COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Causey and White PUBLISHED
Argued at Richmond, Virginia
DEVIN J. GAROFALO OPINION BY v. Record No. 1303-23-2 JUDGE DORIS HENDERSON CAUSEY DECEMBER 30, 2024 JAYNE W. DI VINCENZO
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Jacqueline S. McClenney, Judge
Monica T. Monday (David R. Berry; Gentry Locke, on briefs), for appellant.
Henry I. Willett III (Belinda D. Jones; Christian & Barton, LLP, on brief), for appellee.
This appeal concerns a cross-petition to vacate the award of a panel of arbitrators. The
circuit court granted Jayne Di Vincenzo’s petition to confirm an arbitral award and denied Devin
Garofalo’s cross-petition to vacate. Garofalo argues that the circuit court erred by declining to
set aside the award on the grounds of an arbitrator’s “evident partiality” under Code
§ 8.01-581.010(2). Garofalo also argues that Di Vincenzo should not have been awarded
attorney fees.
On appeal, Garofalo does not argue that the arbitrator, Michael Glasser, was actually
biased toward either party. But he argues that the arbitrator’s failure to disclose prior
connections with Di Vincenzo requires that the award be vacated on the grounds of “evident
partiality.” We disagree, holding that the undisclosed information did not rise to the level of
“evident partiality.” Additionally, finding no error, we affirm the circuit court’s attorney fees
award. I. BACKGROUND
In March 2022, a panel of Financial Industry Regulatory Authority (FINRA) arbitrators
ruled for Di Vincenzo in a dispute with Garofalo over an asset purchase agreement. The
agreement had set the parameters for the sale of Di Vincenzo’s financial securities company,
Lions Bridge Financial Advisors, Inc., to Garofalo and his financial securities company, Colonial
River Wealth Management, LLC. The arbitration panel found Garofalo in default of obligations
under the agreement and awarded Di Vincenzo $1,548,638 in compensatory damages and
unremitted payments, $490,639 in attorney fees, and additional fees and costs.
In March 2022, Di Vincenzo moved to confirm the award in circuit court. In April 2022,
Garofalo cross-petitioned to vacate on the grounds of an arbitrator’s “evident partiality” under
Code § 8.01-581.010(2). Garofalo alleged that an arbitrator on the panel had failed to disclose a
prior relationship with Di Vincenzo.1 Di Vincenzo filed a responsive pleading denying the
allegations and requesting reimbursement for attorney fees incurred opposing the cross-petition.
Discovery followed, and the circuit court conducted two days of hearings in May 2023. In June
2023, the circuit court rejected Garofalo’s evident partiality argument and confirmed the arbitral
award. After receiving post-hearing briefing on the bifurcated attorney fees issue, the circuit
court awarded Di Vincenzo $333,613.50 in attorney fees.2
Prior to the arbitration, the arbitrator disclosed to the parties that he was on the Board of
Directors of Old Point Financial Corporation (Old Point) and one of Old Point’s wholly owned
1 Garofalo also argued to the circuit court that the arbitrator’s nondisclosure constituted “misconduct prejudicing the rights of any party” under Code § 8.01-581.010(2) and that the arbitrators exceeded their authority in ordering attorney fees that Garofalo alleged had already been awarded to Di Vincenzo. Garofalo did not assign error to the circuit court’s adverse rulings on either of these arguments. Accordingly, we do not address these issues in this opinion. 2 This attorney fees award was solely for litigation involving the confirmation of the arbitration award. It did not include the $490,639 previously awarded by the panel of arbitrators. -2- subsidiaries, Old Point National Bank, and that he was a shareholder of Old Point National Bank.
The arbitrator also disclosed his connections, largely as a shareholder or accountholder, to
fourteen other companies, including financial institutions. The arbitrator disclaimed any prior
relationships or interactions with either party to the arbitration. As Garofalo emphasized to the
circuit court and on appeal, Di Vincenzo and Lion’s Bridge had, in fact, once contracted with Old
Point Trust, Old Point’s other wholly owned subsidiary.
For fifteen months in 2014 and 2015, Di Vincenzo and Lion’s Bridge had provided
financial advisory services to Old Point Trust’s customers. Some of Old Point Trust’s customers
were also customers of Old Point National Bank, and the revenues of both subsidiary
organizations ultimately went to Old Point. Di Vincenzo and Lion’s Bridge expected to benefit
from the arrangement by receiving referrals for new customers, including from Old Point
National Bank. The relationship ended after fifteen months when neither party received the
benefit they had expected. Just before the relationship terminated, Lion’s Bridge and
Di Vincenzo had made almost $13,000 and Old Point had made $8,000. The arbitrator testified
that he did not disclose these connections because he did not recall Di Vincenzo or Lion’s
Bridge. Before taking the case, the arbitrator conducted a conflict check through his law firm’s
database and discovered no connections to either party. Additionally, as the arbitrator noted, he
was not and had never been on the Board of Directors of Old Point Trust, the independent legal
entity that held a contractual relationship with Di Vincenzo and Lion’s Bridge.
