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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000137
                                                              31-OCT-2014
                                                              09:35 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

              THOMAS NISHIMURA, COLETTE NISHIMURA,
      Individually and on Behalf of a Class of All Persons
     Similarly Situated, Petitioners/Plaintiffs-Appellees,

                                    vs.

                         GENTRY HOMES, LTD.,
               a Hawaii Domestic Profit Corporation,
                  Respondent/Defendant-Appellant,

                                    and

   SIMPSON MANUFACTURING CO., INC., a Delaware Corporation;
  SIMPSON STRONG-TIE COMPANY, INC., a California Corporation,
                          Defendants.
_______________________________________________________________

                            SCWC-13-0000137

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000137; CIV. NO. 11-1-1522-07)

                            OCTOBER 31, 2014

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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                  OPINION OF THE COURT BY McKENNA, J.

I.   Introduction

      This appeal raises an issue of first impression in Hawaii:

what standard applies in reviewing the enforceability of an

arbitrator-selection provision?         We adopt the “fundamental

fairness” standard set forth by the United States Court of

Appeals for the Sixth Circuit in McMullen v. Meijer, Inc., 355

F.3d 485 (6th Cir. 2004), and we hold that the arbitrator-

selection provision at issue in this appeal was fundamentally

unfair, because it gave the defendant’s agent “sole discretion”

to select an arbitration service to resolve a dispute between

the plaintiffs and defendant.         In the instant case, the Circuit

Court of the First Circuit (“circuit court”)1 properly severed

and struck the arbitrator-selection provision and ordered the

parties to meet and confer to select an arbitration service.

The circuit court also properly reserved for itself the

authority to appoint an arbitration service if the parties could

not come to an agreement.        Therefore, we vacate the ICA’s

judgment on appeal, which vacated the circuit court’s “Order

Granting in Part and Denying in Part Defendant Gentry Homes,

Ltd.’s Motion to Compel Arbitration Filed August 29, 2012,” and

its “Order Denying Gentry Homes’ Motion for Reconsideration of

the Order Granting in Part and Denying in Part Gentry Homes,

      1
            The Honorable Rhonda A. Nishimura presided.

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Ltd.’s Motion to Compel Arbitration [Filed August 29, 2012],

Filed on November 13, 2012.”         The circuit court’s orders are

affirmed.

II.    Background

       A.   Circuit Court Proceedings

             1.     The First Amended Class Action Complaint

       On October 12, 2011, Petitioners/Plaintiffs-Appellees

Thomas Nishimura and Colette Nishimura, individually and on

behalf of a class of all persons similarly situated

(“Nishimuras”), filed their First Amended Class Action

Complaint.        The Nishimuras alleged that Gentry Homes, Ltd.

(“Gentry”) constructed the Nishimuras’ home without adequate

high wind protection.

             2.    Motion to Compel Arbitration

       On August 29, 2012, Gentry filed its Motion to Compel

Arbitration, pursuant to the following provision in the Home

Builder’s Limited Warranty (“HBLW”) between Gentry and the

Nishimuras (with emphasized portions relevant to this appeal):

             VIII. Binding Arbitration Procedure
             Any disputes between YOU and US, or parties acting on OUR
             behalf, including PWC,[2] related to or arising from this
             LIMITED WARRANTY, the design or construction of the HOME or
             the COMMON ELEMENTS or the sale of the HOME or transfer of
             title to the COMMON ELEMENTS will be resolved by binding
             arbitration. Binding arbitration shall be the sole remedy
             for resolving any and all disputes between YOU and US, or
             OUR representatives.
             . . . .


       2
            “PWC” stands for “Professional Warranty Service Corporation,” the
company administering the HBLW pursuant to a contract with Gentry.

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            The arbitration shall be conducted by Construction
            Arbitration Services, Inc., or such other reputable
            arbitration service that PWC shall select, at its sole
            discretion, at the time the request for arbitration is
            submitted. The rules and procedures of the designated
            arbitration organization, that are in effect at the time
            the request for arbitration is submitted, will be followed.
            A copy of the applicable rules and procedures will be
            delivered to YOU upon request.

            This arbitration agreement shall be governed by the United
            States Arbitration Act (9 U.S.C. §§ 1-16) to the exclusion
            of any inconsistent state law, regulation or judicial
            decision. The award of the arbitrator shall be final and
            binding and may be entered as a judgment in any court of
            competent jurisdiction. . . .

    The Nishimuras’ Opposition to Gentry Homes’ Motion to

Compel Arbitration drew the circuit court’s attention to a

notice on    Construction Arbitration Services, Inc.’s website,

announcing that it had “permanently exit[ed] from the binding

construction arbitration dispute case administration business

effective July 1, 2009.”       (Emphasis in original.)       Thus, under

the HBLW’s arbitrator-selection provision, PWC was authorized to

“select, at its sole discretion” “such other reputable

arbitration service” to conduct the arbitration.            “Reputable”

was not defined in the HBLW.        The Nishimuras argued that the

instant arbitrator-selection provision contained no safeguards

against “potential bias,” and that PWC was empowered to choose

any arbitrator, including one with a pro-defense view.

