Dispute Resolution News
Official Publication of the Atlanta Bar Association Dispute Resolution Section
In This Issue
Upcoming Events
Section Chair Honored for Service
Repeat Users of Arbitrators and the Question of Bias
Mediated Settlement Agreement Which Contained Unreasonable Attorney Fees Award Subject To Challenge
Amending Claim Can Revise Right to Arbitrate in Waiver Situation
Concepcion, Georgia Law on Unconscionability and Arbitrability
The Dispute Resolution News is Looking for Articles of Interest
Quick Links
Fall 2011
Newsletter Editor: 
John F. Allgood
Dispute Resolution Section Board of Directors
Chair: Robert N. Dokson
Vice Chair/Chair-Elect: Emory Speer Mabry III
Secretary/Treasurer: Herbert H. (Hal) Gray III
Immediate Past Chair: Robert B. Wedge

John F. Allgood
William Beringer
Cicely Breckenridge
Hala Carey
Terrence L. Croft
William S. Goodman
Daniel E. Gulden
Rex D. Smith 
Upcoming Events
Mark your calendars for our upcoming Section Breakfast
Next Section Breakfast
Wednesday, November 2 - 7:30 am
at the Buckhead Club
Speaker and topic to be announced.

Please check your emails and www.atlantabar.org
for updates.

Mark your calendars for these other upcoming Section Breakfast Meetings at the Buckhead Club
- Wednesday, January 4, 2012 - 7:30 am
- Wednesday, February 5, 2012 - 7:30 am
- Wednesday, March 7, 2012 - 7:30 am
- Wednesday, April 4, 2012 - 7:30 am
- Wednesday, May 2, 2012 - 7:30 am
Check your emails for updates on breakfast topics and speakers or visit www.atlantabar.org.
Section Chair Honored for Service
Section Chair Robbie Dokson will be honored by the Atlanta Bar for his service from 1975-1980 as Executive Director of the Atlanta Legal Aid Society.  On October 21, 2011, the Atlanta Bar is awarding Dokson the Randall L. Hughes Lifetime Commitment to Legal Services Award.
According to Steven Gottlieb, director of Atlanta Legal Aid, who nominated Dokson, "Robbie deserves consideration for this award for just his work as Legal Aid's director."  During his leadership at Legal Aid, Dokson acquired a permanent home for Legal Aid and also established a program that offered legal aid attorneys assistance in the repayment of student loans.   In addition to serving as Executive Director of Legal Aid, Dokson also served as a board member beginning in 1989 and as president in 2009.
The annual services awards of the Atlanta Bar recognize the most dedicated volunteers for their pro bono and community service work.
Repeat Users of Arbitrators and the Question of Bias - Prior Disclosure to the Parties Negates Challenge

One of the criticisms leveled at arbitration by critics is that frequently a party will be a repeat user of a particular arbitrator.  The argument made is that because of this familiarity over time there is implied bias by the arbitrator towards the party providing repeat business.   The New York Law Journal recently published a decision by the trail level court  in which this question was raised and in which the trial court rejected this claim where the arbitrator had made complete and timely disclosures about other arbitrations involving the same party.  United Healthcare v. Azar, Supreme Court, N.Y. County, Sept, 1,2011. 

In this particular case the parties had adopted the provider rules of the AAA.  The bias challenge was raised by Claimant and the provider, AAA, had considered the challenge under its rules, and determined there was not basis for a challenge based on bias.  The parties proceeded with the hearing and the award was then challenged when filed for confirmation.  The court likewise denied the bias charge.  The Court stated that under the applicable statutes the award when timely filed for confirmation would be confirmed absent grounds being presented to vacate the award.   Noting the arbitrators disclosures to the parties  and that fact that the provider rather than the parties had appointed the arbitrator in this instance the court denied the Claimant's motions to vacate:
Mediated Settlement Agreement Which Contained Unreasonable Attorney Fees Award Subject To Challenge In Precertifed Class Action Mediated Settlement Claim

A recent 9th Circuit decision points out the need even in mediation for the parties to consider reasonable or appropriate standards for negotiated attorney fee provisions. In re: Bluetooth Headset Products Liability Litigation, No. 09-56683 (9th Circuit, August 19, 2011).  A class action products liability claim was brought alleging that the manufacturer failed to disclose potential risk of hearing loss associated with the use of wireless headsets.  The parties reached a settlement and release that provided that (1) the defendants were to post safety information on the web; (2) pay $100,000 in cy pres awards to be distributed among four non-profit organizations (3) pay the cost of  notice up to $1.2 million and (4) pay the plaintiff's costs of $38,000 and (5) to pay attorney fees in the amount not to exceed $800,000 to the court to be divided by the nine class representatives.  There was no condition on any minimum attorney fees.

The district court approved the settlement and 715 people in the potential class opted out sending in objections, primarily targeting the amount of the attorney fees.  The district court reviewed billing records by the attorney and finally awarded $850,000.00.  The objectors appealed noting inter alia that the fee award was unfair and that the amount awarded was eight times the amount of the class recovery.
Amending Claim Can Revise Right to Arbitrate in Waiver Situation
mediatorThe plaintiff filed a class action complaint against the defendant bank.  Plaintiff had entered into a home-equity loan line of credit.  The loan agreement contained an arbitration clause requiring the plaintiff to resolve disputes through arbitration "whenever either party elects arbitration and provides the other party with written notice of the election to arbitrate."  Krinsk v. Suntrust Banks, Inc. et al. No. 10-11912, (11th Cir. Sept. 7, 2011).  The arbitration clause also stated that the class action claims were precluded:
... if you or we elect to arbitrate a claim, neither you nor we will have the right :(a) to participate in a class action in court or in arbitration, either as a class representative, class member or class opponent; or (b) to join or consolidate Claims with claims of any person other than you.  No arbitrator shall have authority to conduct any arbitration in violation of this provision.
Concepcion, Georgia Law on Unconscionability and Arbitrability
scales and book  Earlier this year the Supreme 
  Court construed a California
  interpretation of
  unconscionability to be
  preempted by the purposes of
  the Federal Arbitration Action. 
  AT&T Mobility LLC v.
  Concepcion 131 S. Ct. 1740
  (2011).  In a recent decision 
  by the U.S. District Court for the Southern District of Florida, Miami Division, the court looked at various state laws including Georgia contract law on unconscionability and an Eleventh Circuit holding to invalidate arbitration under a bank overdraft fee agreement.  After having an initial decision remanded by the Court of Appeals, to reconsider a finding of unconscionability based on class action waiver, the district found Concepcion did not prevent its finding that the arbitration agreement was unenforceable because of flaws in the process that had been drafted by the lenders. In Re: Checking Account Overdraft Litigation, Case No. 09-MD-02036 -JLK (9/1/11).  The court also did not accept lender arguments dealing with severance of provisions.  Instead the court found the process to be substantive unacceptable and unenforceable under the FAA.
The Dispute Resolution News is Looking for Articles of Interest
typewriter newsThe Dispute Resolution News is looking for articles of interest to the Section. 

If you would like to submit an article for publication, please email newsletter editor, John Allgood.