The record included various additional details about the relationship between Lion’s
Bridge, Di Vincenzo, and Old Point Trust. Lion’s Bridge financial advisors had been permitted
to use offices, as available, in Old Point Trust’s facilities, including a building in which the
arbitrator had an ownership interest, though they had no permanent offices in the facilities.
-3- Lion’s Bridge advisors would display placards advertising their company while meeting with
customers but would take them down when they left.
Additionally, the record showed that the arbitrator and Di Vincenzo attended the same
event on at least two occasions, at meetings of Old Point’s “Southside Regional Board,” a non-
fiduciary Board that the arbitrator chaired, which held community engagement meetings aimed
at attracting referrals to Old Point National Bank. The arbitrator did not separately disclose his
chairmanship of this Board, which he performed in his capacity as a member of Old Point
National Bank’s Board of Directors. A meeting agenda and minutes showed that at one of those
two meetings, the arbitrator introduced Di Vincenzo as a speaker for a presentation scheduled to
last fifteen minutes. Finally, the record established that as a member of Old Point’s Board of
Directors, the arbitrator would have received Old Point Trust documents that contained
references to Di Vincenzo and Lion’s Bridge. The references were made in Old Point Trust’s
monthly meeting minutes and executive reports and presented to Old Point’s Directors, in
binders containing hundreds of pages of other documents, one or two days before board
meetings, before being returned by Directors at the meetings. The arbitrator testified that he did
not recall ever having met or introduced Di Vincenzo. Nor did he recall having read about
Di Vincenzo or Lion’s Bridge.
Before the circuit court, the arbitrator unequivocally stated, “I stand by my oath.” He
emphasized that he simply did not recall any interactions with either party prior to the arbitration
and noted that, if he had been aware of Old Point Trust’s connections with Di Vincenzo and
Lion’s Bridge, “I certainly would have disclosed it, and I likely would not have been involved in
this case.” When asked whether this was “because you recognize that it creates an appearance
that would call into question whether you would be impartial,” the arbitrator said, “I think that’s
fair.” -4- On June 8, 2023, the circuit court confirmed the award. In a written order, the circuit
court found that the arbitrator “is not and was not directly involved with Old Point Trust,” that
there had been at least four years between the ending of the relationship between Old Point Trust
and Lion’s Bridge, and that the arbitrator “does not recall ever meeting [Di Vincenzo] prior to the
arbitration.” Di Vincenzo v. Garofalo, No. CL22-975, at 2-3 (Va. Cir. Ct. June 8, 2023) (order)
(Di Vincenzo). The court then proceeded to the legal question presented, whether the
undisclosed connections showed “evident partiality” requiring vacatur of the award under Code
§ 8.01-581.010(2), the Virginia Uniform Arbitration Act (VUAA). The VUAA provides that
“upon application of a party, the court shall vacate an [arbitrator’s] award where . . . there was
evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or
misconduct prejudicing the rights of any party.” Code § 8.01-581.010(2) (emphasis added).
The circuit court noted that Virginia courts had not established a test for “evident
partiality.” Observing that the Federal Arbitration Act (FAA) also permits vacatur of arbitral
awards for “evident partiality” and that the Supreme Court of Virginia has cited FAA cases to
help construe the VUAA, the circuit court proceeded to apply the Fourth Circuit’s “evident
partiality” test. Di Vincenzo, at 4 (citing McMullin v. Union Land & Mgmt. Co., 242 Va. 337
(1991)). The circuit court quoted the Fourth Circuit’s standard that “the ‘party seeking vacatur
must put forward facts that objectively demonstrate such a degree of partiality that a reasonable
person could assume that the arbitrator had improper motives.’” Id. (quoting ANR Coal Co. v.
Cogentrix of North Carolina, Inc., 173 F.3d 493, 501 (4th Cir. 1999)). And it quoted the Fourth
Circuit’s four-factor test:
(1) the extent and character of the personal interest, pecuniary or otherwise of the arbitrator in the proceeding; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitration; and
-5- (4) the proximity in time between the relationship and the arbitration proceeding.
