Arbitration Award Against HGTV Designer Confirmed Due to Failure to Raise Fairness Objections During Arbitration
The case involved an award in excess of $800,000 against a home designer and some affiliated companies for a renovation project that went bad. One of the affiliated companies brought an arbitration proceeding against the homeowners for nonpayment, and after appointment of the arbitrator, the homeowners sought to join the home designer pursuant to Construction Industry Arbitration Rules R-7.
The designer’s participation in the arbitration was limited. He did not file an answer to the homeowners’ claims against him and failed to appear at the hearing. After the arbitrator issued a final award holding the designer and other companies jointly and severally liable, the designer moved the federal district court for vacatur.
The district court held that, under the FAA, the appointment of the arbitrator prior to the designer’s participation in the arbitration did not result in a proceeding that was “not fundamentally fair,” distinguishing a case under the New York Convention that had held otherwise because the Convention specifically provides a defense based on “improper composition of the arbitral tribunal.” Under the FAA, the requirements for a “fundamentally fair hearing” are “notice, opportunity to be heard, and to present relevant and material evidence and argument before the decision makers, and that the decision makers are not infected with bias.” There was no indication that those requirements were not met here.
The Tenth Circuit confirmed the district court’s ruling, and denied the designer’s appeal on the additional ground that the designer failed to object to the arbitrator and failed to invoke CIAR R-7(c), which provides an opportunity for the arbitrator to “establish a process for selecting arbitrators for any ongoing or newly constituted case” after the joinder of additional parties. The designer’s failure to invoke CIAR R-7 was fatal to his claim to have been denied due process through the pre-joinder selection of the arbitrator. Gidding v. Fitz, No. 18-1106 (10th Cir. Nov. 6, 2018).