from the United States District Court for the Southern
District of Texas
KING, SMITH, and WILLETT, Circuit Judges.
an arbitration panel awarded Defendant Clifford
Ashcroft-Smith $274, 813.58, Plaintiff Light-Age, Inc.,
petitioned the district court to vacate the award, arguing
that the panel was improperly constituted. The district court
disagreed and confirmed the award. Now, Light-Age asks this
court to reverse the district court and render judgment in
its favor. Light-Age waived its challenge to the constitution
of the panel by failing to object at the time of the
arbitration hearing. Accordingly, we AFFIRM.
Clifford Ashcroft-Smith, an attorney, provided legal services
to plaintiff Light-Age, Inc., over a period of five years.
Light-Age refused to pay Ashcroft-Smith $344, 990.58 in fees,
arguing they were excessive. The parties agreed to arbitrate
their dispute under the Houston Bar Association's
("HBA") fee-dispute program. As part of their
arbitration agreement, the parties agreed "to be
governed and bound" by the HBA Fee Dispute
Committee's ("FDC") rules and regulations.
FDC's rules authorize the FDC Chair to appoint
arbitration panels. Each arbitration panel must consist of
three arbitrators, one of whom "shall be a non-lawyer
member." The rules state that "[n]on-lawyers may
not have, other than as consumers, any financial interest,
direct or indirect, in the practice of law." The rules
also vest the FDC with the power to interpret its own rules.
selected Ana Davis as the nonlawyer member of the
parties' arbitration panel. Davis is not a lawyer, but
she is a full-time payroll manager for Jackson Walker,
L.L.P., a law firm. Leading up to the arbitration hearing,
Davis exchanged multiple emails with the parties that listed
Jackson Walker as her employer in the signature line.
Nevertheless, Light-Age maintains that it did not discover
that Davis was a law-firm employee until after the
arbitration hearing. Once he learned of Davis's
employment, Light-Age CEO Don Heller, who represented
Light-Age in the arbitration without the assistance of
counsel, called the FDC Chair to register his objection.
panel subsequently returned its decision, awarding
Ashcroft-Smith $274, 813.58. Light-Age petitioned the
district court to vacate the award. Interpreting the
FDC's rules de novo, the district court determined that
Davis was qualified to serve as a nonlawyer arbitrator and
confirmed the award. Light-Age appeals.
review a district court's order confirming an arbitration
award de novo. See Rainier DSC 1, L.L.C. v. Rainier
Capital Mgmt., L.P., 828 F.3d 362, 364 (5th Cir. 2016).
We "'may affirm the district court's decision on
any basis presented to the district court' and argued in
the district court." U.S. Sec. & Exch.
Comm'n v. Kahlon, 873 F.3d 500, 504 (5th Cir. 2017)
(quoting Am. Family Life Assurance Co. of Columbus v.
Biles, 714 F.3d 887, 896 (5th Cir. 2013)).
litigation, a party to an arbitration must preserve any
argument it wants to raise on later review. See Gateway
Techs., Inc. v. MCI Telecommc'ns Corp., 64 F.3d 993,
998 (5th Cir. 1995), abrogated on other grounds by Hall
St. Assocs. v. Mattel, Inc., 552 U.S. 576 (2008). Thus,
"objections to the composition of arbitration panels
must be raised 'at the time of the hearing.'"
Brook v. Peak Int'l, Ltd., 294 F.3d 668, 674
(5th Cir. 2002) (quoting Bernstein Seawell & Kove v.
Bosarge, 813 F.2d 726, 732 (5th Cir. 1987)). We have
recognized, albeit in an unpublished decision,  that a party to
an arbitration waives an objection to an arbitrator's
conflict of interest if the party has constructive knowledge
of the conflict at the time of the arbitration hearing but
fails to object. See Dealer Comput. Servs., Inc. v.
Michael Motor Co., 485 Fed.Appx. 724, 728 (5th Cir.
2012) (unpublished). Other circuits considering this issue
have applied a constructive-knowledge standard to
parties' objections to arbitrators' conflicts of
interest as well. See Goldman, Sachs & Co. v. Athena
Venture Partners, L.P., 803 F.3d 144, 148-49 (3d Cir.
2015); Lucent Techs., Inc. v. Tatung Co., 379 F.3d
24, 28 (2d Cir. 2004); Fid. Fed. Bank, FSB v. Durga Ma
Corp., 386 F.3d 1306, 1313 (9th Cir. 2004); JCI
Commc'ns, Inc. v. Int'l Bhd. of Elec. Workers, Local
103, 324 F.3d 42, 51-52 (1st Cir. 2003); Kiernan v.
Piper Jaffray Cos., 137 F.3d 588, 593 (8th Cir. 1998).
these cases persuasive. Light-Age attempts to distinguish
these cases because they address arbitrators' conflicts
of interest, which may be vacated under 9 U.S.C. §
10(a)(2), whereas this case concerns an arbitrator not
selected in accordance with the parties' agreement, which
may be vacated under 9 U.S.C. § 5. But Light-Age does
not explain why this difference in statutory authority for
vacatur means a different waiver standard should apply. On
the contrary, applying a constructive-knowledge standard here
would serve the same policy interests cited by the courts
applying constructive knowledge to find waiver in
arbitrator-partiality cases: efficiency and finality of the
arbitration process. See, e.g., Goldman, Sachs
& Co., 803 F.3d at 149 ("The rationale for
applying constructive knowledge in the arbitration context
makes good sense. It both encourages parties to conduct
adequate due diligence prior to issuance of the award and
promotes the arbitration goals of efficiency and
finality."). Thus, we find that the
constructive-knowledge standard applies in this context.
therefore conclude that Light-Age waived its objection to
Davis's participation on the panel. Light-Age had
constructive knowledge that Davis worked for a law firm at
the time of the arbitration hearing; it could have discovered
that Jackson Walker was a law firm simply by clicking on the
link provided in Davis's email signature or running a
brief internet ...