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University of Miami Law Review

Abstract

The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations outside the physical presence of the arbitrator and, thus, an arbitral summons for a witness to appear via video conference is not enforceable. Intellectually, Managed Care raises interesting issues concerning the textualist approach to statutory construction. For practical purposes, the opinion stands at odds with the realities of arbitration in the modern world, where remote technology has played a key role in the efficient administration of arbitration proceedings. Further, in light of the pandemic and its related health risks, the Eleventh Circuit’s opinion raises concerns about the conduct of arbitration proceedings, particularly when disclosure of information by non-parties is needed for a full and fair hearing. After examining the text of Section 7 and federal circuit courts’ opinions interpreting the provision, this Article proposes an alternate, perhaps timelier, textual interpretation of Section 7—one that remains true to the text, comports with the practicalities of modern arbitration, and anticipates challenges that will continue or arise in a post-pandemic world.

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