Post-Arbitration Judicial Proceedings: Implementing Badgerow v. Walters and Returning to State Court

This CLE course will explore the significant changes in post-arbitration proceedings after the U.S. Supreme Court's rejection in Badgerow of "look through" federal jurisdiction. The program will address how the nature of post-arbitration review has been altered and what moving a substantial number of petitions for confirmation or vacatur off federal court dockets and onto those of state courts means. The program will offer insights about what practitioners should consider, including where to pursue either confirmation or vacatur of an arbitration award.

After a completed arbitration, one or both parties involved often seek judicial review of the arbitrator’s award: the prevailing party to confirm and the losing party to vacate. These post-arbitration filings are usually governed by the Federal Arbitration Act (FAA), which narrowly circumscribes judicial review of the arbitration award. So parties seek post-arbitration review in federal court.

But the FAA does itself confer federal subject matter jurisdiction on federal courts for post-arbitration proceedings or tell federal courts how to analyze whether they actually have jurisdiction. Different circuit courts have developed different analytical approaches. On Mar. 31, 2022, the U.S. Supreme Court issued Badgerow v. Walters, No. 20-1143, resolving this circuit split.

The Court's decision, grounded in FAA Sections 9 and 10, rejects the "look-through" approach for determining whether federal jurisdiction exists over a post-arbitration petition. But Badgerow does more than resolve the split in authority: it places state courts at the heart of post-arbitration proceedings.

The practical effect of Badgerow is that parties will more frequently be required to file post-arbitral motions in state court, even if an initial motion to compel arbitration was adjudicated in federal court. The Court's decision explicitly endorses this result, noting that "enforcement of the Act ... is left in large part to the state courts."

Listen as this experienced panel of litigators discusses how the Badgerow decision is expected to alter arbitration proceedings, what counsel must consider when seeking to compel arbitration, and how to enforce or challenge a resulting decision.