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Lawyer-arbitrator friendship prompts $22 million rebuke

6/29/2011 COMMENTS (1)

NEW YORK, June 29 (Reuters) - A friendship between a partner at Fish & Richardson and an arbitrator has prompted a Texas appeals court to throw out a $22 million award the arbitrator had granted to the attorney's client.

The court's June 28 decision, which also vacated $6 million in attorney's fees to Fish & Richardson, held that the social relationship between attorney Brett Johnson and JAMS arbitrator Robert Faulkner, as well as their spouses, undermined the fairness of the proceedings. The failure of the arbitrator to disclose the relationship - which included country club dinners and outings to Mavericks games - at the arbitration's onset constituted "evident partiality," the court found.

The decision stems from a soured business partnership between Johnson's client Jonathan Cooke and Robert Karlseng, an attorney in Dallas. In 1999, the two men created a real estate title company. Five years later, Johnson's client alleged that Karlseng had transferred all the assets out of the company and into a newly-formed law firm in violation of their original business agreement. In 2006, the dispute went to arbitration with Faulkner as the arbitrator. Faulkner eventually awarded Johnson's client more than $22 million, including $6 million in attorney's fees.

The appeals court noted in the June 28 decision that shortly before the arbitration hearing over which Faulkner presided, Fish & Richardson revised its fee arrangement with Cooke to a contingency contract, a revision which resulted in the $6 million award granted by Faulkner.

Johnson on Wednesday issued a statement through a spokesman.

"I respectfully disagree with the opinion here," the statement read. "The district court held a 2-day hearing and found no impropriety."

Faulkner, a retired federal magistrate judge for the Eastern District of Texas, was not immediately available for comment.

Arbitration awards on rarely thrown out. Less than about 15 percent of challenges to awards result in a court vacating them, according to The National Law Journal.

In vacating the $22 million award, the appeals court observed that Johnson and his wife had invited Faulkner and his wife to a private dinner at the Capital Grille in Dallas in 2003 and to a dinner paid for by Faulkner at a local country club in 2006. In addition, the court found that Johnson and Faulkner had arranged by email to attend a Mavericks basketball game in 2006 and that Johnson, his wife and their baby attended a function at private club in Dallas the same year.

Despite those events, Faulkner did not disclose the relationship as required, the court found. In addition, it found that they "acted as strangers" when the two men introduced themselves to each other at the beginning of the arbitration proceeding.

"In a case of this magnitude, in which Cooke requested over $6 million in attorneys fees, and in which arbitrator Faulkner and Johnson did not disclose the nature of their relationship, the evidence of the relationship is particularly alarming." Blake Beckham, a Dallas attorney who represented Karlseng in fighting the award, said that Johnson was "buddies" with the arbitrator.

"This decision sends a message to big firms that are courting arbitrators," he said.

(Reporting by Leigh Jones)


Comments (1)

7/2/2011 9:00:53 AM by Geoffreybh

The key to this seems to be the non-disclosure, rather than in the actual relationship. The trouble is that the question is one of degree; the relationship might be acceptable in itself but the mere fact of non-disclosure raises a doubt. It was Brandeis who said, ". . . sunlight is the best disinfectant." and he wasn't selling soap!


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