Norman Katz v. Herbert Feinberg, 290 F.3d 95 (2d Cir. 2002). · Go Syfert
Norman Katz v. Herbert Feinberg, 290 F.3d 95 (2d Cir. 2002). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 2 distinct cases, last quoted 2009 · …of the dominance of specific over general arbitration provisions.
75 citation events (75 in the last 25 years) across 16 distinct courts.
Strongest positive: Jetall Companies, Inc., 1001 WL LLC, Galleria Loop Noteholder LLC,Galleria 2425 Owner LLC, BDFI LLC, Ali Choudhri, Brad Parker, and Azeemah Zaheer v. Sonder USA Inc. (texapp, 2022-12-15)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
examined Cited as authority (rule) Jetall Companies, Inc., 1001 WL LLC, Galleria Loop Noteholder LLC,Galleria 2425 Owner LLC, BDFI LLC, Ali Choudhri, Brad Parker, and Azeemah Zaheer v. Sonder USA Inc. (3×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2022 · confidence medium
See, e.g., NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010, 1032 (2d Cir. 2014); Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002) (per curiam); ALLCAPCORP, Ltd. v. Sloan, No. 05- 20-00200-CV, 2020 WL 6054339 , at *3–5 (Tex. App.—Dallas Oct. 14, 2020, no pet.) (mem. op.); Lucchese Boot Co. v. Rodriguez, 473 S.W.3d 373 , 381–84 (Tex. App.—El Paso 2015, no pet.); Burlington Res.
cited Cited as authority (rule) Downing v. A&E Television Networks LLC
S.D.N.Y. · 2021 · confidence medium
See DDK Hotels, 6 F.4th at 322–23; NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010 , 1031–32 (2d Cir. 2014); Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002).
discussed Cited as authority (rule) DDK Hotels, LLC v. Williams-Sonoma, Inc.
2d Cir. · 2021 · signal: cf. · confidence medium
See Bucsek, 919 F.3d at 192-95 (incorporation of National Association of Securities Dealers ("NASD") rules, which require arbitration of arbitrability disputes, did not constitute clear and unmistakable evidence of intent to arbitrate arbitrability where the arbitration agreement did not cover disputes arising years after both parties terminated their relationship with the NASD); NASDAQ OMX, 770 F.3d 21 at 1031-32 (incorporation of AAA Rules did not constitute clear and unmistakable evidence of intent to arbitrate arbitrability where the arbitration clause was subject to a qualifying provision…
discussed Cited as authority (rule) FFC Mortgage Corp. v. Lo Bue
W.D.N.Y. · 2019 · confidence medium
However, that same analysis does not apply “where a broad arbitration clause is subject to a qualifying provision that at least arguably covers the present dispute.” Id. (citing Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002)).
discussed Cited as authority (rule) Alstom v. General Electric Co.
S.D.N.Y. · 2017 · confidence medium
And where, as here, “a single agreement contains both a broadly worded arbitration clause and a specific clause assigning a certain decision to an independent accountant,” it “cannot” be said “that the parties’ intention to arbitrate questions of arbitrability under the broad clause remains clear.” Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002).
cited Cited as authority (rule) Virk v. Maple-Gate Anesthesiologists, P.C.
W.D.N.Y. · 2015 · confidence medium
NASDAQ OMX Group, Inc., 770 F.3d at 1032 ; Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002).
discussed Cited as authority (rule) Bergman v. Spruce Peak Realty, LLC
D. Vt. · 2012 · confidence medium
Assuming that the SML Declaration incorporated the SAS Covenant by reference, “under normal circumstances, when an agreement includes two dispute resolution provisions, one specific ... and one general ..., the specific provision will govern those claims that fall within it.” Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002) (per curiam).
discussed Cited as authority (rule) Jock v. Sterling Jewelers Inc. (2×)
2d Cir. · 2011 · confidence medium
Id. (citing Fahnestock, 935 F.2d at 519 (vacating an arbitration award imposing punitive damages where New York law expressly prohibited arbitrators from imposing punitive damages) and Katz v. Feinberg, 290 F.3d 95, 97-98 (2d Cir.2002) (holding that the arbitrators had exceeded their authority by reaching an issue that the agreement exclusively committed to independent accountants, not the arbitrators)).
discussed Cited as authority (rule) Greenspan v. LADT, LLC
Cal. Ct. App. · 2010 · confidence medium
Partnership (11th Cir. 2005) 432 F.3d 1327, 1332-1333 [citing cases]; Qualcomm Inc. v. Nokia Corp. (Fed.Cir. 2006) 466 F.3d 1366, 1371-1373 ; see also Patchett v. Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390 , 1396-1397 & fn. 3 [ 49 Cal.Rptr.3d 941 ] [trial court properly confirmed arbitration award, notwithstanding appellant’s contention that arbitrator exceeded his powers, where arbitration clause authorized arbitrator to determine “ ‘arbitrability of any claim’ ”]; cf. Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1277, 1280-1281, 1286-1288 [ 73 Cal.Rptr.3d 395 ] [court, not …
discussed Cited as authority (rule) Reliastar Life Insurance v. EMC National Life Co. (2×)
2d Cir. · 2009 · confidence medium
See, e.g., Porzig v. Dresdner, Kleinwort, Benson, North America, LLC, 497 F.3d 133, 140-41 (2d Cir.2007) (arbitration panel had no authority to fashion award of attorney’s fees which required attorney to reimburse his client because attorney was not a party to arbitration agreement); 187 Concourse Assocs. v. Fishman, 399 F.3d 524 , 527 (2d Cir.2005) (where arbitration agreement clearly provided that employee could be terminated for just cause, arbitrator had “no authority ... to fashion an alternative remedy” which directed that employee be reinstated for probationary period); Katz v. Fe…
discussed Cited as authority (rule) ReliaStar Life Ins. Co. of N.Y. v. EMC Nat'l Life Co.
2d Cir. · 2009 · confidence medium