Id. (quoting ANR Coal, 173 F.3d at 500).
The circuit court noted that in reviewing each factor, the court should assess “whether the
asserted bias is ‘direct, definite and capable of demonstration rather than remote, uncertain or
speculative’ and whether the facts are sufficient to indicate ‘improper motives on the part of the
arbitrator.’” Id. (quoting ANR Coal, 173 F.3d at 500).
Applying the Fourth Circuit’s test, the circuit court found (1) that “Respondent has not
demonstrated that Arbitrator Glasser had any interest in the proceeding, whether personal,
pecuniary, or otherwise.” Id. It rejected Garofalo’s argument that the arbitrator once stood to
profit, as a shareholder of Old Point National Bank, from Di Vincenzo’s work with Old Point
Trust, characterized the connection between the arbitrator, in his former role as an Old Point
director, and Old Point Trust as “tenuous,” and noted that the arbitrator had disclosed this role to
the parties. Id. at 5. The court added, “it is unclear how Arbitrator Glasser could possibly
benefit from the arbitration proceeding.” Id. at 5. The court then found (2) that the record
showed only “one minor direct relationship between Arbitrator Glasser and the Petitioner, that of
an introducer to the person who is being introduced.” Id. at 6. The court found (3) “a tenuous
connection” between that relationship and the arbitration. Id. And the court found (4) that over
five years had passed between the end of the relationship between the arbitrator and Di Vincenzo
and the arbitration. Id. at 7.3 The court found that the assertions of the arbitrator’s bias were
thus “remote, uncertain or speculative,” that the “facts in the present case are insufficient to
3 In assessing the fourth factor, the circuit court concluded that five years had passed by comparing the date of the arbitration’s commencement with April 21, 2015, the date when the arbitrator introduced Di Vincenzo at an event. The over four-year difference stated elsewhere is based on the date when the Lion’s Bridge relationship ended, in December 2015. -6- indicate ‘improper motives on the part of the arbitrator,’” and that “Respondent has failed to put
forward facts that objectively demonstrate such a degree of partiality that a reasonable person
could assume that the arbitrator had improper motives.” Id. at 5, 13. Therefore, the court denied
Garofalo’s cross-petition to vacate. Id.4 And, after post-hearing briefing, the circuit court
granted Di Vincenzo $333,613.50 in attorney fees spent litigating the confirmation of the award.
Garofalo timely noted his appeal of the circuit court’s award, arguing that (1) the circuit
court erred in ruling that there was no “evident partiality by an arbitrator appointed as a neutral”
under Code § 8.01-581.010(2) and that (2) the circuit court erred “in awarding Di Vincenzo
attorney fees for the confirmation proceeding, and in finding that Di Vincenzo complied with
Rule 3:25.”
II. ANALYSIS
A. The Evident Partiality Standard Under the Virginia Uniform Arbitration Act
To begin, we must address the meaning of “evident partiality” under Code
§ 8.01-581.010(2). On appeal, Garofalo argues that the circuit judge misconstrued the “evident
partiality” standard and that “evident partiality” under the VUAA requires only a showing that an
arbitrator failed to disclose facts that “might create an impression of possible bias.”
Di Vincenzo, by contrast, argues that “evident partiality” under the VUAA requires vacatur only
when “a reasonable person would have to conclude that an arbitrator was partial,” as the Fourth
Circuit has required in interpreting the FAA. Both parties agree that “evident partiality” has not
yet been construed by our state’s appellate courts. The meaning of the term “evident partiality”
under the VUAA is a legal question that we review de novo. See Quyen Vinh Phan Le v.
Commonwealth, 65 Va. App. 66, 76 (2015). For the following reasons, we agree with the circuit
4 The trial court also rejected Garofalo’s arguments regarding “Misconduct Prejudicing the Rights of Any Party” and the arbitration panel’s award of attorney fees. See supra note 1. -7- court and Di Vincenzo. We adopt the Fourth Circuit’s ANR Coal interpretation of “evident
partiality.”
1. “Evident Partiality” in the VUAA and FAA
The VUAA provides that “upon application of a party, the court shall vacate an
[arbitrator’s] award where . . . [t]here was evident partiality by an arbitrator appointed as a
neutral, corruption in any of the arbitrators, or misconduct prejudicing the rights of any party.”
Code § 8.01-581.010(2) (emphasis added). This provision mirrors, almost word for word, the
arbitrator disqualification provision of the FAA, which reads, in relevant part:
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
....
(2) where there was evident partiality or corruption in the arbitrators, or either of them[.]
