbitration clause was for disputes `arising f ro m or relating to this contract or the relationships which result from this contract'. . . . a sta tem e n t in the arbitration clause that dispute resolution procedures shall be conducted only

1

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003). 2

b e tw e e n parties can not be viewed as dispositive of the question of whether class arbitration is permitted. . . . The clause `any and all dispute resolution procedures shall be conducted only between the parties' can be read in the broader context . . . Arguably, the dispute could be only between the parties of a possible certified class on one hand and Gambro on the other." Id. In c o n c lu s io n , the Panel held that the arbitration clause permitted the arbitration to proceed on b e h a lf of the class and stayed all proceedings for at least 30 days to permit any party to move a court of competent jurisdiction to confirm or vacate the Clause Construction Award. Id. O n April 30, 2010, Gambro filed a Motion to Reconsider the Panel's Clause C o n s tru c tio n Award based on the Supreme Court's decision in Stolt-Neilsen S.A. v. Animal F e e d s International Corp., 130 S.Ct. 1758 (April 27, 2010), arguing that Stolt-Neilsen co m p elled the Panel to reconsider the Clause Construction Award because BCBSLA's a rb itra tio n agreement was silent on class arbitration just as the arbitration clause considered b y the Court in Stolt-Neilsen. Id. at L. The Panel issued its denial of Gambro's motion on J u n e 7, 2010, citing the 2005 contract between the parties which incorporated the terms of th e BCBSLA Participating Providers Office Manual, providing for arbitration of disputes b e tw e e n the parties following the rules of the AAA. Id. at R. The Panel held that pursuant to Supplementary Rule 3 of the AAA 2 , the proceedings were "`stayed for at least 30 days to

2

Rule 3 of the AAA Supplementary Rules for Class Arbitrations ("Rule 3") provides: Upon appointment, the arbitrator shall determine as a threshold matter, in a reasoned, partial final award on the construction of the arbitration clause, whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class (the "Clause Construction Award"). The arbitrator shall stay all proceedings following the issuance of the Clause Construction Award for a period of at least 30 days to permit any party to move a court of competent jurisdiction to confirm or to vacate the Clause Construction Award.

3

p e r m it any party to move a court of competent jurisdiction to confirm or vacate the Clause C o n s tru c tio n Award.' Both parties declined to do so and the stay period expired." Id. The P a n e l further held that as the Clause Construction Award was a "Partial Final Award" p u rs u a n t to Supplementary Rule 3, and "did finally determine all issues regarding whether th is matter can proceed as a class arbitration.... The doctrine of functus officio bars the trib u n a l from rehearing the Clause Construction Award. Id. (citing Housing Auth. of New O r le a n s v. Henry Ericsson Co., 197 La. 732, 756 (1941); Anderman/Smith Operating co. v. T e n n e ss e e Gas Pipeline Co., 918 F.2d 1215, 1220 n.4 (5 th Cir. 1990))". G a m b r o filed the motion at bar on September 2, 2010 requesting the Court vacate the P a n e l's October 5, 2007 Clause Construction Award permitting class arbitration in this m a tter, or in the alternative, to clarify the Court's March 2006 Order granting the motion to c o m p e l by authorizing BCBSLA to pursue only individual claims against Gambro rather than th o s e on behalf of a proposed class. R. 36. II. Standard Of Review The Federal Arbitration Act ("FAA") provides the means for enforcing arbitral a w a rd s , via a judicial decree confirming, vacating, modifying or correcting an award. Hall S t . Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008). "Judicial review of an arbitration a w a rd is `exceedingly deferential.' Kergosien v. Ocean Energy, Inc., 390 F.3d 346, 352 (5th C ir.2 0 0 4 ). Vacatur is available `only on very narrow grounds,' Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 377, 380 (5th Cir.2004), and federal courts must defer to the a rb itra to r's decision when possible. Antwine v. Prudential Bache Sec., Inc., 899 F.2d 410, 4 1 3 (5th Cir.1990). An award must be upheld as long as `it is rationally inferable from the le tte r or purpose of the underlying agreement.' Nauru Phosphate Royalties, Inc. v. Drago 4