See, e.g., Porzig v. Dresdner, Kleinwort, Benson, North America, LLC, 497 F.3d 133, 140-41 (2d Cir. 2007) (arbitration panel had no authority to fashion award of attorney’s fees which required attorney to reimburse his client because attorney was not a party to arbitration agreement); 187 Concourse Assocs. v. Fishman, 399 F.3d 524 , 527 (2d Cir. 2005) (where arbitration agreement clearly provided that employee could be terminated for just cause, arbitrator had “no authority . . . to fashion an alternative remedy” which directed that employee be reinstated for probationary period); Katz v…
discussed Cited as authority (rule) Lefkovitz, Sigmund v. Wagner, Nathan
7th Cir. · 2005 · confidence medium
And ordinarily the award of relief against a nonparty would be just the kind of ultra vires act Nos. 03-4171, 03-4173, 03-4175, 03-4194 7 by an arbitrator that would justify judicial intervention. 9 U.S.C. § 10 (a)(4); BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 554-55 (7th Cir. 2002); Lindland v. U.S. Wrestling Ass’n, Inc., 227 F.3d 1000, 1003 (7th Cir. 2000); Katz v. Feinberg, 290 F.3d 95, 97-98 (2d Cir. 2002); Coady v. Ashcraft & Gerel, 223 F.3d 1, 9 (1st Cir. 2000).
discussed Cited as authority (rule) Sigmund Lefkovitz v. Nathan Wagner, and Jarnis United Properties Co., Proposed Intervenor-Appellant, and Grippo & Elden, and 29-31 Associates
7th Cir. · 2005 · confidence medium
And ordinarily the award of relief against a nonparty would be just the kind of ultra vires act by an arbitrator that would justify judicial intervention. 9 U.S.C. § 10 (a)(4); BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 554-55 (7th Cir.2002); Lindland v. U.S. Wrestling Ass’n, Inc., 227 F.3d 1000, 1003 (7th Cir.2000); Katz v. Feinberg, 290 F.3d 95, 97-98 (2d Cir.2002); Coady v. Ashcraft & Gerel, 223 F.3d 1, 9 (1st Cir.2000).
cited Cited as authority (rule) United States v. Torres-Aguilar
5th Cir. · 2004 · confidence medium
Asuncion-Pimental, 290 F.3d at 95.
cited Cited "see" Western Rim Property Services Inc. v. Paula Bazan-Garcia
Tex. App. · 2014 · signal: see · confidence high
See 290 F.3d 95 (2d Cir.2002).
cited Cited "see" Microsoft Corp. v. Samsung Electronics Co.
S.D.N.Y. · 2014 · signal: see · confidence high
See Katz v. Feinberg, 290 F.3d 95, 96 (2d Cir.2002).
examined Cited "see" NASDAQ OMX Group, Inc. v. UBS Securities, LLC (4×)
2d Cir. · 2014 · signal: see · confidence high
See Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002).
discussed Cited "see" NASDAQ OMX, Inc. v. UBS Securities LLC
S.D.N.Y. · 2013 · signal: see · confidence high
See Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002) (holding that the presence of a broad arbitration clause with a carve-out for certain claims created an ambiguity, thus requiring arbitrability to be determined by the court).
cited Cited "see" Fuld v. Booth Foundation, Inc.
S.D.N.Y. · 2010 · signal: accord · confidence high
Accord, e.g., Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002). . 9 U.S.C. § 4 . .
discussed Cited "see" In Re Lehman Brothers Securities and Erisa Litigation
S.D.N.Y. · 2010 · signal: accord · confidence high
Accord, e.g., Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir.2002). [47] 9 U.S.C. § 4 . [48] See Westmoreland Capital Corp. v. Findlay, 100 F.3d 263 , 266 n. 3 (2d Cir.1996). [49] Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Limited, 598 F.3d 30, 40 (2d Cir.2010); see also Tai Ping Ins.
cited Cited "see" Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty Trust
Tex. App. · 2007 · signal: see · confidence high
See 290 F.3d 95 (2d Cir.2002).
cited Cited "see" Burlington Resources Oil & Gas Company LP v. San Juan Basin Royalty Trust
Tex. App. · 2007 · signal: see · confidence high
See 290 F.3d 95 (2d Cir. 2002).
discussed Cited "see, e.g." Petersen-Dean, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA.
S.D.N.Y. · 2020 · signal: see, e.g. · confidence medium
See, e.g., Katz v. Feinberg, 290 F.3d 95, 98 (2d Cir. 2002) (panel award calculating certain share prices vacated because underlying contract committed this valuation duty to company accountants and explicitly stated that the accountants’ determination would “not be subject to any . . . arbitration”); 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005) (panel award that (a) found “just cause” for company to terminate employee, and (b) ordered that the employee nonetheless be reinstated to his job, vacated because the underlying contract explicitly allowed for the compa…
discussed Cited "see, e.g." Massachusetts Highway Department v. Perini Corp.
Mass. App. Ct. · 2013 · signal: see, e.g. · confidence low
See, e.g., Katz v. Feinberg, 167 F. Supp. 2d 556, 562 (S.D.N.Y. 2001), aff’d, 290 F.3d 95 (2d Cir. 2002); Burlington Resources Oil & Gas Co. v. San Juan Basin Royalty Trust, 249 S.W.3d 34, 36 (Tex. App. 2007).
discussed Cited "see, e.g." Zachariou v. Manios
N.Y. App. Div. · 2009 · signal: see also · confidence medium
Burlington Resources Oil & Gas Co. LP v San Juan Basin Royalty Trust, 249 SW3d 34, 40-42 [Tex 2007]; James & Jackson, LLC v Willie Gary, LLC, 906 A2d 76, 81 [Del 2006]; see also Katz v Feinberg, 290 F3d 95, 97 [2d Cir 2002]).
discussed Cited "see, e.g." Westerbeke Corporation v. Daihatsu Motor Co., Ltd.
2d Cir. · 2002 · signal: see also · confidence medium
Id; see also Katz v. Feinberg, 290 F.3d 95, 97-98 (2d Cir.2002) (holding that the arbitration panel exceeded its authority when it revised a valuation issue that had been exclusively committed by the contract to independent accountants).
Retrieving the full opinion text from the archive…
Norman KATZ, Petitioner-Appellant,
v.
Herbert FEINBERG, Respondent-Appellee
Docket 01-7776.
Court of Appeals for the Second Circuit.
May 13, 2002.
290 F.3d 95
2002 U.S. App. LEXIS 9113
2002 WL 984476
Ronald C. Minkoff, Frankfurt, Garbus, Kurnit, Klein & Selz, P.C., New York, NY, for Petitioner-Appellant., Steven G. Storch, Storch, Amini, & Mun-ves, New York, NY, for Respondent-Ap-pellee.
Parker, Straub, Sotomayor.
Cited by 43 opinions  |  Published
PER CURIAM.