    The Nishimuras feared that PWC would select an arbitration

service aligned with developers, because PWC marketed its “close

relationship” with Zurich, the parent of the insurance company

for Haseko Homes, Inc. and Haseko Construction, Inc., which at

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that time was also being sued for the same construction defect

as in the instant case.     The Nishimuras alleged that PWC would

have a “strong financial incentive in helping secure an outcome

in favor of Gentry in the instant action. . . .”           They noted

that another circuit court judge had severed and stricken the

arbitrator-selection provision in the Haseko case “on the ground

of PWC’s conflict of interest. . . .”        The Nishimuras argued,

“Allowing a party so closely aligned with the defendants in a

similar case involving similar claims before this Court to

unilaterally select the arbitrator would deprive Plaintiffs of a

fair and effective forum in which to vindicate their claims.”

In support of their argument, the Nishimuras cited, inter alia,

McMullen, 355 F.3d 485.

    In its Reply, Gentry argued that the Nishimuras set forth

“no evidence of bias with the ultimate arbitrator,” because none

had been selected.    Gentry pointed out that the arbitration-

selection provision authorized PWC to choose an arbitration

service, not the ultimate arbitrator.        Gentry also argued that a

party who does not consent to the other party’s choice of

arbitrator can petition the court to appoint an arbitrator.

Gentry also argued that a party must await the conclusion of

arbitration to raise a challenge of “evident partiality” in the

arbitrator.



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      At a hearing on the Motion to Compel Arbitration, counsel

for the Nishimuras asked the circuit court to sever and strike

the arbitrator-selection provision, order the parties to agree

to a local arbitrator, or appoint one itself, as another circuit

court had done in the Haseko case.         Counsel for Gentry countered

that he did not believe the circuit court had the authority to

order the parties to agree to an arbitrator.           The circuit court,

on the other hand, stated that “just on the face of” the HBLW

arbitrator-selection provision, “there is a potential conflict

. . . .”    The circuit court stated to Gentry’s counsel, “[T]he

less you have to reserve in the future as possible appealable

issues, the better. . . .”

      The circuit court therefore granted in part and denied in

part Gentry’s Motion to Compel Arbitration.           While it ordered

the Nishimuras to arbitrate their claims against Gentry, the

circuit court found the following:

            The Motion is DENIED to the extent that this Court finds
            that there is a potential conflict of interest with
            Professional Warranty Services, Inc. (“PWC”) selecting the
            arbitration service as set forth under the Home Builder’s
            Limited Warranty. Accordingly, the method by which the
            arbitration service is to be selected under the Home
            Builders’ Limited Warranty is severed and stricken.
            Pursuant to Hawaii Rules of the Circuit Courts Rule 12.23,

      3
            Hawaii Rules of the Circuit Courts (“RCCH”) Rule 12.2(a) (2012)
provides the following, in relevant part:
            Authority to order. The court, sua sponte or upon motion by
            a party, may, in exercise of its discretion, order the
            parties to participate in a non-binding Alternative Dispute
            Resolution process (ADR or ADR process) subject to terms
            and conditions imposed by the court. ADR includes
            mediation, summary jury trial, neutral evaluation, non-
                                                 (continued. . .)

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            this Court orders that Plaintiffs and Gentry shall meet and
            confer on the selection of a local arbitration service
            within forty-five (45) days of entry of this Order. If
            Plaintiffs and Gentry are unable to agree, the Court shall
            select a local arbitration service for this matter.

            3.   Motion for Reconsideration

    Gentry filed a Motion for Reconsideration of the circuit

court’s order asking the court to set aside the provision

severing and striking the arbitrator-selection provision.               In

addition to reiterating arguments that the time to challenge

arbitrator bias is post-award and that the Nishimuras had

presented no evidence of bias or potential bias, Gentry argued

that RCCH Rule 12.2 did not authorize the circuit court to

“modify the parties’ agreement for binding arbitration. . . .”

Gentry argued that RCCH Rule 12.2 authorizes court-mandated non-

binding arbitration, not binding arbitration, which is what the

parties had agreed to in the HBLW.

    In the Nishimuras’ Opposition to Gentry’s Motion for

Reconsideration, they argued that the circuit court had “broad

discretion to appoint an arbitration service (or here, order the

parties to meet and confer to appoint one) when the specified

arbitration service is no longer in business or the arbitrator




    3
        (. . .continued)
            binding arbitration, presentation to a focus group, or
            other such process the court determines may be helpful in
            encouraging an economic and fair resolution of all or any
            part of the disputes presented in the matter.

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is partial to one of the parties.”         The Nishimuras then cited to

9 U.S.C. § 5 (2009),4 which states the following:

           If in the agreement provision be made for a method of
           naming or appointing an arbitrator or arbitrators or an
           umpire, such method shall be followed; but if no method be
           provided therein, or if a method be provided and any party
           thereto shall fail to avail himself of such method, or if
           for any other reason there shall be a lapse in the naming
           of an arbitrator or arbitrators or umpire, or in filling a
           vacancy, then upon the application of either party to the
           controversy the court shall designate and appoint an
           arbitrator or arbitrators or umpire, as the case may
           require, who shall act under the said agreement with the
           same force and effect as if he or they had been
           specifically named therein; and unless otherwise provided
           in the agreement the arbitration shall be by a single
           arbitrator.

