invoked 9 U.S.C. § 4, and my May 23, 1991 order directed "arbitration to proceed" in a consolidated form. Certification of an interlocutory appeal under § 1292(b) was neither sought nor granted.
Quite apart from these technicalities, the Second Circuit has made it plain that the law of the case doctrine may have no legitimate office to perform where a fundamental change in the governing law impacts directly upon the parties' rights and obligations. See Crane Co. v. American Standard, Inc., 603 F.2d 244 (2d Cir. 1979) (law of case doctrine did not require court of appeals to adhere to its prior holding that securities plaintiff had standing to sue, in light of Supreme Court's subsequent ruling that such plaintiffs lacked standing). The rationale of Crane renders inconsequential whether my May 23, 1991 order should be regarded as final or interlocutory, a question on which the parties expend much energy in their briefs. I apply the reasoning of Crane to the case at bar. I retained jurisdiction over this case to adjudicate any post-award applications. I am now presented with cross-motions to confirm and vacate the award. This court has not yet entered a final judgment. The Second Circuit's decision in Boeing announces a fundamental change, binding upon me, in that court's view of the propriety of consolidated arbitrations. What Nereus praised and encouraged, Boeing casts into outer darkness beyond hope of redemption. My order of consolidation, while correct under Nereus, must be perceived in the light of Boeing as improvidently made. Absent their consent, respondents could not legally be forced into a consolidated arbitration. They are entitled to redress at the hands of this court.
North River's invocation of waiver and estoppel depends primarily on the timing of the Boeing decision, dated June 29, 1993. North River chides respondents for keeping the decision and its rationale up their sleeves until the award came down against them on August 21, 1993. But the law reporting company upon which the profession relies did not publish Boeing in written form until September 13, 1993, after the award. It is in such advance sheets that recently decided cases are for the first time indexed and cross-referenced with respect to statute, rule and subject matter. The respondents' reply papers stop short of claiming that counsel did not know of the Boeing decision until after the award; and it was possible for them to learn of it earlier, through slip opinions disseminated by the court of appeals or the electronic marvels of this new computerized age. But the arbitration hearings, after prolonged discovery, were scheduled to begin on July 9, 1993, only ten days after the Second Circuit decided Boeing. I see nothing in this chronology or in any of the other circumstances of the case sufficient to raise an equitable bar against the relief respondents seek.
I think that these rather special circumstances require vacatur of the award and a remand for separate arbitrations de novo, whether or not the case falls precisely within one of the grounds for vacatur specified in § 10 of the FAA. But if such a ground is necessary to the result, I conclude that the arbitrators in the consolidated arbitration exceeded the powers conferred upon them by the parties' contracts, in violation of § 10(d). To be sure, the arbitrators acted in fulfillment of this Court's order; but Boeing makes it clear that, in all innocence, I exceeded my powers; and since the arbitrators derived their powers from my order, so did they.
Since there must be new and separate arbitrations, I do not reach the respondents' alternative grounds for vacatur based upon alleged improprieties in the conduct of the prior arbitration hearings.
It is in one sense regrettable that the time and resources expended on the first arbitration may have been partially wasted, although one hopes that by stipulation or otherwise much of the evidence discovered and presented may be utilized at the new arbitrations. However, the governing principle must be that declared by the Second Circuit in Boeing at 998 F.2d: "[The FAA] simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms" (citing and quoting Volt Info. Sciences v. Board of Trustees, 489 U.S. 468, 478, 103 L. Ed. 2d 488, 109 S. Ct. 1248 (1989)). Because the respondents at bar did not agree to a consolidated arbitration and objected to its imposition upon them, I am compelled to vacate the award. I have considered all of North River's arguments. They do not alter this conclusion.
For the foregoing reasons, the petitioner to confirm the arbitration award is denied. Respondents' cross-motion to vacate the award is granted. The parties are directed to proceed with separate arbitrations consistent with this Opinion. This Court retains jurisdiction.
It is SO ORDERED.
Dated: New York, New York
July 13, 1994
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE
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