REPRESENTATIVE MATTERS

Representative Arbitrations and Mediations

Shawn Aiken

 During the past 25 years, Shawn Aiken has served as mediator or arbitrator in over 1,000 commercial cases, involving claims arising out of business torts; breach of contract, including especially real estate and corporate and transactions, license and franchise agreements, and construction and development projects; legal and accounting malpractice; and, claims in the areas of insurance, healthcare, and employment.


Representative arbitrations and mediations include the following matters:

Closely Held Entities

  • Frequently mediated cases involving members, managers, co-venturers, shareholders, officers, and directors arising out of contract, fiduciary duty, and statutory duties raising both legal and equitable remedies, including dissolution, dissociation, receivership, injunction, and accounting
  • Arbitrated (panel) $30 million dispute between partners over development of residential project
  • Often arbitrated joint-venturers' and members' competing claims of breach of fiduciary duty and contract (express and implied covenant) including application of business judgment rule and aspects of corporate governance
  • Over the past 5 years, arbitrated three disputes over buyout price and terms for physician's interest in LLC under terms of operating agreement
  • Arbitrated architectural firm's and former member's claim for breach of operating agreement, including buy-sell provision, claimed failure to pay redemption price for member's interest, misappropriation of trade secrets, and data theft
  • Mediated and arbitrated disputes among law firm members over treatment and status of personal injury clients, including arbitration award determining value of interest of departing member of firm
  • Mediated numerous disputes in the cannabis industry, including terminations of purchase agreements; breach of purchase agreements; disputes over post-closing provisions; and, performance of management agreements, among other issues
  • Arbitrated claims in the cannabis industry, including multi-million dollar disputes over sales agreements
  • Often mediated cases involving claims for oppression remedies, including control of derivative claims, reinstatement of employment status, forced buy-out, and threatened dissolution
  • Arbitrated claim for equalization payment on dissolution of partners' company operating behavioral health facilities
  • In family law matters, served as special master, for example, liquidating commercial real estate; mediated value of community-held business; and, assessed and negotiated disposition of interest in partnership formed by husband and wife during marriage
  • Arbitrated deadlock between co-venturers over terms of dissolution of entity formed to develop raw land on Gila River Indian Reservation; under joint venture agreement, arbitrator selected one party's last, best offer and, in final award, resolved numerous other disputes over dissolution rights and winding up of venture's affairs
  • Arbitrated co-venturers' dispute over withdrawal of members and dissolution of nutraceutical enterprise, including supervision of wind-up (settlement of loan, assignment of tax losses, preparation of final tax return, etc.) and entry of wind-down order

Other Commercial Disputes

  • Arbitrated many disputes seeking interim relief and final award concerning claims and defenses to enforcement of non-solicitation and other restrictive covenants (e.g., employees, former and current customers, non-disclosure, non-disparagement, confidentiality)
  • Arbitrated multi-million dispute among current and former members over division of proceeds of sale of large group medical practice to national private equity firm
  • Often mediated employer and employee disputes over trade secrets and breaches of employment agreement, including hands-off, non-solicitation, confidentiality, and non-competition covenants
  • Mediated several cases raising claims under the FLSA
  • Mediated dispute over formation of partnership and title to real property
  • Mediated many disputes over formation and terms of oral partnership, joint venture
  • Arbitrated claim for commissions payable by, for example, former employer on purchase orders generated by sales representative; payment to beneficiaries of estate on sales commissions in telecommunications industry; and more
  • Arbitrated dispute over "best efforts" provision and payment of commissions on worldwide sale of armored vehicles
  • Arbitrated dispute over sale of dental practice, including claimed breaches of post-closing restrictive covenants
  • Over the past 20 years, arbitrated and mediated many cases arising out purchase and sale of businesses, including, for example, transportation, accounting, restaurant, and other industries
  • Mediated claim for commissions payable by former partner on sales of commercial property following dissolution of jointly-owned entity
  • Mediated cases involving claims relating to loan origination and servicing fees
  • Mediated disputes involving claimed joint venture and ownership interests in commercial and residential real property
  • Arbitrated (panel) inter-tribal dispute over gambling rights licensing agreement
  • Arbitrated dispute arising out of settlement agreement between real estate co-venturers
  • Mediated and arbitrated disputes involving claims of usurpation of corporate opportunity
  • Over the past 20 years, on numerous applications for award of attorneys' fees in final arbitration awards, resolved issues including allocation for partial success; application of 'genuine obligation to pay' fees requirement; assessment of prevailing party under controlling statute and contractual fee provision; entitlement to award of fees under controlling agreements, American Arbitration Association R-47(d), and A.R.S. § 12-341.01(A); bases for measure of reasonableness, including lodestar; effect of redacted time entries; and, many other issues
  • Arbitrated (panel) dispute over agreement for purchase of water company and transfer application to Arizona Corporation Commission
  • Arbitrated dispute between largest local hospital group and national insurer over reimbursement for inpatient hospital services to patients enrolled in Medicare Advantage plan
  • Over the last 15 years, arbitrated many consumer cases brought under both the American Arbitration Association Commercial and Consumer Arbitration Rules, including matters in the automobile sales, banking, credit card, telecommunications, academic testing, ride service, and other industries, raising issues such as individual liability for corporate credit-card charges, consumer fraud, amount charged for transportation service, and loan account disputes
  • Arbitrated (panel) accredited investor's claim for losses stemming from purchase of units and claim for fees and costs (under indemnity provision of subscription agreement) related to District Court jury trial and appeal to Ninth Circuit Court of Appeals
  • Mediated disputes concerning compliance with and performance under software development agreements
  • Arbitrated charter school's fraud and implied covenant claims against educational software publisher for failure to adhere to Arizona's state educational standards (objectionable religious content)
  • Arbitrated disputes between multiple franchisees and franchisor in the hospitality and home products industries
  • Chaired arbitration arising out settlement agreement for declaratory relief; and, multi-million dollar claims for  liquidated damages, actual damages, and attorneys' fees
  • Mediated dispute over distributions from trust to residuary beneficiaries, including breach of statutory and fiduciary duties

