Bankers Life & Casualty Insurance v. CBRE, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1471
BANKERS LIFE & CASUALTY INSURANCE CO.,
Plaintiff-Appellant,
v.
CBRE, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 7907 — Harry D. Leinenweber, Judge.
____________________
ARGUED DECEMBER 10, 2015 — DECIDED JULY 29, 2016
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
POSNER, Circuit Judge. A dispute between the parties was
referred to a panel of arbitrators, who voted in favor of
CBRE, a large real estate company. Its opponent, Bankers, an
insurance company, challenged the arbitrators’ decision in
federal district court, lost there, and appeals.
In 2011 Bankers leased office space at 600 West Chicago
Avenue in Chicago. Its lease was set to expire in 2018. An-
2 No. 15-1471
other tenant in the building was Groupon, the well-known
online merchant, which needed more office space. CBRE ap-
proached Bankers about the possibility of Bankers’ subleas-
ing its space in the building to Groupon and relocating else-
where, and Bankers responded to CBRE’s overtures by hir-
ing it to negotiate a sublease to Groupon and find an alterna-
tive location for Bankers. Bankers and CBRE signed a Listing
Agreement which provided that CBRE would “accept deliv-
ery of and present [to Bankers] all offers and counteroffers to
buy, sell, or lease … property” of Bankers; “would assist
[Bankers] in developing, communicating, negotiating, and
presenting offers, counteroffers, and notices”; and would
“answer [Bankers’] questions relating to the offers, counter-
offers, notices, and contingencies.” These terms were re-
quired by Illinois law. 225 ILCS 454/15-5(a), 15-75.
Bankers was unwilling to sublease its space at 600 West
Chicago Avenue without obtaining a comparable lease else-
where; moreover, it wanted its revenue from subleasing its
space in that building to Groupon to exceed the cost of its
new lease elsewhere. CBRE agreed, consistently with its hav-
ing agreed in the Listing Agreement to present “offers” to
Bankers and answer any questions Bankers might have
about the offers that CBRE obtained. Bankers told CBRE that
it wanted to net $7 million from its deals with Groupon and
the lessor of the space that Bankers would obtain to replace
the space it would be subleasing to Groupon. The $7 million
would be the consequence of the generous income that
Bankers would receive from its sublease to Groupon com-
bined with Bankers’ inexpensive relocation elsewhere.
CBRE responded by presenting Bankers with a series of
cost-benefit analyses (CBAs), comparing the costs of leasing
No. 15-1471 3
new space with the benefits of subleasing the old space to
Groupon. A CBA delivered by CBRE to Bankers in May 2011
showed a net savings to Bankers from relocating to 111 East
Wacker Drive of $6.9 million. As this was within $100,000 of
the deal Bankers was seeking, it responded to the infor-
mation in the CBA by subleasing its West Chicago Avenue
space to Groupon and leasing the space on East Wacker
Drive for itself.
CBRE’s calculation was inaccurate. It omitted Bankers’
promise, as part of the deal with Groupon, to give Groupon
a $3.1 million tenant improvement allowance to enable
Groupon to improve the space formerly occupied by Bank-
ers. The uncontradicted evidence is that had Bankers known
it would profit by only $3.8 million ($6.9 million – $3.1 mil-
lion) from the deal package (lease plus sublease), it would
have rejected the deal and thus not have relocated and CBRE
would not have obtained the $4.5 million in commissions
that it received as compensation for having arranged the
sublease to Groupon and Bankers’ relocation to East Wacker
Drive.
The upshot was an arbitration proceeding conducted by
Judicial Arbitration and Mediation Services (JAMS), in
which Bankers sought to recoup the lost $3.1 million and to
avoid having to pay commissions to CBRE because by fail-
ing to provide Bankers with accurate information CBRE had
violated the Listing Agreement, failed to perform the duties
imposed on it by the Illinois Real Estate License Act, and
committed the tort of negligent misrepresentation. In Febru-
ary 2014 the arbitration panel issued its award (actually it
turned out to be only its first award), ruling that while CBRE
had indeed erred in greatly exaggerating the value of the
4 No. 15-1471
sublease/lease deal that it had arranged for Bankers, it had
not violated the Listing Agreement because the agreement
did not explicitly require CBRE to furnish Bankers with a
correct CBA, and CBRE had not violated its obligations, set
forth in the Listing Agreement, to assist Bankers “in devel-
oping, communicating, negotiating and presenting offers,
counteroffers and notices” and “to answer [Bankers’] ques-
tions relating to offers, counteroffers, notices, and contingen-
cies.” Oddly, the panel said that “the mistake in CBRE’s
analysis on the summary pages of the CBAs is not a viola-
tion of its obligation to assist Bankers ‘in developing, com-
municating, negotiating and presenting offers[,] counterof-
fers and notices’” nor a failure to “answer [Bankers’] ques-
tions relating to offers, counteroffers, notices, and contingen-
cies.” It’s hard to imagine what else the mistake might be.