     The circuit court denied Gentry’s Motion for

Reconsideration.     Gentry then timely appealed the circuit

court’s order granting in part and denying in part its Motion to

Compel Arbitration, as well as the circuit court’s order denying

its Motion for Reconsideration.

     B.   ICA Appeal

           1.   Opening Brief

     In its Opening Brief, Gentry raised the following Points of

Error:

           1. Whether the trial court erred in denying, in part,
           Gentry’s Motion to Compel Arbitration and ordering Gentry
           and Plaintiffs to meet and confer on the selection of the
           arbitration service in contravention of the express terms
           of the parties’ arbitration agreement as set forth in the
           [HBLW] that Plaintiffs rely upon in bringing their claims
           against Gentry.
           2. Whether the trial court erred in denying Gentry’s
           Motion for Reconsideration.


     4
            9 U.S.C. § 5 is a provision in the Federal Arbitration Act, 9
U.S.C. §§ 1-16 (2009) (“FAA”). The parties do not dispute that the FAA
governs their arbitration agreement.

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           3. Whether the trial court erred in finding that PWC had a
           potential conflict of interest in selecting the arbitration
           service pursuant to the terms of the parties’ arbitration
           agreement as set forth in the [HBLW].
           4. Whether the trial court erred in finding that PWC’s
           potential conflict in selecting the arbitration service was
           a sufficient basis to strike that portion of the parties’
           arbitration agreement requiring PWC to select the
           arbitration service in order to avoid a future appealable
           issue.
           5. Whether the trial court erred in relying upon Hawaiʻi
           Rules of the Circuit Courts Rule 12.2 as the basis to order
           the parties to meet and confer on the selection of a local
           arbitration service in contravention of the express terms
           of the parties’ arbitration agreement as set forth in the
           [HBLW] requiring PWC to select the arbitration service.

     Gentry first argued that RCCH Rule 12.2 governs non-binding

arbitration and did not authorize the circuit court to order the

parties into binding arbitration.

     Gentry next argued that the circuit court “lacked

jurisdiction under the FAA to entertain the Nishimuras[’] pre-

arbitration challenge to the partiality of the not yet selected

arbitrator.”    Gentry cited to 9 U.S.C. § 10 (2009)5 as authority

for its position that the time to challenge the arbitrator’s

partiality is after the issuance of the arbitration award, when

the court is authorized to vacate an arbitration award “where

there was evident partiality or corruption in the arbitrators,

or either of them.”

     Gentry argued that, even if the circuit court had

jurisdiction to entertain the Nishimura’s pre-arbitration

      5
            9 U.S.C. § 10(a)(2) (2009) provides the following, in relevant
part: “[T]he United States court in and for the district wherein the award
was made may make an order vacating the award upon the application of any
party to the arbitration -- . . . where there was evident partiality or
corruption in the arbitrators, or either of them.”


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“challenge to the partiality of the not-yet-selected

arbitrator,” the Nishimuras did not establish that any

arbitration service selected by PWC pursuant to the HBLW would

be biased toward Gentry.      Gentry cited Phillips v. Assocs. Home

Equity Servs., Inc., 179 F.Supp.2d 840, 845 (N.D. Ill. 2001),

for the following proposition:       “In the absence of credible

evidence of actual bias in favor of the lenders, we ‘decline to

indulge the presumption that the parties and arbitral body

conducting a proceeding will be unable or unwilling to retain

competent, conscientious and impartial arbitrators.’”            (Emphasis

added.)   Gentry also cited Doctor’s Assocs., Inc. v. Stuart, 85

F.3d 975, 981 (2d Cir. 1996), for its rejection of the

defendants’ argument that an arbitration agreement was

unconscionable, because the defendants “failed to present any

credible evidence indicating bias on the part of the

[arbitration service or its arbitrators,] particularly because

[d]efendants’ claims have not yet gone to arbitration.”

          2.   Answering Brief

    In their Answering Brief, the Nishimuras disagreed with

Gentry’s argument that a challenge to the arbitrator-selection

process must be raised after the arbitrator has issued an

arbitration award.    The Nishimuras cited McMullen, 355 F.3d 485,

and Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d 370,

385 (6th Cir. 2005), for the proposition that “the general rule

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prohibiting pre-arbitration challenges to an allegedly biased

arbitration panel does not extend to an allegation that the

arbitrator-selection process itself is fundamentally unfair.                In

such a case, ‘the arbitral forum is not an effective substitute

for a judicial forum,’ and, therefore, the party need not

arbitrate first and then allege bias through post arbitration

judicial review.”     The Nishimuras argued that once a court

determines that the arbitrator-selection process is

fundamentally unfair, then 9 U.S.C. § 5 authorizes the court to

“choose an alternative method for selecting the arbitrator.”