9 U.S.C. § 10(a)(2) (emphasis added).
Neither this Court nor the Virginia Supreme Court has interpreted the language of either
provision. Therefore, this case presents an issue of first impression for us. 5
2. The Fourth Circuit’s Interpretation of Evident Partiality
The Fourth Circuit has an established definition of, and test for, “evident partiality.” In
the Fourth Circuit, “evident partiality” under the FAA is established only when the party seeking
vacatur demonstrates “that a reasonable person would have to conclude that an arbitrator was
partial to the other party to the arbitration,” or, in other words, has “put forward facts that
5 In a decision not binding on this Court, the Circuit Court for the City of Richmond applied the Fourth Circuit’s standard for “evident partiality” under the FAA in the VUAA context. See Williams Trading LLC v. Manaster, 111 Va. Cir. 240, 254 (Richmond City 2023). -8- objectively demonstrate such a degree of partiality that a reasonable person could assume that the
arbitrator had improper motives.” ANR Coal, 173 F.3d at 500-01 (quoting Consolidation Coal
Co. v. Local 1643, United Mine Workers of Am., 48 F.3d 125, 129 (4th Cir. 1995)). It has also
stated that courts should examine four factors in determining evident partiality:
(1) the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator in the proceeding; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitration; and (4) the proximity in time between the relationship and the arbitration proceeding.
Id. at 500 (quoting Consolidation Coal, 48 F.3d at 130).
The Fourth Circuit’s interpretation followed from its acceptance of Justice White’s
concurrence as the holding of the United States Supreme Court’s fractured decision in
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968). In that case,
six justices agreed to vacate an award due to an undisclosed relationship between an arbitrator
and an arbitral party even though the petitioner did not allege that the arbitrator was actually
biased. Id. at 147-48. But the majority split, four to two, on the meaning of the “evident
partiality” standard they were applying. Justice Black’s four-justice plurality opinion interpreted
“evident partiality” to require disclosure of “any dealings that might create an impression of
possible bias” and to prohibit arbitral bodies “that might reasonably be thought biased against
one litigant and favorable to another.” Id. at 149, 150 (emphases added). The plurality opinion
borrowed from judicial ethics standards and argued that “we should, if anything, be even more
scrupulous to safeguard the impartiality of arbitrators than judges.” Id. at 149. Justice White,
concurring with Justice Marshall, stated that he joined in Justice Black’s “opinion” but rejected
any equivalence with judicial standards. Id. at 149, 150. And the concurrence agreed to vacate
only because the undisclosed relationships concerned an arbitrator’s “substantial interest in a
-9- firm which has done more than trivial business with a party.” Id. at 151-52. For Justice White,
the breadth of business relationships likely to be held by a qualified arbitrator in his industry
required limitations on the disclosure requirement. Id. at 151 (“He [an arbitrator] cannot be
expected to provide the parties with his complete and unexpurgated business biography.”). Many
courts have found this divergence to be material. See, e.g., Morelite Constr. Corp. v. N.Y. City
Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 83 n.3 (2d Cir. 1984) (“[T]he two opinions
are impossible to reconcile . . . .”).
In a line of cases, the Fourth Circuit has interpreted the FAA’s “evident partiality”
standard in accordance with Justice White’s concurrence, and has thus distinguished “evident
partiality” from the mere possibility of an “appearance of bias” and limited the undisclosed
relationships requiring vacatur to those that would lead a reasonable person to conclude that the
arbitrator was partial. See Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141,
146 (1993); Consolidation Coal, 48 F.3d at 129; ANR Coal, 173 F.3d at 500-01. Most circuits
that have considered the issue have reached the same conclusion. See Petition for Writ of
Certiorari, Monster Energy Co. v. City Bevs., LLC, 141 S. Ct. 164 (2020) (No. 19-1333), 2020
U.S. S. Ct. Briefs LEXIS 5853, at *27, *31 (“The First, Second, Third, Fourth, Fifth, and Sixth
Circuits require those seeking vacatur of an arbitration award for evident partiality to show that
‘a reasonable person would have to conclude that an arbitrator was partial to one party to the
arbitration.’ . . . By contrast, the Ninth and Eleventh Circuits have adopted a much less
demanding, ‘reasonable impression of partiality’ standard.”); JCI Commc’ns, Inc. v. Int’l Bhd. of
Elec. Workers, Local 103, 324 F.3d 42, 51 (1st Cir. 2003); Morelite, 748 F.2d at 84; Freeman v.
