Don’t’ like the game? Sue the referee. How’s that working?

A recent case that has just started, got me wondering about people suing the arbitration administrator or the arbitrator.  In the case, described below, the plaintiff sued the AAA, an arbitrator, and employees, asserting a malicious prosecution theory . That’s seems to be a novel approach, but I thought I’d check. So, I looked some things up. Here is what I’ve learned.

This isn’t so great; let’s litigate!

Every so often, someone decides that arbitration just isn’t right.  And when that happens, the response is sometimes not a motion to vacate or an argument about whether someone even agreed to arbitrate. Instead, it is a lawsuit against the arbitration forum itself, or even the arbitrator personally. The theory varies. But does it ever work?

Usually – or maybe always – the answer is no.  Courts look at it this way. Arbitration has statutory remedies.  Suing the neutral or organization that administers the arbitration is not one of them. The courts generally apply the doctrine of arbitral immunity — a sibling of judicial immunity.  The organization or person administering or deciding an arbitration is not personally liable when someone is unhappy.  Judges, of course, understand this very well.  After all, in a contested case, about half the people involved are unhappy. Unless the case is settled, somebody is going to lose.

Suing the institution when you don’t like the process

In Salgat v. American Arbitration Association, Inc., a Minnesota litigant sued the AAA over how his arbitrations were being administered. He bought a truck, and when a dispute arose over trade-in and finance terms, he filed an arbitration. When he refused to pay, his case  the necessary arbitration fees, the case was suspended.  Meanwhile, the dealership filed an arbitration against him, and consolidated his case with the dealer’s case. Mr. Salgat objected and said he considered both arbitrations closed.

He then sued  AAA for  negligent   misrepresentation,  fraud,  deceptive  practices,  negligence,  and breach  of  the  covenant  of  good faith and fair dealing.  He sought injunctive relief preventing AAA “from administering any  arbitration  matter”  for  which  was a party; and  requested  attorney  fees.  The district court granted a motion to dismiss.

Minnesota Court of Appeals held that AAA’s activities were squarely within the arbitral process.  That meant they were immune from suit. Dissatisfaction with administration was not transformed into a tort claim simply by filing a complaint.¹

Suing the neutral and the institution over alleged bias

In Pullara v. American Arbitration Association, Inc., the plaintiff named both the AAA and the arbitrator.  His arbitration concerning a dispute about remodeling his apartment, in the words of the court, “did not turn out as [he] had hoped.”   Allegations included bias and improper rulings.  These arguments are often the basis for petitions to vacate.  But here they were repackaged as civil damages claims. The Texas court applied arbitral immunity, explaining that actions taken in an adjudicative capacity are protected. The proper vehicle for disagreement with an award is a statutory challenge, not a lawsuit against the individual who issued it.²

Suing over a change in roster

Owens v. American Arbitration Association, Inc. presented a different angle. The  AAA removed an arbitrator from a panel that had issued Mr. Owens an initial award in his favor.  The remaining arbitrators then issued the final award, again in his favor.  The state court then vacated the award. 

Mr. Owens sued AAA for breach of contract, unjust enrichment, tortious interference with contract, and tortious interference with prospective economic advantage. AAA removed the case to federal court, and the court determined that Owens' claims were barred by arbitral immunity.

The Eighth Circuit affirmed, holding that removal of an arbitrator is just as much a part of the arbitral process as appointment. Administrative adjustments are not actionable misconduct; they are functions inherent in running a dispute-resolution system.³

And now, the new One

As I noted, the most recent entry in the suing the arbitrator and provider is Barrett Wissman v. American Arbitration Association, Inc. The case is still in early days, and details are few. What we do know is that the plaintiff sued the AAA, an arbitrator, and employees, asserting a malicious prosecution theory tied to the continuation of arbitration and seeking significant damages. No substantive rulings have been issued yet.

Assuming the facts are not much more complicated than we now know, you can probably predict how this will go based on the cases we have been discussing. But we’ll see.

A quick caveat

None of this is to say arbitration providers are always immune from suit. They aren’t. 

Morgan Phillips, Inc. v. JAMS/Endispute, L.L.C ⁵  is of interest. There the court held that arbitral immunity did not apply when an arbitrator withdrew without ethical cause after hearing evidence and argument, offered only to mediate, and refused to issue an award, because such conduct undermines arbitration’s adjudicatory function. At least in California,  the doctrine of arbitral immunity does not apply the arbitrator’s breach of contract by failing to make any decision at all. The plaintiff was allowed to pursue claims for breach of contract and negligent breach of the duty to provide binding arbitration services.

And, your point?

Here is the point I’m making in this article: after searching for it (and with the help of my robot  friend ChatGPT), I cannot find a reported case in which a plaintiff succeeded on damages claim against AAA or JAMS based on the provider’s core work of administering an arbitration, or against an arbitrator based on the core work of deciding one.

These cases share a common feature: they are not simply objections to arbitration clauses or awards. They are attempts to redirect frustration toward the people and institutions that make arbitration possible. Neither arbitration nor litigation is perfect. But suing the referee has yet to prove a winning strategy.

End Notes

1. Salgat v. American Arbitration Association, Inc., No. A22-1599 (Minn. Ct. June 20, 2023).

2. Pullara v. American Arbitration Association, Inc., No. 06-05-00087-CV (Tex. App. May 11, 2006). No. 06-05-00087-CV

3. Owens v. American Arbitration Association, Inc., No. 16-1055 (8th Cir. Nov. 18, 2016). No. 16-1055

4. Barrett Wissman v. American Arbitration Association, Inc., Los Angeles County Superior Court (filed 2026; complaint alleging malicious prosecution; no substantive rulings as of this writing).

5. Morgan Phillips v. Jams/Endispute, L.L.C., 44 Cal.Rptr.3d 782, 140 Cal.App.4th 795 (Cal. App. 2006)