Swing In This One Was Around $500,000.
Swing. Theodor Horydczak, photographer. 1937. Library of Congress.
We have many times commented on the discretion given to arbitrators to decide the merits of disputes, including fees and costs awards. Dyna, LLC v. GreatCall, Inc., Case No. D071003 (4th Dist., Div. 1 Oct. 10, 2017) (unpublished) is a prime illustration of this principle.
There, a first arbitrator apportioned a small amount of costs even though a second, different arbitrator found discretion to award much more, namely, $547,660.41 in costs after passing on the res judicata impact of the first arbitrator’s award. The trial judge excluded all but $56,925 in costs, a determination reversed on appeal.
The Court of Appeal ruled that the second arbitrator, even on a res judicata issue relating to a prior arbitrator’s ruling, was entitled to deference. That meant the second arbitrator’s costs award withstood appeal and the trial judge’s reduction did not stand.