Real Property

  • Arbitrated dispute between Fortune 50 companies in the defense research and manufacturing industry involving liability for repairs and capital improvements to leased commercial property
  • Mediated case arising out of tenancy and oral joint-venture agreement in the oil and solvent recycling industry, including claims for breach of lease and counterclaims for landlord's negligence and liability for fire on commercial premises 
  • Mediated case between tenants-in-common regarding development, accounting, and partition
  • Mediated adverse possession case between residential neighbors
  • Mediated access case regarding record easements and claims to prescriptive easement
  • Mediated other boundary and access disputes
  • Mediated disputes centered on claims that managing members of entities completed transactions on behalf of the entity without actual authority
  • Mediated and arbitrated many condemnation claims involving both state and local jurisdictions

Construction and Development

  • Since 2002, mediated numerous residential construction defect claims
  • Arbitrated dispute over division of revenues and other management disputes between tribal nation and developer arising out of construction of the Grand Canyon Skywalk
  • Mediated many cases involving delay claims
  • Mediated case involving claimed violations of development regulations and effect on project
  • Mediated many cases involving claims by homeowners' associations, including construction defect, delay, and breach claims

Insurance

  • Mediated coverage disputes under American Land Title Association (ALTA) insurance policies
  • Mediated several cases based on first-party bad faith claims under disability policies
  • Arbitrated multi-million-dollar dispute over loss sustained by major nursery and claim under crop insurance policy
  • Arbitrated claim for losses sustained by cotton operation in central Arizona and denial of coverage under multiple peril crop insurance policy
  • Mediated cases involving medical professional's claims for breach of contract and bad faith arising out of own-occupation disability policies
  • Mediated dispute between primary and excess carriers over allocation of loss arising out of significant underlying judgment
  • Arbitrated (panel) coverage for wrongful death arising out of accident involving transportation fleet vehicle

Business Torts

  • Mediated many cases involving claims of fraudulent transfers, including family, related entities, parent/subsidiary, and sister entities, often involving balance sheet, ability to pay, and other insolvency tests; and, veil-piercing, alter ego, and related remedies
  • Frequently mediated disputes concerning claims for interference with business relationships (and expectancy)
  • Arbitrated claims for misappropriation of trade secrets and data theft in cases arising out of terminated employment agreements
  • Mediated case involving primarily lost profits arising from terminated distributorship agreement

Professional Liability

  • Mediated landlord's claims against law firm and departing shareholders for successor liability, fraudulent conveyance, and related claims
  • Mediated many legal malpractice claims, including claims arising out of probate, tax, real estate development, litigation, transactional, appellate, and other practice areas
  • Mediated multi-million dollar dispute over legal fees for estate, transactional, and litigation work spanning nearly 10 years (including counterclaims)
  • Mediated cases asserting negligence of escrow agent (and title work)
  • Mediated cases involving negligence claims against accountants, appraisers, and surveyors
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