    Next, the Nishimuras argued that there was sufficient

evidence to support the circuit court’s finding that PWC had a

conflict of interest rendering the arbitration-selection

provision fundamentally unfair, based upon PWC’s relationship

with insurance companies and builders, as well as the language

of the HBLW.   The Nishimuras pointed out that “the arbitrator

selection process contains no safeguards against potential

bias,” and that PWC, acting on Gentry’s behalf, “can literally

choose any arbitration service it unilaterally deems to be

‘reputable. . . .’”

    As to Gentry’s argument that RCCH Rule 12.2 did not

authorize the circuit court to order the parties to meet and

confer to select a local arbitration service, the Nishimuras

counter-argued that the circuit court relied on that rule only

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for the limited purpose of ordering the parties to attempt to

agree on an arbitration service; it did not order the parties

into binding arbitration under the rule.

             3.   The ICA’s Published Opinion

       The ICA issued a published opinion.          Nishimura v. Gentry

Homes, Ltd., 133 Hawaii 222, 325 P.3d 634 (App. 2014).              The ICA

asserted that the HBLW provision stating that PWC “act[s] on

[Gentry’s] behalf” merely served to “put a distance between

Gentry’s interest and the arbitrator,” but did not authorize PWC

to potentially “select an arbitration service that would resolve

arbitration in favor of Gentry.”            133 Hawaii at 228, 325 P.3d at

640.    As such, the ICA concluded that the HBLW’s language “does

not establish PWC’s improper motives or evident partiality.”

Id.

       The ICA then distinguished Walker, 400 F.3d 370, and

McMullen, 355 F.3d 485, from the instant case.             133 Hawaii at

228, 325 P.3d at 640.        The ICA distinguished Walker, stating

that the plaintiff employees in Walker entered into an

arbitration agreement with the very entity that would arbitrate

their disputes with their employer, unlike the instant case,

where PWC “would not itself serve as an arbitrator and was

required to select a reputable arbitration service.”               Id.   The

ICA distinguished McMullen, stating that the arbitration clause


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at issue in that case gave the defendant employer unilateral

control over the pool of potential arbitrators, unlike the

instant case, where PWC, not Gentry, selects an arbitration

service.   Id.   The ICA then “decline[d] to conclude that PWC’s

potential conflict of interest constitutes bias rendering the

arbitrator-selection process under the [HBLW] so ‘fundamentally

unfair’ as to be unenforceable.”         Id.   The ICA then concluded

that the circuit court’s actions in invalidating the arbitrator-

selection provision before PWC selected the arbitration service

were premature and improper.      Id.      According to the ICA,

“Nishimura Plaintiffs are not precluded from challenging the

arbitration service designated by PWC or the neutral arbitrator

selected by that service for bias upon appropriate proof before

the start of the arbitration proceedings.”          Id.

    Although its discussion up to this point in the opinion

focused on the fundamental fairness of the arbitrator-selection

process, the ICA’s opinion then shifted to a discussion on

unconscionability.    Id.   Specifically, the ICA held, “In order

to avoid enforcement of an allegedly unconscionable arbitration

clause, Nishimura Plaintiffs were required to present evidence

of actual partiality or bias of the arbitration service

designated by PWC or the neutral arbitrator selected.”            Id.

(citing Doctor’s Assocs. Inc., 85 F.3d at 981) (emphasis added).

The ICA then cited Gilmer v. Interstate/Johnson Lane Corp., 500

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U.S. 20, 30 (1991), to conclude that the Nishimuras’

contentions, “based on circumstances of PWC’s business

relationships,” constituted merely a “‘generalized attack’ on

PWC’s impartiality,” resting on a suspicion of arbitration out

of step with the United States Supreme Court’s endorsement of

this method of dispute resolution.           133 Hawaii at 229, 325 P.3d

at 641.     Without proof of “actual partiality or bias,” the ICA

held, “the circuit court should have confined judicial review to

the fairness of the completed arbitration award, at which time 9

U.S.C. § 10 could provide for vacating the award upon a finding

that the arbitrators acted with evident partiality.”               Id.

       The ICA then concluded that the circuit court should have

enforced the HBLW’s arbitrator-selection provision.              Id.     The

ICA vacated the order granting in part and denying in part

Gentry’s motion to compel arbitration, as well as the order

denying Gentry’s motion for reconsideration.             Id.   The ICA then

remanded the case to the circuit court for further proceedings.

Id.

III.    Standard of Review

       An appellate court reviews a trial court’s order granting

or denying a motion to compel arbitration de novo, using the

“same standard employed by the trial court and based upon the

same evidentiary materials ‘as were before [it] in determination



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of the motion.”       Koolau Radiology, Inc. v. Queens Med. Ctr., 73

Haw. 433, 440, 834 P.2d 1294, 1298 (1992) (citations omitted).

IV.    Discussion

       A.    The “Fundamental Fairness” Standard in Challenges
             to the Arbitrator-Selection Process

       Preliminarily, we note that the parties agree that the HBLW

is governed by the FAA.        9 U.S.C. § 2 (2009) provides the

following:

             A written provision in any maritime transaction or a
             contract evidencing a transaction involving commerce to
             settle by arbitration a controversy thereafter arising out
             of such contract or transaction, or the refusal to perform
             the whole or any part thereof, or an agreement in writing
             to submit to arbitration an existing controversy arising
             out of such a contract, transaction, or refusal, shall be
             valid, irrevocable, and enforceable, save upon such grounds
             as exist at law or in equity for the revocation of any
             contract.

