Cho v. Mallon & McCool, LLC
263 F. Supp. 3d 226
| D.D.C. | 2017Background
- Plaintiff Young N. Cho filed an eleven-count complaint alleging fraudulent and negligent conduct by his former attorneys (Mallon & McCool, LLC; Steven McCool; Joseph Mallon) relating to excessive legal fees.
- Cho initially sued in D.C. Superior Court in February 2016, then removed to federal court; he did not request arbitration during that action and voluntarily dismissed it in October 2016.
- Cho refiled a substantially similar complaint in February 2017 in D.C. Superior Court; defendants removed and filed motions to dismiss.
- Throughout both federal proceedings, Cho litigated actively (opposed motions to dismiss, sought extensions, filed sur-reply requests) and did not invoke arbitration until July 2017—over a year after initial filing.
- Cho moved to compel arbitration and stay the case under the Federal Arbitration Act, relying on local ACAB and D.C. Bar rules that treat fee disputes as arbitrable when a client requests arbitration.
- The court denied Cho’s motion, finding he forfeited (and alternatively waived) any right to arbitrate by failing to invoke arbitration at the first available opportunity and by engaging in litigation that imposed costs on defendants and the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cho may compel arbitration under the FAA | Cho argued ACAB and D.C. Bar Rules render fees arbitrable and he should be allowed to stay and arbitrate now | Defendants argued Cho forfeited/waived arbitration by litigating for over a year without invoking arbitration | Denied — Cho forfeited any right to arbitration by not invoking it at the first available opportunity and acting inconsistently with arbitration rights |
| Whether failure to invoke arbitration early amounts to forfeiture/waiver | Cho contended delays were justified (e.g., settlement talks, preserving statute of limitations) | Defendants showed prolonged litigation activity and incurred costs; no record support for settlement assertions | Court found forfeiture (and alternatively waiver) because Cho didn’t timely assert arbitration and imposed substantial costs |
| Whether post-filing conduct imposed little cost (allowing arbitration despite delay) | Cho claimed minimal prejudice to defendants and informal settlement discussions | Defendants documented active defense work, motions to dismiss, and briefing; no record of settlement discussions | Court held Cho’s conduct imposed significant costs, overcoming any presumption to allow later arbitration |
| Applicability of FAA’s "written agreement" requirement via Bar/ACAB rules | Cho relied on rules deeming lawyers to have agreed to arbitrate fee disputes when client requests arbitration | Defendants did not contest existence of rules but contended procedural default in asserting arbitration | Court assumed arguendo those rules could supply an arbitration basis but ruled procedural forfeiture/waiver bars relief |
Key Cases Cited
- Zuckerman Spaeder, LLP v. Auffenberg, 646 F.3d 919 (D.C. Cir. 2011) (failure to invoke arbitration at first available opportunity presumptively forfeits right to stay under FAA)
- Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772 (D.C. Cir. 1987) (arbitration rights, like contract rights, can be waived by litigation conduct)
- Khan v. Parsons Glob. Servs., Ltd., 521 F.3d 421 (D.C. Cir. 2008) (waiver analysis examines totality of circumstances and whether conduct is inconsistent with arbitration)
- Davis Corp. v. Interior Steel Equip. Co., 669 F. Supp. 32 (D.D.C. 1987) (minimal litigation participation that consistently asserts arbitration does not constitute waiver)