On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Cause No. 15-DCV-225828
I agree with the majority opinion. I write separately to highlight gaps in the record that mandate the seemingly harsh conclusion that Batista's rights were prejudiced by the arbitrator's evident partiality based on her failure to initially disclose prior cases she had arbitrated for Builders First's counsel, even though she filed an amended disclosure noting them.
The majority affirms the trial court's order, as relevant here, setting aside the arbitrator's orders "obtained by fraudulent non-disclosure and partiality."
The relevant AAA rules are not in our record; however, the employment agreement in the record indicates the parties agreed to utilize AAA's Employment Arbitration Rules. The record provides no other clues regarding the procedures governing this case. The AAA rules fail to address several key matters that sometime appear in arbitration rules and would have assisted our analysis:
See American Arbitration Association, Employment Arbitration Rules and Mediation Procedures (Nov. 1, 2009).
• The AAA rules do not address an amended disclosure such as was used here; the form appears to have been created by the arbitrator herself.
• AAA Rule 15 concerns arbitrator disclosures, and AAA Rule 16b concerns objections to the "continued service" of the arbitrator. It is unclear which, if either, rule was followed in this matter.
• The AAA rules do not provide that, in the event of a new or subsequent disclosure from the arbitrator, the selection process may be repeated. Rather, the aggrieved parties apparently have only the option of asking the AAA to disqualify the arbitrator.
• The AAA rules do not require parties or their counsel to also disclose any circumstances likely to give rise to justifiable doubt as to the arbitrator's impartiality or independence, including any past or present relationship with her.
• The AAA rules state no procedures or criteria for the disqualification hearing, selection of the decision makers, or the decision.
AAA Rule 15a indicates the obligation to disclose shall remain in effect throughout the arbitration; however, no rule instructs arbitrators in complying with this obligation.
AAA Rule 16b provides that AAA shall determine whether the arbitrator should be disqualified (and the grounds therefore, including "any grounds for disqualification provided by applicable law") and shall inform the parties of its decision, which decision shall be conclusive. Presumably, this procedure was followed here.
In this case, it appears that Builders First's counsel was aware of the prior representation at least before the arbitrator. It is not clear whether counsel was aware at the time of the original arbitrator appointment or nondisclosure.
According to Texas law, as articulated in the majority opinion, evident partiality is established by the nondisclosure itself, regardless of whether the nondisclosed information necessarily establishes partiality or bias. Burlington N. R.R. Co. v. TUCO Inc., 960 S.W.2d 629, 636 (Tex. 1997); see also Thomas James Assocs. v. Owens, 1 S.W.3d 315, 321 (Tex. App.—Dallas 1999, no pet.) (extending TUCO's holding to arbitrations subject to the FAA). As stated by the majority, under the FAA, one ground for vacatur is evident partiality, which may be shown by an arbitrator's failure to "disclose facts which might, to an objective observer, create a reasonable impression of the arbitrator's partiality." AAA Rule 16 states that an arbitrator "shall be subject to disqualification" for "any grounds for disqualification provided by applicable law." It is unclear from the record what criteria were applied by the AAA in making its determination to reaffirm the arbitrator.
This standard reflects the supreme court's determination that courts should not undertake evaluations of partiality that are better left to the parties. Skidmore Energy, Inc. v. Maxus (U.S.) Expl. Co., 345 S.W.3d 672, 678 (Tex. App.—Dallas 2011, pet. denied) (citing TUCO, 960 S.W.2d at 636). "When choosing a neutral arbitrator, the parties must weigh the competing factors of the arbitrator's knowledge and experience against his potential conflicts; parties can only perform that analysis if they have access to all of the information that could reasonably affect the arbitrator's partiality." Id. (citing TUCO, 960 S.W.2d at 635). After disclosure is made, the parties can make their determination concerning potential bias before the arbitration begins, a process that is more desirable than a court making the determination after an award is in place. Id. "While a neutral arbitrator need not disclose relationships or connections that are trivial, the conscientious arbitrator should err in favor of disclosure." TUCO, 960 S.W.2d at 637. --------
Our sister court has concluded that an AAA arbitrator's failure to disclose that a party representative had appeared before him in a past arbitration—and the failure to amend or correct his answer to the question specifically inquiring as to that fact—constituted evident partiality and constituted grounds for vacating the arbitration award under the FAA. See Alim v. KBR (Kellogg, Brown & Root)—Halliburton, 331 S.W.3d 178, 182 (Tex. App.—Dallas 2011, no pet.). This suggests that, in an appropriate case, an amended disclosure can be made. It does not, however, provide guidance to this court as to whether an amended disclosure would cure the evident partiality reflected in the original nondisclosure.
With these additional comments, I respectfully concur.
/s/ Martha Hill Jamison
Justice Panel consists of Justices Christopher, Jamison, and Brown (Christopher, J., majority).