California’s Fourth Appellate District recently issued an interesting, but fact-specific, opinion regarding an arbitrator’s award in Emerald Aero, LLC v. Kaplan (2/28/17) 2017 DJDAR 1819.

In Emerald Aero, the plaintiff investors sued the defendant for breach of fiduciary duty in connection with a self-storage investment gone awry.  Plaintiffs sought compensatory damages and declaratory relief, but did not seek punitive damages. The arbitrator held a telephonic arbitration merits hearing (i.e., trial), after which he awarded plaintiffs $30 million without specifying the grounds for the award. Although the award did not specify the nature of the damages, the parties agreed that a substantial portion consisted of punitive damages.

The Court’s decision is notable for several reasons:

First, it underscores the unusual nature of arbitration and private judging. When parties elect to litigate outside of the court system, they are bound by the rules and procedures of their chosen private alternative dispute resolution forum. Ordinarily, arbitrators follow the law and case administrators follow the forum’s internal procedures and processes. But this is not always the case. If arbitrators or case administrators do make a mistake, opportunities for appellate review are few. (Indeed, this arbitration was governed by the California Arbitration Act, which offers fewer bases to overturn arbitration awards than does the Federal Arbitration Act.) The grounds for reversal must be manifest and severe.

Second, it underscores the importance of correctly and completely pleading all claims, prayers for damages, and defenses in an arbitration. Practitioners tend to think of arbitral forums as being less formal than trial courts, and often, they are correct. Arbitrators sometimes (but not always) exercise a degree of “flexibility,” particularly with respect to evidence and pleading, that otherwise is absent from judicial forums. But as this case demonstrates, it’s best not to rely on the perceived informality of arbitrations. If plaintiffs in Emerald Aero asserted a claim that entitled them to punitive damages, they should have plainly asked for an award of such damages (or, if they did not want such damages, they should have made clear to the arbitrator that such damages were not being sought). Their failure to do so opened an expensive can of worms that ultimately unwound an advantageous award in their favor and forced them to incur fees litigating on appeal.