(Emphasis added).       Thus, under the FAA, invalidation of an

arbitration provision is authorized.           In determining whether an

arbitrator-selection provision is enforceable, we adopt the

“fundamental fairness” standard set forth by the Sixth Circuit

in McMullen, 355 F.3d 485.

       In McMullen, on the eve of arbitration, after an arbitrator

had been selected, a plaintiff employee (“McMullen”) brought an

action challenging the fairness of the arbitrator-selection

process.     355 F.3d at 488.      The arbitration agreement granted

her employer “exclusive control over the pool of potential

arbitrators from which the arbitrator is selected.”              355 F.3d at

487.    From that pool of potential arbitrators, the employer and

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employee each struck an arbitrator until only one remained.              355

F.3d at 488.

    McMullen’s employer counter-argued that the bias McMullen

“fears will manifest itself during her arbitration hearing is,

at this point, merely potential bias.”         355 F.3d at 494

(emphasis in original).     Quoting Gilmer, the Sixth Circuit

acknowledged that the United States Supreme Court, “when

presented with an allegation of hypothetical bias, ‘decline[d]

to indulge the presumption that the parties and arbitral body

conducting a proceeding will be unable or unwilling to retain

competent, conscientious and impartial arbitrators.’”            Id.

(citing Gilmer, 500 U.S. at 30).         The Sixth Circuit recognized,

however, that McMullen’s claim went “beyond an allegation of a

potentially biased arbitrator because McMullen cites a lack of

fairness inherent in the arbitrator-selection process.”            Id.

The Sixth Circuit explained that the employer’s arbitration

agreement “grants one party to the arbitration unilateral

control over the pool of potential arbitrators.          This procedure

prevents [the employer’s arbitration program] from being an

effective substitute for a judicial forum because it inherently

lacks neutrality.”    Id.   (footnote omitted).

    Like Gentry, McMullen’s employer also argued that “Gilmer

clearly establishes that the preferred method of challenging

allegations of bias is to pursue the underlying claims through

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the arbitration process and then seek review only ‘[w]here there

was evident partiality or corruption in the arbitrators [under 9

U.S.C. § 10].’”         355 F.3d at 494 n.7.    The Sixth Circuit

disagreed.      The court stated, “While this is true for

allegations of potential or hypothetical bias among the

arbitrators, it does not apply to an allegation, as is present

here, that the arbitrator-selection process is fundamentally

unfair. . . .         [P]rocedural unfairness inherent in an

arbitration agreement may be challenged before the arbitration.”

Id.    As such, the Sixth Circuit recognized, “When the process

used to select the arbitrator is fundamentally unfair, as in

this case, the arbitral forum is not an effective substitute for

a judicial forum, and there is no need to present separate

evidence of bias or corruption in the particular arbitrator

selected.”      Id.

       Several cases since McMullen have also explored fundamental

fairness in arbitrator-selection clauses.            In Walker, 400 F.3d

370, plaintiff employees filed a complaint for FLSA violations

against the defendant employer, Ryan’s Family Steak Houses, Inc.

(“Ryan’s”).      400 F.3d at 373.      Ryan’s moved to compel

arbitration and to dismiss the complaint.            Id.   The district

court denied the motion, concluding, inter alia, that the

arbitration forum outlined in the arbitration agreements between

employer and employees did not provide for effective vindication

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of statutory claims and was an inappropriate substitute for the

judicial forum.    Id.   The Sixth Circuit affirmed.        400 F.3d at

372.

       In the Walker case, the employees signed arbitration

agreements with Employment Dispute Services Inc., (“EDSI”), not

their employer, Ryan’s.     400 F.3d at 374.      Ryan’s had entered

into a contract with EDSI to have EDSI administer an employment

dispute resolution program.      Id.     By entering into the

arbitration agreements with EDSI, the employees agreed to submit

all employment disputes with Ryan’s to binding arbitration with

EDSI.    400 F.3d at 375.   The arbitration rules provided that

EDSI would select a panel of three potential arbitrators from

the following separate pools:       “(1) supervisors or managers of

an employer signatory to an agreement with EDSI; (2) employees

who are non-exempt from the wage and hour protections of the

Fair Labor Standards Act; and (3) attorneys, retired judges, or

other competent legal professional persons not associated with

either party.”    Id.    From the pool of potential arbitrators

selected by EDSI, the employee and employer would alternately

strike names until only one name remained.         400 F.3d at 376.

       In Walker, the Sixth Circuit again acknowledged the general

rule, set forth in Gilmer, that a party cannot avoid the

arbitration process simply by alleging the arbitration panel

will be biased, because 9 U.S.C. § 10 allows for the vacation of

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an arbitration award, post-arbitration, for evident partiality

in the arbitrator.    400 F.3d at 385.      The Walker Court also

recognized the exception set forth in McMullen for pre-

arbitration challenges to the fundamental fairness of the

arbitrator-selection process.       Id.    The Walker court then held

that EDSI’s arbitral forum was not neutral and, therefore, the

arbitration agreements were unenforceable.           400 F.3d at 385-86.