D a ic Interests, Inc., 138 F.3d 160, 164-65 (5th Cir.1998)(internal quotation marks omitted). Even `the failure of an arbitrator to correctly apply the law is not a basis for setting aside an arb itrator's award.' Kergosien, 390 F.3d at 356. `It is only when the arbitrator strays from in te rp re ta tio n and application of the agreement and effectively dispenses his own brand of in d u s tria l justice that his decision may be unenforceable.' Major League Baseball Players A s s o c . v. Garvey, 532 U.S. 504, 509 (2001)(quoting Steelworkers v. Enter. Wheel & Car C o r p ., 363 U.S. 593, 597 (1960) (internal quotation marks omitted)). Moreover, `the a rb itra to r's selection of a particular remedy is given even more deference than his reading o f the underlying contract,' and `the remedy lies beyond the arbitrator's jurisdiction only if th e re is no rational way to explain the remedy as a logical means of furthering the aims of the c o n tr a c t .' Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th Cir.1994) (internal q u o ta tio n marks omitted)." American Laser Vision, P.A. v. Laser Vision Institute, L.L.C., 4 8 7 F.3d 255, 258-259 (5 th Cir.,2007) abrogated on other grounds, 552 U.S. 576 (2008). T h e party moving to vacate an arbitration award has the burden of proof. The court must re s o l v e any doubts or uncertainties in favor of upholding the award. Brabham v. A.G. E d w a r d s & Sons Inc., 376 F.3d 377, 385, n.9 (5th Cir.2004) (citing Action Indus., Inc. v. U.S. F id . & Guar. Co., 358 F.3d 337, 343 (5th Cir.2004)). In 2008, the Supreme Court decided Hall Street Associates v. Mattel, Inc., 552 U.S. 5 7 6 (2008), and held that the statutory grounds contained in the FAA, sections 10 and 11, are th e exclusive means by which an arbitral award may be vacated. Hall Street at 584. Pursuant t o Section 10(a) of the FAA, there are only four grounds for which a court can vacate an a rb itra tio n award: ( 1 ) [W]here the award was procured by corruption, fraud, or undue means; 5

(2 ) [W]here there was evident partiality or corruption in the arbitrators, or e ith e r of them; (3 ) [W]here the arbitrators were guilty of misconduct in refusing to postpone th e hearing, upon sufficient cause shown, or in refusing to hear evidence p e rtin e n t and material to the controversy; or of any other misbehavior by which th e rights of any party have been prejudiced; or (4 ) [W]here the arbitrators exceeded their powers, or so imperfectly executed th e m that a mutual, final, and definite award upon the subject matter submitted w a s not made. 9 U.S.C. § 10(a). In Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 350 (5 th C ir.,2 0 0 9 ), the Fifth Circuit held that the Hall Street Court ruled that "manifest disregard of th e law is no longer an independent ground for vacating arbitration awards under the FAA." Id . ("Hall Street restricts the grounds for vacatur to those set forth in § 10 of the Federal A rb itra tio n Act ... consequently, manifest disregard of the law is no longer an independent g rou n d for vacating arbitration awards under the FAA."). In 2010, the Supreme Court decided Stolt-Nielsen S.A. v. Animal Feeds International C o r p o r a tio n , 599 U.S. ----, 130 S.Ct. 1758, 1768 n. 3 (2010). In Stolt-Nielson, the Court c o n s id e r e d , inter alia, whether an arbitration panel has the authority to impose class a r b itr a tio n where an arbitration agreement is silent on the issue 3 because it viewed class a rb itra tio n as "the best rule to be applied in such a situation." Id. at 1769. The Court noted th a t the arbitration panel failed to inquire whether the FAA, maritime law, or state law p r o v i d e d any instruction as to interpretation of the agreement. Id. at 1768-69. Rather, the p a n e l merely "impose[d] its own policy preference." Id. at 1770. The Court held that the a rb itra tio n panel exceeded its powers by imposing its own policy choice "instead of

In Stolt-Nielsen, the parties had stipulated that the agreement was silent on whether it permitted or precluded class arbitration.

