In Doscher v. Seaport, the Second Circuit held that the existence of federal-question jurisdiction over a Federal Arbitration Act (FAA) § 10 petition to vacate turns on whether the district court would otherwise possess jurisdiction over the underlying dispute, rather than a “face-of-the-petition” inquiry. This new adoption of the look through approach overturned Greenberg v. Bear, Stearns. The Second Circuit determined that the look through approach applies equally to § 10 and § 4 of the FAA by extension of the Supreme Court’s ruling in Vaden v. Discover Bank (covering motions to compel arbitration) to vacatur petitions. The Second Circuit reasoned that the jurisdictional context of Vaden, arising from underlying disputes, together with the practical consequences of failing to extend the look through approach to jurisdictional inquiries, justifies extending the look through approach to vacatur petitions. Furthermore, the congressional intent of a substantive review of arbitral awards, established in § 10, is satisfied by further application of the look through approach. The Second Circuit’s position is controversial in light of a Third Circuit case issued eleven days after the Doscher decision. In Goldman v. Citigroup, the Third Circuit held that an extension of the look through approach to § 10 petitions violates the federal interest in promoting the enforceability of arbitration agreements. The two cases differ in their interpretation and extension of Vaden, highlighting a need for clarification over the application of the look through approach to § 10 petitions.
Peter Nelson, DOSCHER: THE SECOND CIRCUIT FREES ITSELF FROM ITS PRIOR LOOK THROUGH APPROACH, FUELING A CIRCUIT SPLIT, 9 Arb. L. Rev. 279 (2017).