Norman Katz appeals from the order of the United States District Court for the Southern District of New York (Charles S. Haight, Judge) vacating, pursuant to Section 9 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et al, a finding in his favor made by an arbitration panel against his former business partner Herbert Feinberg. Because this Court agrees with the district court’s determinations that neither the arbitrability of the valuation provision of the parties’ Purchase Agreement nor the valuation provision itself was subject to arbitration, we affirm the district court’s vacatur.

The facts of the controversy are thoroughly described in the opinion of the district court, 167 F.Supp.2d 556 (S.D.N.Y.2001). For purposes of this brief opinion, we describe only two key provisions of the detailed Purchase Agreement governing the sale of Katz’s one-half interest in an apparel manufacturing company to his former partner and co-owner Feinberg. The first relevant provision assigns determination of the “Final Share Purchase Price,” based on the company’s 1995 financial statements, to the company’s long-standing accountants and specified that “[t]he determination by the Company Accountants of the final purchase price of the Shares ... shall be final and binding on Seller and Buyer and shall not be subject to any appeal, arbitration, proceeding, adjustment or review of any nature whatsoever.” Purchase Agreement § 2(b). The second assigns all disputes under the agreement to arbitration in New York, New York under the rules of the American Arbitration Association. Purchase Agreement § 14(g). When the company accountants returned a valuation substantially lower than expected, Katz sought to have the accountants’ determination declared invalid by an arbitration panel pursuant to the general arbitration clause, while Feinberg appealed to the arbitration panel to rescind the Purchase Agreement and refund money towards the purchase he had already paid to Katz. The arbitration panel ultimately took jurisdiction over the dispute and declared the accountants’ determination flawed, computing a new Final Share Purchase Price $607,000 higher than the accountants’ figure. Katz sought approval of this award in the district court and Feinberg cross-moved for vacatur of the new valuation under the FAA. The district court found that the parties’ Purchase Agreement committed review of the valuation determination to the Company Accountants, not the arbitration panel. The court concluded, therefore, that the arbitration board, in reviewing and revising the Accountants’ valuation determination, had exceeded its authority under the Agreement. The court thus vacated that portion of the arbitration panel’s decision regarding the Company Accountants’ valuation pursuant to 9 U.S.C. § 10(a)(4) (allowing vacatur where an arbitrators have “exceeded their powers”).