Pittsburgh Glass Works, LLC, 709 F.3d 240, 251-53 (3d Cir. 2013); Positive Software Sols., Inc.
v. New Century Mortg. Corp., 476 F.3d 278, 283 (5th Cir. 2007); Nationwide Mut. Ins. Co. v.
Home Ins. Co., 429 F.3d 640, 644 n.5 (6th Cir. 2005). - 10 - 3. Analysis of the Fourth Circuit’s Evident Partiality Standard
We are tasked with interpreting Virginia’s Uniform Arbitration Act, not the Federal
Arbitration Act. However, because the VUAA contains language almost identical to the FAA,
reviewing the Fourth Circuit’s reasoning in reaching its interpretation of “evident partiality” will
aid our own interpretation. The Fourth Circuit has reached its understanding of “evident
partiality” by working to define the United States Supreme Court’s holding in Commonwealth
Coatings.
First, the Fourth Circuit’s approach recognizes that Justice White’s concurrence should be
understood as the Supreme Court’s holding. When a Supreme Court decision is “fragmented”
and “no single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.’” Secret v. Commonwealth, 296 Va. 204, 222 (2018) (internal
quotation marks omitted) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). The
concurrence provided a narrower ground of decision and is therefore considered the holding of
the Court. See ANR Coal, 173 F.3d at 499 n.3 (“Because the vote of either Justice White or
Justice Marshall was necessary to create a majority, courts have given this concurrence particular
weight.”).
Second, the Fourth Circuit’s interpretation of “evident partiality” as requiring more than a
potential “impression of possible bias” follows from the reasoning of the Commonwealth
Coatings concurrence. The concurrence explicitly rejected the analogy to judicial standards
undergirding the plurality’s strict interpretation. Commonwealth Coatings, 393 U.S. at 150
(White, J., concurring) (“The Court does not decide today that arbitrators are to be held to the
standards of judicial decorum of Article III judges, or indeed of any judges.”). It set forth
substantiality and triviality requirements limiting the undisclosed relationships that require - 11 - vacatur. Id. at 151-52. And, read holistically, the concurrence requires a pragmatic approach
incompatible with a requirement to vacate for a potential impression of possible bias. Justice
White was unwilling to accept that the failure to disclose “[in]substantial” interests in a firm or
“trivial” business dealings justified vacatur because he recognized that the arbitration system
needs arbitrators with deep connections in the relevant industries. Id. at 150 (“It is often because
[arbitrators] are men of affairs, not apart from but of the marketplace, that they are effective in
their adjudicatory function.”). Justice White explained that while he hoped that requiring pre-
arbitration disclosures would prevent “a suspicious or disgruntled party [from later] seiz[ing] on
[them] as a pretext for invalidating the award,” he recognized that “an arbitrator’s business
relationships may be diverse indeed, involving more or less remote commercial connections with
great numbers of people,” and therefore emphasized that an arbitrator “cannot be expected to
provide the parties with his complete and unexpurgated business biography.” Id. at 151.
Requiring vacatur for undisclosed facts that could create an impression of possible bias is
incompatible with this caveat and with the animating concerns of Justice White’s concurrence.
The Fourth Circuit’s test, whether “a reasonable person would have to conclude that an
arbitrator was partial to the other party to the arbitration,” ANR Coal, 173 F.3d at 500, follows
from the Commonwealth Coatings concurrence. It requires more than the mere possibility of an
impression of possible bias but does not rise to the level of requiring proof of actual bias. And,
consistent with the substantiality and triviality requirements, it focuses on the significance of the
undisclosed relationship. Thus, we are persuaded that the Fourth Circuit’s rule provides a strong
interpretation of the Supreme Court’s holding in Commonwealth Coatings.
In assessing the Virginia legislature’s intention when it incorporated the term “evident
partiality” from the federal law in 1986, we find the meaning that the Commonwealth Coatings
concurrence gave the term in 1968 to provide useful background. A second clue for us is the - 12 - plain language of the term that the legislature adopted. “In interpreting [a] statute, courts apply
the plain meaning . . . unless the terms are ambiguous or applying the plain language would lead
to an absurd result.” Taylor v. Commonwealth, 298 Va. 336, 341 (2020) (alterations in original)
(internal citations omitted) (quoting Baker v. Commonwealth, 284 Va. 572, 576 (2012)). The
plain language of the question whether “there was evident partiality by an arbitrator” would
concern the conclusions that one would draw regarding bias, not just possible impressions. In
light of the plain language of the VUAA and the Commonwealth Coatings concurrence, we are
persuaded that the Fourth Circuit’s test of evident partiality is the best interpretation of that term .
