Argued June 13, 2012
Amended January 30, 2014.
Appeals from the Superior Court of the District of Columbia. (CAB-1897-11 and CAB-1898-11). (Hon. Michael L. Rankin, Trial Judge).
William R. Stein, with whom Michael A. DeBernardis was on the brief, for appellant Daniel Wolf.
Maia Caplan Kats, pro se, who adopted the brief of appellant Wolf by reference.
Gerald L. Maatman, Jr. and Daniel B. Edelman, with whom Rebecca S. Bjork and Stephen R. McAllister were on the brief, for appellees.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.
Reid, Senior Judge.
This case concerns an arbitration in the District of Columbia pertaining to the allocation of attorneys' fees awarded after a settlement in a class action lawsuit that was filed and litigated in the Superior Court for the State of California, County of Los Angeles (" California trial court" ). The arbitration involved several attorneys and law firms, most based in the District of Columbia. After receiving the arbitrator's award, appellants Daniel Wolf and Maia Caplan Kats unsuccessfully attempted to reopen the attorneys' fees issue in the California trial court. When that effort failed on jurisdictional grounds, Mr. Wolf and Ms. Caplan Kats filed a motion in the Superior Court of the District of Columbia (" District of Columbia trial court" ) to vacate the arbitration award on the ground that the arbitrator exceeded his powers and committed misconduct by denying them due process. Appellees Sprengerⶩ, PLLC (" S" ) and Jane Lang Paul Sprenger, LLC (" JLPS" ) opposed the motion. Mr. Wolf and Ms. Caplan Kats appeal the judgment of the trial court which denied their motion to vacate the arbitral award and confirmed the award. For the reasons stated in this opinion, we affirm the judgment of the
The record shows that in 1999, Mr. Wolf, then a partner at the law firm of Hughes, Hubbard and Reed, LLP (" Hughes Hubbard" ) and Ms. Caplan Kats, then a partner at S, discussed and began to investigate the possibility of filing an age discrimination lawsuit on behalf of television writers over the age of 40 years. The discussion and investigation led to the execution of a Co-Counsel Agreement, in June 2000 (" the agreement" ). Under the agreement, S agreed " to associate with" Mr. Wolf, Ms. Caplan Kats, and the law firm of Sprenger & McCreight, LC (" S" ) in order to represent plaintiffs in the class action. Paragraph 7 concerned the fee and expense petition. In pertinent part, Paragraph 7 required S to " submit a request for recovery of attorneys' fees and [e]xpenses that will include all hours reasonably expended at reasonable hourly rates and reasonable costs incurred by co-counsel in connection with the lawsuit for which contemporaneous records have been submitted." Paragraph 8 related to the allocation of recovered fees and expenses, and mandated, in relevant part, that " [a]ny . . . re-allocation of a fee award . . . shall be based on each firm's percentage of the total lodestar fees in the litigation (reasonable hours worked times reasonable hourly rates) and any . . . re-allocation of an [e]xpense award shall be based on each firm's percentage of total [e]xpenses advanced in the litigation." Paragraph 11 of the agreement required " [a]ny dispute between the parties" to be resolved through arbitration, and that paragraph also limited the grounds on which an arbitrator's decision could be appealed: " The parties agree that no appeal of the decision of the arbitrator shall be taken unless the arbitrator has clearly exceeded the scope of his or her authority under this agreement." In Paragraph 10, the parties designated " the laws and Rules of Professional Conduct of the District of Columbia" as the governing law for the agreement.
Subsequently, due to changes in law firm affiliation, S, KPW, AFL and the
local California law firm of Schwartz, Steinsapir, Dohrmann & Sommers (" SSDS" ) executed an Amended and Restated Co-Counsel Agreement on November 1, 2001 (" the amended agreement" ). Paragraph 2 stated that the amended agreement " d[id] not . . . alter the terms of the agreement between S& L and Wolf . . ., nor the terms of the agreement between S& L and Caplan in connection with her departure from S& L, except to the extent, if any, expressly set forth" in the amended agreement. Under Paragraph 3, S had responsibility for common expenses such as court reporter fees and transcript costs, travel, and lodging. Paragraph 7 established the litigation Steering Committee, with Paul Sprenger as Chair; the Steering Committee also included Mr. Wolf, Ms. Caplan Kats, and Steven Sprenger.
