A dispute regarding attorney Steven Johnson’s right to fees from William Drake, an individual who hired Johnson to pursue a product liability claim, was made considerably more complicated by conflicting forum provisions in a contract with the attorney and the settlement agreement in the MDL that eventually resolved Drake’s product liability claim.

Drake received a hip implant that was later recalled. Drake hired Mr. Johnson to represent him in his claim against the manufacturer of the implant, signing a contract providing that fee disputes would be arbitrated in Texas. Drake later terminated Johnson and hired a new lawyer, who filed lawsuit against the manufacturer, which became part of an MDL. Drake’s claims were then settled by the manufacturer, and the settlement agreement specified the use of a special master to settle disputes regarding attorneys’ fees.

Johnson commenced an arbitration proceeding against Drake in Texas regarding his fees, and Drake initiated arbitration proceedings against Johnson before the special master regarding the same issues. The special master dismissed Drake’s arbitration proceeding because it was already pending in a different arbitral forum. The Texas arbitrator then issued an award in Johnson’s favor. Drake moved, in the Ohio federal district court handling the MDL, to enforce the terms of the settlement agreement and vacate the Texas arbitration award. The court granted to motion to enforce the settlement but did not decide whether to vacate the apparently conflicting Texas arbitration award, and Johnson appealed this decision to the Sixth Circuit.

The Sixth Circuit started and ended its consideration of the matter with the question of jurisdiction, which Johnson argued existed because (1) the district court’s decision was a final decision appealable under 28 U.S.C. § 1291, and (2) it was appealable under section 16 of the Federal Arbitration Act. The court disagreed. First, the court found that the motion to vacate the Texas arbitration award was one of the main issues before the court, and the district court’s failure to rule on that motion meant that there was no final resolution of the litigation on the merits. Second, the court found that section 16 of the FAA did not apply because the district court did not address the Texas arbitration award, rejecting an argument that it was implicitly vacated by the ruling enforcing the settlement. Lacking jurisdiction, the Sixth Circuit remanded the case to the district court with instructions that it consider whether the Texas arbitration award should be confirmed or vacated.

Drake v. DePuy Orthopaedics, Inc., No. (6th Cir. Nov. 30, 2018)