Garofalo advances two main counterarguments. 6 First, he argues that we should interpret
Commonwealth Coatings pursuant to a number of federal circuit court and state court decisions
issued between Commonwealth Coatings and Virginia’s adoption of the VUAA in 1986 that
quoted what Garofalo calls the plurality’s “possible impression” standard. Garofalo argues that
these cases show that prior to the VUAA’s passage, “evident partiality” was shown whenever an
arbitrator failed to disclose a fact that “might reasonably create the impression or appearance of
bias.” And, for Garofalo, this legal background should be understood as the meaning that
Virginia’s legislature adopted when it passed the VUAA.
We are not persuaded that these cases should guide our statutory interpretation. As
Garofalo acknowledges, there was not unanimity in the courts’ pre-1986 interpretation of
“evident partiality.” See Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 682 (7th Cir. 1983)
(“Justice White, concurring, purported to join Justice Black’s opinion but actually took a quite
6 Both parties also cite Virginia’s decision not to adopt the Revised Uniform Arbitration Act (RUAA) in 2003. The RUAA contained many sections pertaining to different aspects of arbitration beyond evident partiality. See S.B. 307, 2003 Sess. (Va. 2003). The legislature provided no explanation for its decision not to adopt the RUAA. For this reason, we find it difficult to infer any specific legislative intent from the legislature’s non-adoption of the RUAA. - 13 - different tack . . . [and,] since his vote was essential to a majority, what he said the Court did not
decide the Court did not decide, whatever Justice Black may have hoped . . . .”); Morelite, 748
F.2d at 84 (“[W]e hold that ‘evident partiality’ within the meaning of 9 U.S.C. § 10 will be found
where a reasonable person would have to conclude that an arbitrator was partial to one party to
the arbitration.”). We do not have evidence to support the inference that the Virginia legislature
relied on the other decisions that Garofalo cites when it adopted the VUAA. It is more
reasonable to presume that our legislature was aware of the plain language of the term “evident
partiality” and knew of the United States Supreme Court’s Commonwealth Coatings concurrence
and its exhortations of caution before setting aside arbitral awards.
Garofalo also argues that the plurality’s standard should apply to nondisclosure cases and
that the “reasonable person would have to conclude” standard, if applicable at all, should be
confined to cases in which the arbitrator’s nondisclosure is not at issue. Garofalo points to the
concurrence’s statement that “arbitrators are not automatically disqualified by a business
relationship with the parties before them if both parties are informed of the relationship in
advance, or if they are unaware of the facts but the relationship is trivial. I see no reason to
automatically disqualify the best informed and most capable arbitrators.” Commonwealth
Coatings, 393 U.S. at 150. For Garofalo, this statement indicates that the only question that
Commonwealth Coatings “left open” was whether awards should be vacated if arbitrators do
make disclosures but the appearance of bias remains.
We are not persuaded. The Commonwealth Coatings concurrence did not only require a
high bar for disqualifying arbitrators who have disclosed conflicts. It also limited the scope of
the disclosure requirement—explicitly rejecting one that would disqualify for undisclosed
insubstantial or trivial relationships. See id. at 151-52. Justice White emphasized that
arbitrators, because they must be steeped in the field and thus will have manifold relationships - 14 - within it, “cannot be expected to provide the parties with [their] complete and unexpurgated
business biography.” Id. at 151. And generally, there is no reason to think that “evident
partiality” means something different when the issue is nondisclosure; nondisclosure is one form
of evidence of evident partiality. See Freeman, 709 F.3d at 254 (“The [FAA] does not
distinguish between actual-bias and nondisclosure cases—instead, it condemns ‘evident
partiality’ in all cases.”). Commonwealth Coatings and the VUAA’s plain language support a
uniform meaning for “evident partiality.”
Finally, we observe that the Fourth Circuit’s four-part test provides a helpful guide to
answering the evident partiality question. The assessment of whether a party has shown that “a
reasonable person would have to conclude that an arbitrator was partial” is helped by an
evaluation of the degree and quality of an arbitrator’s personal interest in a case, by a
consideration of the directness and temporal remoteness of an undisclosed arbitrator-party
relationship, and by a consideration of the relevance of the relationship to the arbitration. See
ANR Coal, 173 F.3d at 500-01. Additionally, reviewing each link in light of “whether the
asserted bias is ‘direct, definite, and capable of demonstration rather than remote, uncertain or
speculative’ and whether the facts are sufficient to indicate 7 ‘improper motives on the part of the
arbitrator’” helps assess what conclusions a reasonable person would draw. See id. at 500
(quoting Consolidation Coal, 48 F.3d at 129). Thus, in reviewing the circuit court ruling, we will
apply the ANR Coal test for “evident partiality” and make use of its four factors.