The panel rejected Bankers’ other arguments as well.
Evidently the panel had misgivings. For four months lat-
er (June 2014), in response to Bankers’ unsurprising motion
for reconsideration of the award, the panel changed course.
It now acknowledged “that the Listing Agreement obligated
CBRE to answer questions accurately” and that “CBRE [had]
made a mistake and that mistake was material.” Yet the
panel adhered to its earlier ruling in favor of CBRE, on the
ground that “as stated by Bankers, the required answers [to
questions Bankers had put to the brokerage firm concerning
the sublease to Groupon and the leasing of alternative prem-
ises for Bankers] “were the CBAs” (emphasis in original) and
“the CBAs … included a disclaimer that provided that CBRE
was not guaranteeing that there were not any errors con-
tained in the CBA. Here, there was an arithmetic error, or an
error in aligning the columns of numbers. The disclaimer
clearly provides that CBRE was not responsible for errors.”
No. 15-1471 5
The next month the panel issued another “final award”
(the original award having been downgraded to interim sta-
tus), again in favor of CBRE, to which it now awarded costs.
The panel exceeded its authority. It was authorized to in-
terpret the contract. The contract did not include the cost-
benefit analyses. The panel’s reliance on the disclaimer in the
CBAs was therefore unjustified. The disclaimer is not part of
the Listing Agreement; it was not negotiated by the parties
but merely inserted by CBRE unilaterally. The CBAs—the
only places in which the disclaimer appears—not only are
not part of the agreement; they are not mentioned in it. They
were just the format, the vehicle, in which CBRE responded
to Bankers’ inquiries about the progress of the negotiations
for the subleasing of Bankers’ space on West Chicago Ave-
nue and the relocation of Bankers to East Wacker Drive. But
as such responses—responses to Bankers’ “questions relat-
ing to offers, counteroffers, notices, and contingencies”—
were inaccurate, they were not responsive, and thus violated
the Listing Agreement, which as the panel said in its order
required “that … CBRE … answer questions accurately.”
The arbitrators’ role was to interpret the agreement, not
additions to it by one party without the consent of the oth-
er—such additions could not amend the agreement. Having
belatedly discovered that it had failed to disclaim liability
under the Listing Agreement, CBRE should have asked
Bankers for a modification of the agreement. Instead it snuck
the disclaimer into documents that had not been agreed up-
on by the parties. It was like Mr. A agreeing in writing to
pay Mr. B $10 dollars, and B responding (with hand held
out, and palm open): “I have changed $10 to $20.” The arbi-
trators attempted to amend the contract with a document
6 No. 15-1471
that was not part of the contract. The district court let them
get away with it.
True, an error does not normally invalidate an arbitration
award; otherwise such awards would have no greater im-
munity from judicial review than decisions by district judges
or administrative agencies. The idea is that by electing arbi-
tration the parties have chosen to bypass the judicial system.
As we said in Wise v. Wachovia Securities, LLC, 450 F.3d 265,
269 (7th Cir. 2006), “when parties agree to arbitrate their
disputes they opt out of the court system, and when one of
them challenges the resulting arbitration award he perforce
does so not on the ground that the arbitrators made a mis-
take but that they violated the agreement to arbitrate, as by
corruption, evident partiality, exceeding their powers, etc.—
conduct to which the parties did not consent when they in-
cluded an arbitration clause in their contract.” Or as the Illi-
nois Supreme Court said in Garver v. Ferguson, 389 N.E.2d
1181, 1183–84 (Ill. 1979), Illinois courts will not vacate an ar-
bitration award for mere “errors in judgment or mistakes of
law” unless “gross errors of judgment in law or a gross mis-
take of fact” are “apparent upon the face of the award”—
which is this case. See also Rauh v. Rockford Products Corp.,
574 N.E.2d 636, 644 (Ill. 1991), which attributes that rule to
the Illinois Uniform Arbitration Act, 710 ILCS 5/12(3), which
governs this case because it is a diversity case arising under
Illinois law. And similarly in First Merit Realty Services, Inc. v.
Amberly Square Apartments, L.P., 869 N.E.2d 394, 399 (Ill.
