On January 17, 2023, Justice Crane of the New York County Commercial Division issued a decision in Matter of Elkay Plastics Co., Inc. v. Astzen Group LLC, 2023 NY Slip Op. 30162(U), holding that an arbitrator had the authority to award attorneys’ fees as a discovery sanction, explaining:
The arbitrator had the authority to award petitioner reasonable attorneys’ fees and costs incurred as a result of McKenna’s noncompliance. Here, under AAA Commercial Rule R-22(a): the Arbitrator shall manage any necessary exchange of information among the parties … while … promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses. Further, under Rule R-23(d), the arbitrator has the authority to make a special allocation of costs for a party’s willful non-compliance with disclosure obligations. The cases McKenna cites in opposition are inapplicable.
(Internal quotations and citations omitted).