    The specific evidence the Walker court considered was that

EDSI was a for-profit business, and Ryan’s annual fee accounted

for over 42% of EDSI’s gross income in the year the employees

filed their complaint.     400 F.3d at 386.        Thus, “[g]iven the

symbiotic relationship between Ryan’s and EDSI, Ryan’s

effectively determines the three pools of arbitrators, thereby

rendering the arbitral forum fundamentally unfair to claimants

who are applicants or employees.”         Id.     The Sixth Circuit

ultimately concluded that “EDSI’s and Ryan’s arbitration scheme

does not allow for the effective vindication of Plaintiffs’ FLSA

claims.”   400 F.3d at 388.     The Sixth Circuit thus declined to

enforce the arbitration agreements.         Id.

    In Geiger v. Ryan’s Family Steak Houses, Inc., 134

F.Supp.2d 985 (S.D. Ind. 2001), the United States District Court

for the Southern District of Indiana also had occasion to

consider the arbitration agreement between EDSI and employees of

Ryan’s.    In that case, plaintiff employees sued Ryan’s under

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Title VII of the Civil Rights Act of 1964.            134 F.Supp.2d at

988.    As with Walker, the plaintiff employees’ arbitration

agreement with EDSI allowed EDSI to select the three pools of

arbitrators, and the employer and employee would alternately

strike names from the pools of arbitrators until only one name

remained.      134 F.Supp.2d at 990-91.       The district court held,

“[T]here is a strong potential for bias in the selection of the

arbitration panel.”        134 F.Supp.2d at 995.      This was because

EDSI received payment from its agreements with Ryan’s and “thus

clearly has an incentive to maintain its contractual

relationship with Ryan’s . . . while applicants or employees

. . . have no leverage. . . .”          Id.   Further, the court noted,

“EDSI also retains full authority to select both the Rules for

arbitration as well as the pools of potential arbitrators.                Such

power in the face of the potential for bias on the part of EDSI

in favor of employers such as Ryan’s renders it unlikely that

applicants/employees will participate in an unbiased forum.”

Id.    (footnote omitted).

       McMullen, Walker, and Geiger all hold that courts may

entertain pre-arbitration challenges to the arbitrator-selection

process, because such claims are the exception to the general

rule that challenges to arbitrator bias must await the

completion of arbitration under 9 U.S.C. § 10.             Further,



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McMullen and Walker hold that the standard by which a court

analyzes arbitrator-selection clauses is fundamental fairness.6

     B.   The ICA’s “Actual Bias” Holdings

     The ICA initially properly analyzed the Nishimuras’ case

for fundamental fairness under McMullen and Walker.            133 Hawaii

at 228, 325 P.3d at 640.       The ICA then distinguished those two

cases and held that the Nishimuras did not present facts showing

that the arbitrator-selection clause in the HBLW was

fundamentally unfair.      Id.   The ICA then proceeded, however, to

hold, “In order to avoid enforcement of an allegedly

unconscionable arbitration clause, Nishimura Plaintiffs were

required to present evidence of actual partiality or bias of the

arbitration service designated by PWC or the neutral arbitrator

selected.”    Id. (emphasis added).       Later in the opinion, the ICA

also held, “Because Nishimura Plaintiffs failed to prove that

the arbitration selection process would necessarily result in

actual partiality or bias, the circuit court should have

     6
             We note that “fundamental fairness” in arbitration is a concept
our appellate courts have already recognized. In In re Arbitration between
United Pub. Workers, AFSCME, Local 646, AFL-CIO & City & Cnty. of Honolulu,
119 Hawaii 201, 210, 194 P.3d 1163, 1172 (App. 2008), the ICA quoted the
Prefatory Note to the revised Uniform Arbitration Act (2000), the basis of
HRS Chapter 658A, for the proposition that “arbitration is a consensual
process in which autonomy of the parties who enter into arbitration
agreements should be given primary consideration, so long as their agreements
conform to notions of fundamental fairness. . . .” (Emphasis added). See
also Kay v. Kaiser Found. Health Plan, Inc., 119 Hawaii 219, 229, 194 P.3d
1181, 1191 (App. 2008) (“Arbitrators wield great power over the scope and
nature of the arbitration proceedings and all determinations of fact and law,
with virtually no appellate review of their decisions. The fundamental
‘fairness’ of these expansive powers must be grounded in the assurance that
neutral arbitrators are indeed neutral. . . .”) (Emphasis added).

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confined judicial review to the fairness of the completed

arbitration award, at which time 9 U.S.C. § 10 could provide for

vacating the award upon a finding that the arbitrators acted

with evident partiality.”      133 Hawaii at 229, 325 P.3d at 641

(emphasis added).

    In support of this “actual bias” standard, the ICA cited to

Doctor’s Assocs., Inc., 85 F.3d 975.        Doctor’s Assocs., Inc.,

however, did not involve a pre-arbitration challenge to the

fundamental fairness of an arbitrator-selection provision.

