Preparing for Arbitration

There are a number of resources I like to use to research arbitrators. And of course, it helps to know what you are looking for and what to avoid.

However, having the right arbitrator is just the tip of the iceberg. Proper training in arbitration and experience in successfully arbitrating cases to a final award is essential. As is knowledge of the Federal Arbitration Act, the forum's rules, and relevant authority (some of which I have referenced below). Forced arbitration is not appropriate; but if you think arbitration is a dead end, think again. I, along with various co-counsel, have obtained 7 arbitration awards (in a row) with punitive damages since 2014.

I am happy to talk to any consumer, employment, or plaintiff's lawyer who needs help researching an arbitrator, preparing for arbitration, etc. You can call me direct at (408) 634-2165.

Recent Arbitration Cases

• An agreement to waive the right to seek public injunctive relief violates California law. Therefore, such waivers are invalid and unenforceable.
• Blair v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019)
• The Ninth Circuit denied confirmation of a Final Arbitration Award because the Arbitrator did not require the Respondent to abide by the parties’ agreement that they comply with federal regulations.
• Aspic Engineering and Construction Co. v. ECC Centcom Constructors LLC, 913 F.3d 1162, 116869 (9th Cir. 2019)
• The Eleventh Circuit held a creditor waived its right to arbitrate when it refused to pay the arbitration fees.
• Freeman v. SmartPay Leasing, LLC, 771 F. App'x 926 (11th Cir. 2019)

Arbitration Rules

• JAMS Comprehensive Arbitrators Rules and Procedures
• https://www.jamsadr.com/rules-comprehensive-arbitration/
• JAMS Consumer Arbitration Minimum Standards
• https://www.jamsadr.com/consumer-minimum-standards/
• JAMS Employment Arbitration Rules

• https://www.jamsadr.com/rules-employment-arbitration/

• JAMS Employment Minimum Standards
• https://www.jamsadr.com/employment-minimum-standards/
• AAA Consumer Rules; AAA Employment Rules; Commercial Rules
• https://www.adr.org/sites/default/files/document_repository/Consumer%20Due%20Process%20Protocol%20(1).pdf
• Judicate West Commercial Arbitration Rules
• https://www.judicatewest.com/Resources/ArbitrationRules
• National Arbitration and Mediation
• https://www.namadr.com/resources/rules-fees-forms/

Noteworthy Arbitration Cases

• A claimant is entitled to whatever discovery is needed to vindicate statutory rights.
• Armendariz v. Foundation Health Psychcare Servs., Inc., 24 Cal. 4th 83 (2000); D.C. v. Harvard-Westlake School, 176 Cal. App. 4th 836 (2d Dist. 2009); Mercuro v. Superior Court, 96 Cal. App. 4th 167, 180 (2002) (“[W]e see no reason why Armendariz’s‘particular scrutiny’ of arbitration agreements should be confined to claims under FEHA. Rather, under the Supreme Court’s analysis, such scrutiny should apply to the enforcement of rights under any statute enacted ‘for a public reason.’ ”)
• Court upheld an arbitrator’s decision to allow more than five depositions.
• Monster Energy Co. v. HRHH Hotel/Casino, Ltd. Liab. Co., No. CV 13-01888-R, 2014 U.S. Dist. LEXIS 11965, at *4 (C.D. Cal. Jan. 27, 2014)
• A California appellate court in a harassment case found the number of depositions allowed by the arbitration agreement to be inadequate: “Plaintiff’s trial counsel has estimated that plaintiff will need to take at least 15 to 20 depositions, given that [t]he case involves harassing conduct directed at plaintiff at two job sites” and that “the conduct took place from approximately 2000 to 2004 and involved numerous employees.”
• Ontiveros v. DHL Express (USA), Inc.,164 Cal. App. 4th 494, 512 (1st Dist. 2008).
• Arbitration agreements have also been ruled to be unconscionable for placing restrictions on discovery, such as when they limit a plaintiff to only two depositions, one expert witness, 15 requests for production and one interrogatory.
• Reyes v. United Healthcare, 2014 U.S. Dist. LEXIS 3926813 (C.D. Cal. 2014);O'Hanlon v. JPMorgan Chase Bank, N.A., 2015 U.S. Dist. LEXIS 137213, 2015 WL 5884844 (C.D. Cal. Oct. 7, 2015) (Denying Motion to Compel Arbitration because only 2 depositions were allowed, and agreement was vague about what AAA rules apply, as well as the fees and costs).
• The Federal Rules of Evidence and state rules do not apply in arbitration, although an arbitrator may rely on them for guidance
• The Rutter Group Practice Guide,Alternative Dispute Resolution, Warren Knight, Richard Chernick [5:393]; Sunshine Mining Co. v. United Steelworkers of America, etc., 823 F.2d 1289 (9th Cir. 1987) (“Arbitrators may admit and rely on evidence inadmissible under the Federal Rules of Evidence.”); Swenson v. Bushman Inv. Props., 870 F. Supp. 2d 1049, 1065 (D. Idaho 2012)("the arbitrator could accept the accuracy of this report regardless of whether Swenson testified about the report. Arbitrators may rely on hearsay evidence and they obviously can reach their own conclusions as to the accuracy of evidence before them. See, generally, 2 Domke on Commercial Arbitration § 29:9 ('Because common-law rules of evidence do not apply to arbitration proceedings, hearsay is admissible.') (footnote citation omitted)."
• Courts have reversed arbitrators for failing to consider affidavits.
• Attia v. Audionamix Inc., No. 14-Civ-706, 2015 U.S. Dist. LEXIS 127330 (S.D. N.Y. Sept. 21, 2015); Mollison­Turner v. Lynch Auto Group, No. 01 C 6340, 2002 U.S. Dist. LEXIS 9491 (N.D IL May 23, 2002).
• Pursuant to FAA § 10(a)(3) and (4), an arbitrator can have their award vacated if he or she fails to hear pertinent and material evidence, including necessary witnesses.
• Tempo Shain Corp. v. Bertek, 120 F.3d 16 (2d Cir. 1997); Hosteles Condado Beach, La Concha & Convention Center v. Union de Tronquistas Local 901, 763 F.2d 34 (1st Cir. 1985). See, also, Gulf Coast Indus. Workers Union v. Exxon Co., U.S.A., 70 F.3d 847, 850 (5th Cir. 1995) (vacating award based on finding that arbitrator misled party into withholding evidence by stating that equivalent evidence was already in record and then issuing decision based on failure to present the withheld evidence); Cal. Prac. Guide (The Rutter Group), 5:397.
• The FAA also implicitly requires that an arbitrator ensure the parties have equal access to all documents, witnesses, and information; the failure to discharge that duty can be grounds to vacate an arbitration award.
• Chevron Transport Corp. v. Astro Vencedor Compania Naviera, S. A.,300 F. Supp. 179 (S.D.N.Y. 1969) (“The absence of statutory provision for discovery techniques in arbitration proceedings does not negate the affirmative duty of arbitrators to insure that relevant documentary evidence in the hands of one party is fully and timely made available to the other side before the hearing is closed. A failure to discharge this simple duty would constitute a violation of 9 U.S.C.S. § 10(c) (1964), where a party can show prejudice as a result.”); Home Indem. Co. v. Affiliated Food Distribs., 1997 U.S. Dist. LEXIS 19741 (Dec.12, 1997).