3

6

id e n tif yin g and applying a rule of decision derived from the FAA or either maritime or [state] la w ." Id. III. Analysis G a m b ro moves the Court to re-open this administratively terminated case to vacate tw o arbitral decisions - the October 4, 2007 Clause Construction Award, and the June 7, 2010 o rd e r denying Gambro's motion to reconsider the October 2007 Clause Construction Award. G am b ro asserts that the decisions conflict with and manifestly disregard the Supreme Court's A p ril 27, 2010 decision in Stolt-Nielsen, holding that class arbitration may not be imposed w h e re an arbitration agreement is silent as to class arbitration. 130 S.Ct. at 1775 ("[A] party m a y not be compelled under the FAA to submit to class arbitration unless there is a c o n tra c tu a l basis for concluding that the party agreed to do so."). In particular, Gambro a r g u e s that the Panel concluded in its October 5, 2007 Clause Construction Award that B C B S L A and Gambro agreed to class arbitration because their arbitration agreement was s ile n t on class arbitration. B C B S L A asserts that Stolt-Nielsen is inapposite because (1) the decision does not a p p ly retroactively to the 2007 Clause Construction Award, a final, non-reviewable decision; (2 ) Gambro waived its right to seek review of the decision under Rule 3 of the American A rb itra tio n Association ("AAA") Supplementary Rules for Class Arbitrations; (3) the Panel c o r re c tly determined that rehearing was barred by the functus officio doctrine; and, (4) the c a se is plainly distinguishable both because the arbitration clauses are different and the Panel in this case "did exactly what the Supreme Court in Stolt-Neilsen chided the arbitration panel th e re for not doing: it interpreted the agreement in accordance with the state law and AAA ru le s the parties selected, rather than trying to divine how public policy would answer the 7

q u e stio n ." BCBSLA further asserts that Section 12 of the Federal Arbitration Act ("FAA") d e m a n d s that a motion to vacate be filed "within three months after the award is filed or d e liv e re d ." 9 U.S.C. §12. Because the jurisdictional deadline expired on January 5, 2008, n in e ty (90) days following delivery of the Clause Construction Award on October 5, 2007, th e Court has no authority to now vacate the award. The Court will consider these arguments in turn. 1 . Section 12 of the FAA S e c tio n 12 of the FAA requires that a "[n]otice of a motion to vacate, modify, or c o rr e c t an award must be served within three months after the award is filed or delivered." 9 U.S.C. § 12. The parties have not cited, and the Court is unaware of, any Fifth Circuit ju risp ru d e n c e addressing Gambro's position that the Court should grant its motion to vacate th e Panel's Clause Construction Award after the 90-day deadline under Section 12 of the F A A . In Cigna Ins. Co. v. Huddleston, 986 F.2d 1418 (5th Cir.1993), the Fifth Circuit r e f u s e d to consider the defendant's defenses to an arbitration award based on untimeliness, a s they were raised beyond the three-month period of limitation under Section 12: [ T ] h e failure of a party to move to vacate an arbitral award within the th re e -m o n th limitations period prescribed by section 12 of the United States A r b itr a tio n Act bars him from raising the alleged invalidity of the award as a d e f en s e in opposition to a motion brought under section 9 of the [United States A rb itra tio n Act] to confirm the award. Id . As noted by the Cigna court, other federal courts of appeals that have confronted pleas f o r extension of the deadline imposed by Section 12 have uniformly declined to grant such a n extension. See, e.g. Pfannenstiel v. Merrill Lynch, 477 F.3d 1155, 1158 (10 th Cir.2007) (f a ilu re to file within three months waived judicial review, and loss of evidence did not toll

8

d e a d lin e ); Hart Surgical, Inc. Ultracision, Inc., 244 F.3d 231, 235 (1 st Cir. 2001) (holding th a t by failing to seek vacatur of a final interim award upon its issuance a party "forfeits" its rig h t to "appeal" that award); Taylor v. Nelson, 788 F.2d 220, 225 (4 th Cir.1986) (once the th re e -m o n th period has expired, an attempt to vacate an arbitration award could not be made e v e n in opposition to a later motion to confirm arbitration award); Florasynth, Inc. v. P ick h o lz, 750 F.2d 171, 174 (2d Cir.1984) (Section 12 precludes "a motion to vacate, modify, o r correct an arbitration award after the three month period has run, even when raised as a d ef en se to a motion to confirm."). G a m b r o argues that "neither the plain language of the FAA nor federal judicial d e c is io n s construing the FAA expressly address how Section 12 applies to an ongoing a rb itra tio n , such as this one, where a subsequent clarification of the law undermines the a rb itra to r's powers to have decided an earlier, interim award." R. 35. Gambro's argument is to no avail. The language of Section 12 of the FAA is clear. The parties have three m o n th s (90 days) to raise any alleged invalidity of the Panel's award. See e.g., Board of T r u s te e s of University of Illinois v. Organon Teknika Corp. LLC, 614 F.3d 372, 375 (7 th C ir.,2 0 1 0 ) ("[The arbitrator] did not tell the parties how long they had to use the opportunity h e contemplated, but the Federal Arbitration Act does: 90 days. 9 U.S.C. § 12. The parties d id not supersede that rule by contract. They bargained for a final and conclusive decision, n o t for perpetual arbitration. So the University's request came too late. This arbitration is o v e r ." ) . Moreover, Gambro had the opportunity to timely preserve its argument that the P a n e l exceeded its authority in issuing the Clause Construction Award by filing its objection w i th in the limitation period under Section 12, just as the petitioner in Stolt-Neilsen did by tim e ly arguing that the contract did not permit class arbitration. Because Gambro chose not 9