Rather, in that case, the defendants alleged that the

arbitration service named in the arbitration agreement (American

Arbitration Association or “AAA”) “relies on [the plaintiffs] to

provide it with repeat business and thus has a bias in favor of

[that party].”    85 F.3d at 980.     The Second Circuit in that case

rejected the argument, stating, “Defendants have failed to

present any credible evidence indicating bias on the part of the

AAA –- or its arbitrators –- in favor of [the plaintiffs] in

this case, particularly because Defendants’ claims have not yet

gone to arbitration.”     85 F.3d at 981 (citing 9 U.S.C. § 10(a)).

Importantly, nowhere in the Doctor’s Assocs., Inc. opinion does

the “actual bias” standard appear.

    Although not cited in the ICA’s published opinion, it

appears that the “actual bias” language comes from Phillips, 179

F.Supp.2d 840, which Gentry cited in its Opening Brief.

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Phillips is also a case in which the fundamental fairness of an

arbitrator-selection provision was not at issue.           In that case,

the arbitration agreement called for AAA to arbitrate the

dispute.   179 F.Supp.2d at 843.      The plaintiff in Phillips

argued that “arbitration is inappropriate because the American

Arbitration Association is biased in favor of the defendants,”

and analogized her case to the series of cases involving EDSI.

179 F.Supp.2d at 845.     The United States District Court for the

Northern District of Illinois rejected the argument, holding,

“[The EDSI] cases are clearly distinguishable; in those cases,

the defendants had ongoing service contracts with ESDI [sic] and

paid ESDI [sic] to maintain an employment dispute resolution

forum.   Here, [the plaintiff] provides no evidence that the AAA,

one of the country’s leading non-for-profit dispute resolution

organizations, is on defendants’ payroll or any other evidence

of actual bias on the part of the AAA.”         Id. (emphasis added).

    In Phillips, only the bias of AAA was alleged, not the

process by which AAA was selected as the arbitrator;

nevertheless, the plaintiff and the district court analyzed the

bias claim using the EDSI line of cases.         While the financial

interest linking EDSI to Ryan’s in Walker and Geiger arguably

demonstrates “actual bias,” Phillips overstates the holding in

those cases to conclude that only “actual bias” rendered the

arbitrator-selection provisions fundamentally unfair.

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    “Actual bias” need not be proven in a pre-arbitration

challenge to an arbitrator-selection provision, where, as in

McMullen, the mere fact of one party’s “exclusive control over

the pool of potential arbitrators from which the arbitrator is

selected” renders the arbitrator-selection process fundamentally

unfair.   355 F.3d at 487, 494.      In other words, an arbitrator-

selection provision “grant[ing] one party to the arbitration

unilateral control over the pool of potential arbitrators”

prevents arbitration “from being an effective substitute for a

judicial forum because it inherently lacks neutrality.”            355

F.3d at 494.

    Further, contrary to Gentry’s argument and the ICA’s

holding, the Nishimuras did not need to await PWC’s selection of

the arbitration service and arbitrator before challenging the

enforceability of the HBLW’s arbitrator-selection provision.                We

note that in McMullen, the Sixth Circuit focused on the process

of arbitrator selection, not any actual arbitrator or his or her

alleged bias, even though an arbitrator had been selected in

that case.   See 355 F.3d at 488.        Accordingly, the Sixth Circuit

did not conclude that “actual bias” must be shown to render an

arbitrator-selection process unfair; rather, the Sixth Circuit

held, “When the process used to select the arbitrator is

fundamentally unfair, . . . there is no need to present separate



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evidence of bias or corruption in the particular arbitrator

selected.”     355 F.3d at 494 n.7.

    In short, we adopt the “fundamental fairness” standard

under McMullen to review pre-arbitration challenges to the

arbitrator-selection process.         There is no requirement for a

party challenging the arbitration-selection process to show

“separate evidence of bias,” and, therefore, no requirement to

show “actual bias” on the part of any particular arbitrator.

Hence, the ICA erred in its holding that the Nishimuras needed

to demonstrate “actual bias” in order to invalidate the HBLW’s

arbitrator-selection provision.         133 Hawaii at 228-29, 325 P.3d

at 640-41.

    C.       Application of the “Fundamental Fairness” Standard to
             the Instant Case

    The HBLW arbitration provision states, in relevant part,

the following:

             VIII. Binding Arbitration Procedure
             Any disputes between YOU and US, or parties acting on OUR
             behalf, including PWC, related to or arising from this
             LIMITED WARRANTY, the design or construction of the HOME or
             the COMMON ELEMENTS or the sale of the HOME or transfer of
             title to the COMMON ELEMENTS will be resolved by binding
             arbitration. Binding arbitration shall be the sole remedy
             for resolving any and all disputes between YOU and US, or
             OUR representatives. . . .

             The arbitration shall be conducted by Construction
             Arbitration Services, Inc., or such other reputable
             arbitration service that PWC shall select, at its sole
             discretion, at the time the request for arbitration is
             submitted.

Ordinarily, an arbitration agreement is valid unless there is

some basis to refuse to enforce it.          9 U.S.C. § 2.     In this
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case, PWC’s identification with Gentry provides a basis for

finding the arbitrator-selection provision unenforceable as

fundamentally unfair.     The plain language of the arbitration

agreement shows that PWC acts on Gentry’s behalf in

administering the HBLW, which would include selecting an

arbitration service, at PWC’s “sole discretion,” now that

Construction Arbitration Services, Inc. is no longer available.