App. 2007), we read that because “arbitrators’ authority is
limited by the unambiguous contract language,” they “do
not have the authority to ignore the plain language of the
contract and to alter the agreement, as the ultimate award
must be grounded on the parties’ contract.” And so when
No. 15-1471 7
“arbitrators ma[k]e an evident miscalculation of figures in
arriving at the award, the reviewing court will modify or
correct the award.” Shearson Lehman Brothers, Inc. v. Hedrich,
639 N.E.2d 228, 232 (Ill. App. 1994). In this case the arbitra-
tors made, or more precisely endorsed, a $3.1 million miscal-
culation.
There was a time when commercial arbitration awards
contained no reasoning, in order to avoid attracting the scru-
tiny of judges, who were fiercely hostile to arbitration, which
they viewed as a competitor of adjudication. Thomas E. Car-
bonneau, “Rendering Arbitral Awards with Reasons: The
Elaboration of a Common Law of International Transac-
tions,” 23 Columbia Journal of Transnational Law 579, 583–84
(1985); Andermann v. Sprint Spectrum, L.P., 785 F.3d 1157,
1159 (7th Cir. 2015). But increasingly parties to arbitration
insist on “reasoned awards.” See Judith Resnik, “Diffusing
Disputes: The Public in the Private of Arbitration, the Private
in Courts, and the Erasure of Rights,” 124 Yale L.J. 2804, 2809
(2015); Stephen L. Hayford, “A New Paradigm for Commer-
cial Arbitration: Rethinking the Relationship Between Rea-
soned Awards and the Judicial Standards for Vacatur,” 66
George Washington L. Rev. 443, 446 and n. 9 (1998). They did
in this case, by selecting JAMS to arbitrate; for JAMS re-
quires the award to “contain a concise written statement of
the reasons for the Award” unless the parties agree other-
wise, which they didn’t in this case.
Because the parties bargained for a reasoned award, rea-
soning should be part of the “face of the award.” But the
award in this case was based on documents outside the par-
ties’ agreement and ignored the agreement itself—the List-
ing Agreement. Cf. Rauh v. Rockford Products Corp., supra, 574
8 No. 15-1471
N.E.2d at 644. The arbitration panel realized or at least
sensed that it had ignored the Listing Agreement when it
issued its June revision of the award, but the new reasoning
in that revision confused the cost-benefit analyses with the
Listing Agreement. The district court should not have up-
held the award. Its judgment is therefore reversed and the
case remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED
No. 15-1471 9
SYKES, Circuit Judge, dissenting. I part company with my
colleagues based on the narrow scope of our review. This
case is governed by the Illinois Uniform Arbitration Act
(“IAA”). Like its federal counterpart, the IAA permits only
very limited judicial review. A court may vacate an arbitra-
tion award only if the arbitrators “exceeded their powers.”
710 ILL. COMP. STAT. 5/12(a)(3). The Federal Arbitration Act
(“FAA”) uses identical language, see 9 U.S.C. § 10(a)(4), and
the statutes share the same origin (the Uniform Arbitration
Act), so the state statute has long enjoyed parallel construc-
tion with the federal. J & K Cement Constr., Inc. v. Montalbano
Builders, Inc., 456 N.E.2d 889, 893 (Ill. 1983); Rexnord Indus.,
LLC v. RHI Holdings, Inc., 906 N.E.2d 682, 684 (Ill. App. Ct.
2009); Cook County v. Am. Fed’n of State, Cnty. & Mun. Emps.,
Local 3315, 691 N.E.2d 777, 780 (Ill. App. Ct. 1998).
In its seminal decision on judicial review of arbitration
awards, the Illinois Supreme Court held that “an arbitrator’s
award will not be set aside because of his errors in judgment
or mistakes of law or fact.” Garver v. Ferguson, 389 N.E.2d
1181, 1183 (Ill. 1979). Garver continues:
The fact that arbitrators have made an errone-
ous decision will not vitiate their award. If they
have acted in good faith, the award is conclu-
sive upon the parties; and neither party is
permitted to avoid it[] by showing that the ar-
bitrators erred in their judgment, either re-
specting the law or the facts of the case.
Id. (quoting Merritt v. Merritt, 11 Ill. 565, 567 (1850)). Finally,
Garver explains that “[w]henever possible a court must
construe an [arbitration] award so as to uphold its validity,
and gross errors of judgment in law or a gross mistake of
10 No. 15-1471
fact will not serve to vitiate an award unless these mistakes
or errors are apparent upon the face of the award.” Id. at
1184 (citation omitted). Later cases are in accord. See, e.g.,
Rauh v. Rockford Prods. Corp., 574 N.E.2d 636, 641 (Ill. 1991).
We’ve said much the same thing when describing the
scope of judicial review under the FAA. Almost three dec-
ades ago we explained that a gross error in interpreting the
parties’ contract will not suffice to vacate an arbitration
award, but a plainly gross misinterpretation might, in an
appropriate case, support a conclusion that “the arbitrators
weren’t interpreting the contract at all.” Hill v. Norfolk & W.