to file such an objection, the Court is powerless to hear it now. 2 . Gambro's Motion For Reconsideration Under Stolt-Neilsen G a m b ro makes a number of arguments in support of its position that the Court should v ac ate the Panel's decisions permitting class arbitration proceedings on BCBSLA's c e rtif ic a tio n motion in light of the Supreme Court's ruling in Stolt-Neilsen. Initially, Gambro a ss e rts that the Panel's order refusing to reconsider the Clause Construction Award exceeded its powers and was in "manifest disregard" of the holding in Stolt-Neilsen. "Hall Street u n e q u iv o c a lly held that the statutory grounds are the exclusive means for vacatur under the F A A . Our case law defines manifest disregard of the law as a nonstatutory ground for v a c a t u r. Thus, to the extent that manifest disregard of the law constitutes a nonstatutory g ro u n d for vacatur, it is no longer a basis for vacating awards under the FAA." Citigroup G lo b a l Markets, Inc. v. Bacon, 562 F.3d 349, 350 (5 th Cir.,2009) (internal citations omitted). B a s e d on Fifth Circuit jurisprudence, Gambro's motion under the standard of manifest d isre g a rd is to no avail. G a m b r o also argues that the functus officio doctrine is inapplicable because the a rb itra ti o n Panel's Clause Construction Award was not a "final award." Rule 46 of the C o m m e rc ia l Arbitration Rules of the American Arbitration Association ("Rule 46") provides th a t "[t]he arbitrator is not empowered to redetermine the merits of any claim already d e c id e d ." This rule essentially codifies the common law doctrine of functus officio, which b a rs an arbitrator from revisiting the merits of an award once the award has been rendered. B a r o u s s e v. Paper Allied-Industrial, Chemical & Energy Workers Intern. Union, 265 F.3d 1 0 5 9 *6 (5 th Cir.,2001). In denying Gambro's motion for reconsideration of the Clause Construction Award 10

b a se d on the Supreme Court's holding in Stolt-Neilsen, the Panel held that because Gambro d e c l in e d to move a court of competent jurisdiction to confirm or vacate the Clause C o n s tr u c tio n Award within 30 days, as required under Supplementary Rule 3, and because th e Award "was issued as a `Partial Final' ... [t]he doctrine of functus officio therefore bars th e Tribunal from rehearing the Clause Construction Award." R. 35, Exh. R. While the p a rtie s have not cited, and the Court is unaware of any Fifth Circuit jurisprudence c o n sid e rin g whether or not the doctrine of functus officio applies to a partial final award, in A n d e rm a n /S m ith Operating Co. v. Tennessee Gas Pipeline Co., 918 F.2d 1215, 1220 n.4 (5 th C ir. 1990) the court determined that the doctrine did not apply because the arbitration panel d id not attempt to alter the decision it had rendered. Id. (The doctrine of functus officio is d e s ig n e d to prevent an arbitrator from revisiting an award; it protects the finality of an a rb itrato r's decision). Other courts, however, have addressed the issue of whether or not a p a r t ia l final award, such as the Clause Construction Award in this case, is subject to the fu n c tu s officio doctrine and have held that the award may be deemed as such if the award s ta te s it is final and if the arbitrator intended the award to be final. Bosack v. Soward, 586 F .3 d 1096, 1103 (9 th Cir. 2009) ("The Eighth Circuit has held that an interim award may be d ee m ed final for functus officio purposes if the award states it is final, and if the arbitrator in te n d e d the award to be final. See, e.g., Legion Ins. Co. v. VCW, Inc., 198 F.3d 718, 720 (8 th C ir.1 9 9 9 ). We adopt the criteria used by the Eighth Circuit, and apply them to the instant ca se.").4 As evidenced by the language used by the Panel in its Clause Construction Award

See also, Trade & Transport, Inc. v. Natural Petroleum Charterers Inc., 931 F.2d 191, 195 (2d Cir.1991) ("if the parties agree that the panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so. Second, once arbitrators have finally decided the submitted issues, they are, in common-law parlance, `functus officio,' meaning that their authority