As PWC acts on Gentry’s behalf under the HBLW, the Nishimuras’

concern that PWC’s exercise of its sole discretion is akin to

Gentry’s exercise of such discretion is legitimate.           As such,

under McMullen, the HBLW’s arbitrator-selection provision, which

“grants one party to the arbitration unilateral control over the

pool of potential arbitrators . . . prevents [arbitration under

the parties’ agreement] from being an effective substitute for a

judicial forum because it inherently lacks neutrality”;

therefore, the arbitrator-selection process is fundamentally

unfair.   355 F.3d at 494, 494 n.7.       Accordingly, the circuit

court properly severed and struck the arbitrator-selection

provision.   Although the circuit court severed and struck the

arbitrator-selection provision due to “potential conflict of

interest,” and not expressly due to “fundamental unfairness,” we

may “affirm a judgment of the lower court on any ground in the

record that supports affirmance.”        Canalez v. Bob’s Appliance



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Serv. Ctr., Inc., 89 Hawaii 292, 301, 972 P.2d 295, 304 (1999)

(citations omitted).

     D.   Fashioning Relief for an Unenforceable Arbitrator-
          Selection Provision

     We next address whether the circuit court had the authority

under RCCH Rule 12.2 to order the parties to meet and confer to

select a local arbitration service.        As Gentry points out, RCCH

Rule 12.2(a) authorizes the circuit court to order non-binding

arbitration, and the parties have agreed to binding arbitration

under the HBLW:

          Authority to order. The court, sua sponte or upon motion by
          a party, may, in exercise of its discretion, order the
          parties to participate in a non-binding Alternative Dispute
          Resolution process (ADR or ADR process) subject to terms
          and conditions imposed by the court. ADR includes
          mediation, summary jury trial, neutral evaluation, non-
          binding arbitration, presentation to a focus group, or
          other such process the court determines may be helpful in
          encouraging an economic and fair resolution of all or any
          part of the disputes presented in the matter. . . .

(Emphasis added).    On the other hand, as the Nishimuras

point out, the circuit court did not order the parties into

binding arbitration under RCCH Rule 12.2 to settle the

construction defect dispute.      Rather, the circuit court

ordered the parties to meet and confer to select a local

arbitration service, which constitutes such other “process

the court determines may be helpful in encouraging an

economic and fair resolution of all or any part of the

disputes presented in the matter.”        Thus, pursuant to RCCH

Rule 12.2, the circuit court’s action was appropriate.

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      Further, the circuit court’s order provided, “If

Plaintiffs and Gentry are unable to agree, the Court shall

select a local arbitration service for this matter.”              This

part of the order followed the Nishimuras’ counsel’s

request to the circuit court: “If we cannot come to an

agreement [about who we want to arbitrate this case], you

select somebody.”      Whether or not RCCH Rule 12.2 applied, 9

U.S.C. § 5 provided authority for the circuit court to

select an arbitrator in such a situation:

            If in the agreement provision be made for a method of
            naming or appointing an arbitrator or arbitrators or an
            umpire, such method shall be followed; but if no method be
            provided therein, or if a method be provided and any party
            thereto shall fail to avail himself of such method, or if
            for any other reason there shall be a lapse in the naming
            of an arbitrator or arbitrators or umpire, or in filling a
            vacancy, then upon the application of either party to the
            controversy the court shall designate and appoint an
            arbitrator or arbitrators or umpire, as the case may
            require, who shall act under the said agreement with the
            same force and effect as if he or they had been
            specifically named therein; and unless otherwise provided
            in the agreement the arbitration shall be by a single
            arbitrator.

Therefore, we affirm in toto the circuit court’s order granting

in part and denying in part Gentry’s motion to compel

arbitration, as well as its order denying Gentry’s motion for

reconsideration of that order.

V.   Conclusion

       The ICA erred in requiring a party challenging an

arbitrator-selection provision to show evidence of “actual

bias.”    In resolving a challenge to an arbitrator-selection


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provision, we apply the “fundamental fairness” standard

articulated by the United States Court of Appeals for the Sixth

Circuit.   In the instant case, we conclude that the arbitrator-

selection provision is fundamentally unfair because it

authorized one party’s agent to exercise its sole discretion in

selecting an arbitration service to hear a dispute between that

party and the plaintiffs.      We therefore vacate the ICA’s

Judgment on Appeal, and affirm the circuit court’s “Order

Granting in Part and Denying in Part Defendant Gentry Homes,

Ltd.’s Motion to Compel Arbitration Filed on August 29, 2012”

and its “Order Denying Gentry Homes’ Motion for Reconsideration

of the Order Granting in Part and Denying in Part Gentry Homes,

Ltd.’s Motion to Compel Arbitration [Filed August 29, 2012],

Filed November 13, 2012.”

Melvin Y. Agena                   /s/ Mark E. Recktenwald
for petitioners
                                  /s/ Paula A. Nakayama
Ryan H. Engle
for respondent                    /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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