Today the Sixth Circuit refused to vacate an arbitration award on the ground that a lawyer-arbitrator failed to disclose prior relationships with a lawyer representing one of the parties. The relationships consisted of serving as co-counsel twice and representing different plaintiffs in the same cases six times. "While we cannot say that such a relationship would never give rise to evident partiality, the facts in the record before us indicate that a reasonable person would not be forced to conclude that [arbitrator] Stein was partial toward [plaintiffs] Uhl and Pacific." Uhl v. Komatsu Forklift Co., Ltd., No. 07-1044, slip op. at 9 (6th Cir. Jan. 9, 2008).
The unanimous panel thus ageed with the Fifth Circuit’s en banc rejection of a similar challenge in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 476 F.3d 278, 283-84 (5th Cir.), cert. denied, 127 S. Ct. 2943 (2007). As he court noted:
Most analogous to the instant case, the Fifth Circuit called it a "trivial former business relationship" when an arbitrator had previously acted as co-counsel in another matter with one of the attorneys representing a party to the arbitration.
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In this case, the parties specifically contracted for arbitrators with experience in products liability actions, . . . and while we cannot say how large that pool of arbitrators would be, if a relationship as insignificant as the one in this case were enough to trigger evident partiality, it would make it much harder to find arbitrators with the relevant and necessary expertise. For these reasons, we conclude that Komatsu has not established evident partiality.
Uhl v. Komatsu Forklift Co., Ltd., slip op. at 10.
Blawgletter couldn’t agree more.