Ry. Co., 814 F.2d 1192, 1194–95 (7th Cir. 1987). As we put it
more recently, a court may vacate an arbitration award only
when “the arbitrators’ interpretation was ‘so wacky that it
was no interpretation at all.’” Prostyakov v. Masco Corp.,
513 F.3d 716, 723 (7th Cir. 2008) (quoting Tice v. Am. Airlines,
Inc., 373 F.3d 851, 854 (7th Cir. 2004)).
This heightened degree of deference is essential to en-
force the private ordering reflected in the parties’ choice to
resolve their disputes in arbitration. “[T]he parties have
chosen in their contract how their dispute is to be decided,
and judicial modification of an arbitrator’s decision deprives
the parties of that choice.” Tim Huey Corp. v. Global Boiler &
Mech., Inc., 649 N.E.2d 1358, 1362 (Ill. App. Ct. 1995).
Predictably then, the circumstances under which Illinois
courts have been willing to vacate arbitration awards have
generally been limited to awards that contain what are
essentially calculation errors by the arbitrators. See First
Merit Realty Servs., Inc. v. Amberly Square Apartments, L.P.,
869 N.E.2d 394 (Ill. App. Ct. 2007); Shearson Lehman Bros.,
Inc. v. Hedrich, 639 N.E.2d 228 (Ill. App. Ct. 1994). Awards
No. 15-1471 11
that hinge on an interpretation or application of a particular
contract provision have been left undisturbed, even when
the arbitrators’ interpretation seems bizarre. See, e.g., Her-
ricane Graphics, Inc. v. Blinderman Constr. Co., Inc., 820 N.E.2d
619 (Ill. App. Ct. 2004).
Applying the deferential standard here, I see no basis to
vacate this arbitration award. The arbitrators did not exceed
their authority in the relevant sense; nothing in the award
suggests that their decision wasn’t drawn from the contract.
The arbitrators resolved this dispute in three separate steps.
The panel issued its merits decision on February 21, 2014;
denied a motion for reconsideration on June 3, 2014; and
awarded attorney’s fees on July 15, 2014. In the February
decision, the panel rejected Bankers’ breach-of-contract
claim, focusing mostly on paragraph 19 of the Listing
Agreement, which required CBRE to assist Bankers in
developing, communicating, negotiating, and presenting
offers and counteroffers regarding the Chicago Avenue
property. The panel concluded that CBRE could not be liable
for the $3.1 million miscalculation in its cost-benefit analysis
because the cost-benefit analysis was not an “offer” or
“counteroffer” and thus wasn’t covered by paragraph 19.
Paragraph 20 of the Listing Agreement—the provision
requiring CBRE to “answer questions” about offers and
counteroffers—was mentioned but not separately analyzed.
Later, in denying reconsideration, the panel acknowl-
edged that paragraph 20 required CBRE to answer Bankers’
questions about offers and counteroffers, and this implied a
requirement of accurate answers. This paragraph, the panel
concluded, does cover the challenged cost-benefit analysis
(the one containing the $3.1 million miscalculation), but
12 No. 15-1471
CBRE wasn’t liable for breach because the cost-benefit
analysis contained a disclaimer warning that the firm wasn’t
responsible for errors.
That may be an erroneous interpretation of the contract,
but the decision is plainly grounded in the contract, so we
cannot vacate the award. My colleagues say the arbitration
panel ignored explicit language in the Listing Agreement
and “confused the cost-benefit analyses with the Listing
Agreement.” Majority op. at 8. I disagree. The arbitrators
quoted and construed the relevant language in the agree-
ment (paragraphs 19 and 20) and clearly understood that the
cost-benefit analyses were the “answers” required by para-
graph 20—the bargained-for performance, not the contract
itself. On plenary review I might agree with my colleagues
that the arbitrators mistakenly read the disclaimer and the
agreement together. But the limited judicial review that the
IAA permits requires us to uphold an arbitration decision
that “draws [its] essence from the parties’ contract,” as this
one does. Tim Huey, 649 N.E.2d at 1364.
Finally, my colleagues have misapplied Shearson Lehman
Brothers. There the Illinois Appellate Court held that when
“arbitrators ma[k]e an evident miscalculation of figures in
arriving at the award, the reviewing court will modify or
correct the award.” 639 N.E.2d at 232. But the arbitration
panel did not make a calculation error. The arbitrators
concluded that CBRE was not liable; there is no miscalcula-
tion to modify or correct. Shearson Lehman Brothers does not
apply.
Accordingly, however much we might disagree with the
arbitrators’ reasoning, we cannot vacate the award. I respect-
fully dissent.