B. “Evident Partiality” in this Case
On appeal, Garofalo argues that the arbitrator’s nondisclosure of Old Point Trust’s past
connections to Di Vincenzo and Lion’s Bridge, of his introduction of Di Vincenzo at a meeting,
7 Consistent with the remainder of ANR Coal, the word “indicate” should be read to limit the test to the conclusions that a reasonable person would draw, not to test actual bias. - 15 - and of his attendance at two meetings at which Di Vincenzo was present require vacatur for
“evident partiality.” In assessing Garofalo’s arguments, we review “the trial court’s application
of the law de novo” but are “bound by the trial court’s factual findings unless those findings are
plainly wrong or unsupported by the evidence.” Malbrough v. Commonwealth, 275 Va. 163,
168-69 (2008).
Applying the Fourth Circuit’s test for evident partiality stated in ANR Coal, we affirm the
circuit court’s confirmation of the arbitration award. The arbitrator’s undisclosed connections
with Di Vincenzo and Lion’s Bridge were not significant enough that “a reasonable person would
have to conclude that the arbitrator was partial.” See ANR Coal, 173 F.3d at 500 (quoting
Consolidation Coal, 48 F.3d at 129).
First, as the trial court found, the record in this case indicates that the “extent and
character of the [arbitrator’s] personal interest, pecuniary or otherwise, of the arbitrator in the
proceeding” was negligible. Id. (quoting Consolidation Coal, 48 F.3d at 130). The relationship
between Old Point Trust and Lion’s Bridge had been over for at least four years by the time of
the arbitration’s commencement. The arbitrator never had supervisory authority over Old Point
Trust, the legal entity with which Lion’s Bridge had contracted in 2014 and 2015. The arbitrator
may have once derived some indirect benefit from Old Point Trust’s arrangement as a
shareholder of Old Point National Bank, but that benefit would have been minor. That Old Point
as a whole made only $8,000 from the relationship further supports this point. The record
supports the trial court’s finding that the arbitrator held no contemporaneous financial interest in
Lion’s Bridge and formerly held only a “tenuous” interest in Lion’s Bridge’s success. This
interest does not indicate “improper motives on the part of the arbitrator.” Any possibility of bias
resulting from this prior relationship depends on conjecture and is thus “speculative.” See id.
(quoting Consolidation Coal, 48 F.3d at 129). - 16 - Second, the “[in]directness” of the connections between the arbitrator and Di Vincenzo
also favor affirming the circuit court’s decision. Id. (quoting Consolidation Coal, 48 F.3d at
130). The record supports the trial court’s finding that the prior financial relationship between
the arbitrator and Di Vincenzo, stated above, was “indirect” as well as “tenuous.” And, as the
circuit court found, the one direct relationship between them that we can garner from the
record—that between an introducer and the one introduced, at Old Point’s Southside Regional
Board—was quite minor. The fact that the arbitrator did not separately disclose his participation
on that nonfiduciary board, which occurred in the arbitrator’s disclosed capacity as a Director of
Old Point National Bank’s Board of Directors, does not increase the significance of this
connection. Third, turning to the relationship between the connections and the arbitration, while
the undisclosed connections and the arbitration both concerned Lion’s Bridge, nothing in the
record indicates that the undisclosed connections related to the sale of Lion’s Bridge or to either
party’s conduct following the sale. And fourth, as previously stated, the relationship concluded
at least four years prior to the beginning of the arbitration. 8
8 Garofalo also argues that the arbitrator did not comply with the FINRA Rules and the “FINRA Dispute Resolution Services Arbitrator’s Guide” and that this failure indicates evident partiality on the part of the arbitrator. In particular, Garofalo points to FINRA Rule 12405(a)(2), which requires arbitrators to “make a reasonable effort to learn of . . . any circumstances which might preclude the arbitrator from rendering an objective and impartial determination in the proceeding, including . . . any existing or past . . . relationships . . . with any party . . . that are likely to affect impartiality or might reasonably create an appearance of partiality or bias.” (Emphases added). He also points to FINRA Arbitrator’s Guide’s statement that “the duty to disclose is ongoing.” Garofalo argues that the arbitrator should have contacted Old Point to ask about possible conflicts once he learned that the proceeding involved a financial business, and Lion’s Bridge in particular. “If anything,” Garofalo argues, “the Arbitrator’s failure to investigate contributes to the impression or appearance of bias in this case.” We are not persuaded. Even assuming that the arbitrator was not permitted by FINRA to rely on his law firm’s conflict check, his failure to investigate further would not lead a reasonable person to conclude that he was biased. The relationship was remote, and there is no reason to doubt the arbitrator’s testimony that he did not recollect Di Vincenzo or Lion’s Bridge. A reasonable person would likely conclude that the arbitrator, believing he had done his due diligence, proceeded to the arbitration without prejudice toward either party. - 17 - Overall, a reasonable person would not have to conclude from the arbitrator’s
nondisclosure of prior connections with Di Vincenzo that he was partial toward either party. The
arbitrator’s testimony was that he would likely not have participated in the arbitration if he had
been aware of the connections because he thought that the connections could create an
impression of possible bias. This testimony does not indicate that the arbitrator’s nondisclosure,
where he was not aware of the connections, would lead a reasonable person to conclude that he
was biased or had improper motives. An entirely reasonable conclusion from the record is that
the arbitrator simply did not recall any connection to Di Vincenzo or Lion’s Bridge and that he
never received more than a minor and indirect benefit from any business relationship with them.