Paragraphs 15 and 16 of the amended agreement were virtually identical to Paragraphs 7 and 8 of the June 2000 agreement. In part, Paragraph 15 required S to " submit a request for recovery of attorneys' fees and costs that will include all hours reasonably expended at reasonable hourly rates and reasonable costs incurred by the [law] [f]irms for which contemporaneous records have been submitted." Paragraph 16 further required that fees and expenses awarded by the court be combined and firms " reimburse[d] . . . for all costs incurred," and that the remaining " balance" be " allocate[d]" to each firm " in proportion to their reasonable hours worked times reasonable hourly rates (lodestar fees)." Paragraph 19, like the comparable paragraph of the June 2000 agreement, designated " the laws and Rules of Professional Conduct of the District of Columbia" as the governing law. The arbitration provision of the amended agreement, Paragraph 22, was identical to Paragraph 11 of the June 2000 agreement. Paragraph 21 constituted a new provision: " No modification, termination or attempted waiver of this agreement shall be valid unless in writing, signed by the party against whom such modification, termination or waiver is sought to be enforced."
About three months after executing the amended agreement, the parties lodged twenty-three separate class action age discrimination complaints (involving hundreds of plaintiffs) against multiple defendants (networks and studios), in the California trial court. Thereafter, the parties engaged in protracted litigation, and in three years of mediation with mediators Hunter R. Hughes, Linda Singer and Judge Anthony Mohr. The California trial court orally approved the settlement of 19 cases on May 14, 2010 (" the Writers Litigation" ).
Around February and March 2010, the parties approved a mediation/arbitration agreement (" med/arb agreement" ) regarding their fees and expenses. They selected as mediator Mr. Hughes of Rogers & Hardin LLP, who helped to negotiate the underlying settlement of plaintiffs' claims. The " non-binding mediation . . . concern[ed] all disputes, claims, or demands arising out of or related to the allocation among counsel of any fee and expense award arising out of the settlement of the 'Writers Litigation.'" The arbitration provision specified that " in the event that in the opinion of the [m]ediator the parties do not reach a settlement of all material issues in dispute, then all such unresolved issues shall be decided by the binding, nonappealable decision of the [m]ediator acting as an [a]rbitrator." Under the med/arb
agreement, the mediator had " complete authority over all procedural matters."
The California trial court's January 6, 2009, and June 9, 2010, written approval of the settlements of the underlying litigation, meant that the parties had to turn their attention to filing an attorneys' fee petition prior to the mediator's issuance of his first order regarding procedural rules and other matters governing the proposed attorneys' fees arbitration. Even before the California trial court's settlement approvals, however, email traffic between the parties revealed a difference of opinion about billing rates for the purpose of allocation of fees. Around late October 2009, three attorneys sent a six-page memorandum to Paul Sprenger detailing " serious" issues regarding the allocation of fees. They concluded by declaring: " We will need to reach an agreement that these issues will be preserved without prejudice to any party pending the outcome of the motion for preliminary approval, motion for attorneys' fees, and any mediation/arbitration of the fee issues." They added that in the event of non-resolution of these issues, they " will have to be raised with [the California trial] [c]ourt, which is something none of us would prefer to do."
Mr. Sprenger responded in an email, dated February 3, 2010, expressing the hope that discussion would resolve some of the fee issues. He continued: " In the event some differences remain after fully exploring resolution, I have had indications from everyone that mediation is the first alternative choice [a]nd that [Mr.] Hughes should be retained for that purpose." Paul Sprenger noted that he had " spoken to [Mr. Hughes] and he is willing to mediate any differences." 
Mediation was scheduled to start on March 11, 2010. In anticipation of that event, Mr. Hughes sent an email to all parties on February 17, 2010. He acknowledged " conversations or email exchanges with" Paul and Steven Sprenger, Ms. Lang, Mr. Wolf, and Ms. Caplan Kats " in an effort to begin to understand the nature and scope of the issues to be resolved." These exchanges prompted him to say that " the gap between the parties appears to be substantial and, based on [his] prior experiences, lawyers are often unwilling voluntarily to agree to a resolution of fee ...