4

11

a s well as in its denial of Gambro's motion for reconsideration, there is no doubt that the C la u se Construction Award indicates it is a final determination and that the Panel intended th e Award to be final. The Panel correctly applied the functus officio doctrine in this matter. A c c o rd in g ly, the Court finds that Gambro waived its right to seek review of the C la u s e Construction Award under the thirty day limitation in Rule 3 of the AAA S u p p le m e n ta ry Rules; the functus officio doctrine barred the Panel's reconsideration of the A w a rd and Gambro's motion for vacatur is barred by the three month deadline under FAA S e c tio n 12. Even assuming arguendo that Gambro's motion is timely, however, the Court d isa g re e s with Gambro's position that Stolt-Neilsen "invalidates the reasoning and result of th e Panel's October 2007 Clause Construction Award." The Stolt-Neilsen action arose in the context of an antitrust dispute between StoltN e ils e n , S.A., the owner and operator of parcel tankers, and AnimalFeeds International C o r p o r a t io n , a cargo-shipper. In the Supreme Court's analysis, the Stolt-Nielsen majority n o ted that, following the Second Circuit's determination that the defendant's claims were s u b j e c t to arbitration, the parties entered into a stipulation stating that the arbitration clause w a s "`silent' with respect to class arbitration." s ig n if ic a n ce of the stipulation in stating: C o u n sel for AnimalFeeds explained to the arbitration panel that the term ` sile n t ' did not simply mean that the clause made no express reference to class a rb itratio n . Rather, he said, `[a]ll the parties agree that when a contract is s ile n t on an issue there's been no agreement that has been reached on that is s u e . S to lt- N e ils e n , 130 S. Ct. at 1766. The Stolt-Neilsen majority held that the arbitration panel The Supreme Court emphasized the

over those questions is ended").

12

"e x ce ed ed its powers" under FAA Section 10(a)(4). In reaching the decision, the Court s ta te d : B e c au s e the parties agreed their agreement was "silent" in the sense that they h a d not reached any agreement on the issue of class arbitration, the arbitrators' p ro p e r task was to identify the rule of law that governs in that situation. Had th e y engaged in that undertaking, they presumably would have looked either to the FAA itself or to one of the two bodies of law that the parties claimed w e re governing, i.e., either federal maritime law or New York law. But the p a n e l did not consider whether the FAA provides the rule of decision in such a situation; nor did the panel attempt to determine what rule would govern u n d e r either maritime or New York law in the case of a "silent" contract. In ste a d , the panel based its decision on post-Bazzle arbitral decisions that " c o n stru e d a wide variety of clauses in a wide variety of settings as allowing f o r class arbitration." The panel did not mention whether any of these d e c is io n s were based on a rule derived from the FAA or on maritime or New Y o rk law. Id . at 1768. The Court stated further, "[i]n sum, instead of identifying and applying a rule o f decision derived from the FAA or either maritime or New York law, the arbitration panel im p o s e d its own policy choice and thus exceeded its powers." Id. at 1770. The Court finds that Stolt-Neilsen is distinguishable from the case at bar. Unlike the S to lt-N e ils e n arbitration panel, the Panel in this case applied legal principals under the FAA, a s well as Louisiana law and AAA rules as required under the agreement between BCBSLA a n d Gambro; it did not try to ascertain what the best result could have been by imposing its o w n policy choices. Hence, unlike Stolt-Neilsen, the Panel in this case properly exercised its authority in rendering the Clause Construction Award and it must be upheld. Stolt-Neilsen a t 1767 ("It is only when [an] arbitrator strays from interpretation and application of the agreement and effectively `dispense[s] his own brand of industrial justice' that his decision may be

13

unenforceable.") With regard to Gambro's alternative motion, the Court will decline Gambro's in v itatio n to clarify its March 2006 Judgment in order to authorize BCBSLA to pursue only in d iv i d u a l claims against Gambro and to preclude BCBSLA from pursuing claims against G a m b ro on behalf of any proposed class. IV. Conclusion B a se d on the well-established jurisprudence setting out the Court's standard of review in vacating an arbitration panel's decision, as well as the foregoing analysis in this case, G a m b r o ' s Motion To Reopen The Case: (1) To Vacate Arbitrators' Awards Permitting Class P r o c e ed in g s ; Or, In The alternative, (2) To Clarify The Court's March 2006 Order Granting M o tio n To Compel Arbitration, will be denied.

14