In In re Sussex, 781 F.3d 1065 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth Circuit issued a writ of mandamus directing the district court to vacate its order removing the arbitrator in Sussex v. Turnberry/MGM Grand Towers, LLC, No. 2:08-cv-00773-MMD-PAL (D. Nev. Dec. 31, 2013), discussed in the Summer 2014 article “Pre-Award Removal of an Arbitrator.” The district court complied with the writ on April 8, 2015, reinstating the arbitrator more than five years after his initial appointment.

Sussex involved claims by hundreds of purchasers against a condominium developer and related entities. At the defendants’ request, the district court disqualified the single arbitrator due to his undisclosed involvement in a litigation financing business, finding that the arbitrator was disqualified under 9 U.S.C. § 10(a)(2) due to “evident partiality.” The plaintiffs sought a writ of mandamus from the Ninth Circuit ordering the district court to vacate its disqualification order.

In granting the writ, the Ninth Circuit discussed at length its opinion in Aerojet-General Corp. v. American Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973), in which it reversed a district court’s grant of mid-arbitration relief as to venue. However, the Aerojet-General court, unlike many sister circuits, declined to rule that such relief could never be available:

Extreme cases can be imagined in which the choice of locale for arbitration is not made in good faith and severe irreparable injury is inflicted on one or more of the parties. In such case the courts should be free to prevent a manifest injustice. For this reason we decline to hold that immediate judicial review of a ruling setting the place for arbitration is never justified. Only an extreme case could warrant such judicial review, and this is emphatically not such a case.

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