Matthew Iverson, a partner in Boston, authored the Law360 published article, "How To Avoid Risking Arbitration Award Confidentiality In NY." Below is an excerpt from the article:

"There has been a recent trend by counsel to use the Federal Arbitration Act's confirmation process to end-run arbitral confidentiality clauses. The process works like this: The prevailing party seeks to confirm the confidential award, whether satisfied or not; files that award under seal as an attachment to its confirmation motion; and then argues to the court that the award should be unsealed because a court docket's contents are presumptively public.

Because many courts do not like sealing documents, and a good deal of case law exists establishing a high bar for a sealing request, this approach has gained traction. In the Southern District of New York, for example, even parties who immediately paid their awards in full had those awards unsealed when claimants brought postpayment confirmation requests.

The U.S. Court of Appeals for the Second Circuit put a limit on this practice last year in Stafford v. International Business Machines Corp., but as illustrated in the Sept. 25 LXA Aviation decision, issues still remain."

Read the full article on Law360 here.