Consolidation and Joinder in Arbitration

Consolidation and joinder of cases and parties is becoming more common in arbitration and is increasingly a subject of discussion in arbitral forums. A recent case in Ohio provides an interesting example of the use of joinder and the issues that may arise when joining parties and cases. Parker v. Dimension Serv. Corp., Docket 17AP-860 2018-Ohio-5248 (Ct App. Dec. 27, 2018).

Before moving to that case, however, it should be noted that Commercial Rules of the American Arbitration Association as well as the Comprehensive Arbitration Rules & Procedures of JAMS do not provide for consolidation and joinder. Instead, they are silent. Thus, for arbitrations proceeding under those rules, requests for joinder and consolidation must be based on the language of the parties’ arbitration agreement or on an appeal to the arbitrator’s broad authority and such goals as efficiency and cost-effectiveness. 

In Parker, six car dealers accused Dimension Serv Corp (Dimension) of failing to make payments required under their Profit Share Agreements (PSA). The car dealers filed a demand for consolidated arbitration because each of them had the same PSA with Dimension. The arbitration panel held that the claims of the six car dealers would be consolidated for purposes of discovery and motion practice. The panel reasoned that arbitration provisions in the PSAs granted the panel broad authority, as they stated, “The arbitrators need not observe judicial formality or strict rules of evidence, and they shall make their award from a standpoint of practical business practices and equity rather than strict law.” Furthermore, the panel held that “this is a proper case for consolidated discovery and motion practice based in part on the principle that arbitration is intended to be an efficient, timely, and cost-effective alternative to litigation.”

The panel ruled that consolidation for purposes of discovery and motion practice did "not prevent separate, individual evidentiary presentations as to defenses or claims.” The panel also permitted Dimension to petition the panel to request a separate hearing for any individual claimant. The panel issued an award granting relief to all but one of the car dealers. Thereafter, the car dealers moved to affirm their award, and Dimension moved to have the award vacated on the ground that the panel exceeded its authority by permitting consolidation. The trial court rejected Dimension’s argument and confirmed the award.

On appeal, Dimension argued that the trial court’s decision to confirm the awards was wrong because:

• The parties must expressly consent to consolidation pursuant to the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International. Corp., 559 U.S. 662 (2010).
• The arbitration agreements did not grant the panel authority to consolidate.
• Ohio law (R.C. 2712.52) requires that a petition, along with proof of unanimous consent to consolidation, must be filed with the courts to consolidate separate arbitration claims.
• The consolidation question is a threshold arbitrability question reserved for the courts.

The appellate court rejected all of Dimension’s arguments.

The court held that Stolt-Nielsen, which concerns class actions, did not apply. It explained that class-action arbitrations are “fundamentally different” from bilateral arbitrations because in class-actions, the award "no longer resolves a single agreement, but instead resolves many disputes between hundreds or perhaps even thousands of parties” and the award “adjudicates the rights of absent parties.” Here, in contrast, the arbitrations were consolidated only for the limited purposes of discovery and motion practice. In addition, the panel permitted Dimension to request a separate hearing for any individual claimant. The court noted that Dimension did not make any such requests and waited over five months to object to the consolidation.

The court also ruled that the arbitrators did not exceed their authority because “the contracts were identical and defenses were likely identical.” The arbitration provision in the PSAs gave the panel broad authority, stating “[t]he arbitrators . . . shall make their award from a standpoint of practical business practices and equity rather than strict law.” The court held that “these cases were proper for consolidated discovery and motion practice as an efficient, timely, and cost-effective alternative to litigation.”

The court held that Ohio R.C. Chapter 2712, requiring a petition and proof of unanimous consent to consolidation, did not apply here because these facts “do not involve international commercial arbitration.”

The court also ruled that “Federal Circuit Courts of Appeal have consistently held that the matter of consolidation is not a threshold question of arbitrability for a court to decide, but, rather, is a matter of procedure for the arbitrator.” The court distinguished situations that involved a motion to stay litigation already pending in court, a person who was not a party to the arbitration agreement, and an issue not within the scope of the arbitration agreement. 

Thus, the court overruled all of Dimension’s assignments of error and affirmed the trial court’s decision.