Affirming this arbitration award in accordance with the Fourth Circuit’s standard reflects the fact
that, as Justice White wrote in Commonwealth Coatings, the relationships possessed by a
qualified arbitrator in his or her field “may be diverse indeed, involving more or less remote
connections with great numbers of people,” and that therefore, the arbitrator “cannot be expected
to provide the parties with his complete and unexpurgated business biography.” Commonwealth
Coatings, 393 U.S. at 151. We affirm the circuit court’s holding that the undisclosed connections
did not rise to the level of “evident partiality.”
C. Attorney Fees
Finally, Garofalo argues that Di Vincenzo should not have been awarded attorney fees for
litigating the confirmation of the arbitration award in circuit court. On appeal, Garofalo makes
three arguments. First, Garofalo argues that Di Vincenzo failed to comply with Rule 3:25
because she did not assert her request for attorney fees in her motion to confirm arbitration
award. Second, he argues that Di Vincenzo’s inclusion of language in her motion to confirm
stating, “Any and all claims for relief not specifically addressed herein, including any requests
for injunctive relief, declaratory relief, and punitive damages, are denied,” had the effect of - 18 - barring her from asking for attorney fees in her responsive pleading. Third, he argued that
Di Vincenzo failed to comply with Rule 3:25 because she failed to “identify the basis upon
which the party relies in requesting attorney fees.”
Garofalo’s first argument was properly rejected by the circuit court below. Di Vincenzo
asserted her claim for attorney fees in her “Response in Opposition to [Garofalo’s] Cross-Petition
to Vacate.” The cross-petition to vacate was effectively a counterclaim in this action, and
Di Vincenzo’s response to it was effectively a responsive pleading. Therefore, as the circuit
court found, the attorney fees claim was asserted in a responsive pleading, as contemplated by
Rule 3:25. To hold otherwise would unnecessarily set more stringent rules for attorney fee
requests in proceedings to confirm arbitration awards than in other civil proceedings.
Garofalo’s second argument is also unavailing. The language regarding a denial of any
claims “not specifically addressed herein” appears at the end of the motion to confirm, where
Di Vincenzo evidently reproduced the language used by the FINRA arbitrators in her arbitration
award. The line Garofalo emphasizes, listed as number eight, follows a list of seven rulings,
both in the award and in the motion to confirm, stating Garofalo’s liability on Di Vincenzo’s
claims and the denial of Garofalo’s counterclaims before the arbitration panel. In context, the
language clearly refers to the arbitrators’ denial of unaddressed claims made before the FINRA
panel, not to Di Vincenzo’s disavowal of claims related to the circuit court confirmation
proceeding.
Garofalo’s third argument was never made to the trial court and is therefore not subject to
appellate review. Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable this Court to attain the ends of justice.”); Creamer v.
Commonwealth, 64 Va. App. 185, 195 (2015) (“The purpose of this contemporaneous objection - 19 - requirement is to allow the trial court a fair opportunity to resolve the issue at trial, thereby
preventing unnecessary appeals and retrials.”). While Garofalo did respond to Di Vincenzo’s
application for attorney fees by asserting a failure to meet Rule 3:25, his argument was that
Di Vincenzo failed to comply by omitting the request from her motion to confirm, not that she
failed to identify the basis of her award. Garofalo’s third argument for reversing the grant of
attorney fees is, therefore, waived.
III. CONCLUSION
For all of the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
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