Although we affirm primarily for substantially the same reasons stated in Judge Haight’s thorough and scholarly opinion below, we write briefly to distinguish this Court’s existing precedent on the arbitra-bility of arbitration clauses and to note the importance of the dominance of specific over general arbitration provisions in the resolution of the arbitrability of the valuation provision at issue in this case.

Addressing first the question of who should determine whether the valuation provision was arbitrable, this Court finds, as did the district court, that the[*97] parties did not agree to arbitrate questions of arbitrability. Under First Options of Chicago, Inc. v. Kaplan, a court should find that the parties agreed to allow an arbitrator to resolve questions of whether an issue is arbitrable only if the agreement so provides in “clear and unmistakable” language. 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Although this Court has previously held that a broadly worded arbitration clause committing resolution of all disputes to arbitration satisfied this “clear and unmistakable” standard, see PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir.1996), we cannot conclude that in this case where a single agreement contains both a broadly worded arbitration clause and a specific clause assigning a certain decision to an independent accountant, that the parties’ intention to arbitrate questions of arbitrability under the broad clause remains clear. We find the presence of both these clauses creates an ambiguity, which, under First Options, requires us to assign questions of arbitrability to the district court, not the arbitrator. See 514 U.S. at 944, 115 S.Ct. 1920. [1] On these grounds, we affirm the district court’s conclusion that determination of the arbitrability of arbitrability lay with it and not with the arbitration panel, and that, therefore, de novo review of the panel’s arbitrability findings was appropriate.

