The Arbitrator's Relationship With GLAAD Was Irrelevant To The Dispute.
The arbitration award was confirmed and affirmed on appeal in Malek Media Group LLC v. AXQG Corp., B299743 (12/16/20 )) (Dhanidina, Lavin, Egerton), a case in which the disgruntled appealing party sought to disqualify the arbitrator for failure to disclose his connection with GLAAD, the Gay & Lesbian Alliance Against Defamation. The appellant made the tenuous argument that the arbitrator's involvement with LGBTQ rights had to be disclosed, because a witness had accused Malek of sexual harassment, LGBTQ rights activists were feminists who assumed the woman was telling the truth, and finally, Malek was Catholic, and the Catholic Church was at odds with same-sex marriage.
The Court of Appeal dispatched with the non-disclosure argument, finding an affinity with LGBTQ issues to be irrelevant to the subject matter of the case. "MMG mischaracterizes the arbitration as one that primarily involved issues of sexual harassment or social justice, " explained the Court. "The arbitration involved the dissolution of Foxtail [the LLC formed by the parties] based on the irreconcilable conflict between Malek and Gou and the numerous breaches by Malek of the Foxtail agreement, primarily, Malek’s misuse of Foxtail funds." The person claiming sexual harassment was not even a party to the case, and her testimony was only relevant to the case to the extent that it tended to show that Malek's actions subjected the LLC formed by the parties to reputational harm. Finally, the sexual harassment/reputational issue only yielded a measly $500 as part of the arbitrator's award.
The Court also found the appeal to be frivolous, resulting in sanctions. A post about the sanctions aspect of the case can be found on Mike Hensley's and my California Attorney's Fees Website.
COMMENT. We have previously posted about Rebmann v. Rohde, 196 Cal.App.4th 1283 (2011), which is dispositive in Malek Media Group LLC v. AXQG Corp. The earlier case involved a disgruntled party in arbitration and a Jewish arbitrator. In Rebmann: "The defendant/appellant informed the trial court that if only he had 'known about his [the arbitrator's] religious affiliation, his cultural affiliation, and the dedication to keeping the memory of the Holocaust alive, I never would have allowed him to be the arbitrator in my case.' The defendant/appellant's father, and his wife's father served in the SS during WWII. Among other things, the Court of Appeal rejected the 'tacit assumption' that 'a judge who is a member of a minority cannot be fair when a case somehow related to that minority status – no matter how remote or tenuous that relationship might be – comes before that judge.'"
Unhappy litigants have long complained that judges and arbitrators could not be fair to them because of their race, ethnicity, religion, nationality, and more recently, sexual orientation and gender identity. This was true during the period of the Civil Rights Movement, and even more recently, a federal judge was attacked as biased, based on the claim that he was "Mexican." These types of attacks are very unlikely to succeed in a court of law. However, we note a difference in emphasis between the Rebmann case and Malek Media Group LLC. Where Rebmann rejected the assumption that a judge or arbitrator who is a member of a minority cannot be fair when a case is somehow related to minority status, Malek Media Group LLC makes the point that the arbitrator's interest in LGBTQ issues was irrelevant to the subject matter of the case. Both points are valid, but the emphasis is different.
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