This Court also agrees with the district court’s conclusion that the separate valuation provision in § 2(b) of the Purchase Agreement removed the determination of the Final Share Purchase Price from the arbitration panel. While we find the district court’s analysis compelling, we find important, additional grounds for our affirmation. This Court has previously noted that under normal circumstances, when an agreement includes two dispute resolution provisions, one specific (a valuation provision) and one general (a broad arbitration clause), the specific provision will govern those claims that fall within it. See Blue Tee Corp. v. Koehring Co., 999 F.2d 633 (2d Cir.1993); see also Whirlpool Corp. v. Philips Elec., N.V. (In re Whirlpool Corp.), 848 F.Supp. 474, 479 (S.D.N.Y.1994)(finding well established the rule that “disputes under agreements containing both specific and general arbitration clauses must be arbitrated under the particularized clauses”); Am. Silk Mills Corp. v. Meinhard-Commercial Corp. (In re Am. Silk Mills), 35 A.D.2d 197, 200, 315 N.Y.S.2d 144 (N.Y.App.Div.1970)(noting inclusion of valuation and arbitration provision showed intent to use valuation provision in certain cases); Dimson v. Elghanayan (In re Dimson), 19 N.Y.2d 316, 325, 280 N.Y.S.2d 97, 227 N.E.2d 10 (N.Y.Ct.App.1967) (finding inclusion of specific valuation provision showed intent to remove valuation determinations from general arbitration clause). We find the rule favoring specificity appli[*98] cable in this case. The parties’ Purchase Agreement includes both a specific provision, § 2(b), assigning determination of the Final Share Purchase Price to the Company Accountants, and a generally worded arbitration provision, § 14(g), assigning all claims arising from the agreement to an arbitrator. Under existing law, we find that the more specific assignment should govern. Furthermore, the Court notes that in this case, the inclusion in § 2(b) of language not only making the accountants’ determination “final and binding,” but also excluding it from “any appeal, arbitration, proceeding, adjustment or review of any nature whatsoever” further affirms the parties’ intent to exclude determinations assigned to the accountants under § 2(b) from later challenge under the general arbitration provision of § 14(g). See Purchase Agreement § 2(b) (emphasis added).

In light of existing case law and the strong language of the parties’ agreement, we find that the district court correctly found the arbitration panel without the power to evaluate the accountants’ determination of the Final Share Purchase Price and affirm the vacatur of the panel’s valuation decision.

Having found the district court correct in concluding both that the district court, not the arbitration panel, should determine the arbitrability of the valuation dispute and that the valuation provision was not subject to arbitration under the terms of the Purchase Agreement, this Court affirms the district court’s vacatur of the arbitration panel’s valuation decision. As the parties’ agreement isolated valuation from arbitration, the district court properly ordered the attempt to arbitrate valuation invalid.

Affirmed.

1

. Katz also relies on Abram Landau Real Estate v. Bevona to support his argument that the broad arbitration provision commits resolution of arbitrability disputes to the arbitration panel. In Abram Landau, the Court noted its reluctance to read First Options to require courts to make broad arbitration clauses ineffective in assigning arbitrability question to the arbitrator. 123 F.3d 69, 73 (2d Cir.1997). The Court determined that the arbitrability of the issue in questions should be determined by the arbitrators, not the court, because the parties’ agreement included a broadly worded provision with no apparent carve-outs. Id. at 74. The dispute before the court, however, was not over whether the agreement as written would place arbitrability within the arbitrator's authority, but over whether an "evergreen” provision had renewed the agreement after it reached its expiration date. Id. at 74. Thus, while the dicta of Abram Landau supports the same general proposition as Bybyk, the holding in that case, finding evaluation of the evergreen clause within the arbitrator's authority, does not affect our resolution of this case.