United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2005 Decided July 18, 2006
No. 05-7017
DAVID S. KURKE,
APPELLEE
v.
OSCAR GRUSS AND SON, INC.,
APPELLANT
Consolidated with
05-7018, 05-7021
Appeals from the United States District Court
for the District of Columbia
(No. 04cv00870)
Robert S. Churchill argued the cause for appellant/cross-
appellee Oscar Gruss and Son, Inc. With him on the briefs was
Lisa Freiman Fishberg. Barry Coburn entered an appearance.
Daniel M. Press argued the cause and filed the brief for
appellee/cross-appellant Philip Wagenheim.
2
Richard A. Stephens argued the cause and filed the brief for
appellee David S. Kurke.
Before: GINSBURG, Chief Judge, and GARLAND and
BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Oscar Gruss & Son, Inc., a
securities firm, and Philip Wagenheim, an executive at the firm,
appeal the district court’s confirmation of an arbitration award.
The arbitrators required the appellants to pay compensatory
damages to David S. Kurke, a former Oscar Gruss customer, for
subjecting his account to unauthorized trading and churning.
The appellants maintain that the arbitrators awarded Kurke
damages in manifest disregard of the law. We disagree.
I
David Kurke opened a securities account with Oscar Gruss
in 1997. Upon opening the account, Kurke signed a margin
agreement providing that “statements of my account shall be
conclusive if not objected to in writing” within a specified
period after transmittal. J.A. 396. Kurke invested a total of
$520,000 in the account, and he received monthly statements.
Kurke’s account was profitable for the first two and a half years
of its existence. Indeed, the statement for the month ending
December 31, 1999, revealed a balance of approximately
$1,007,000. By the time Kurke closed the account on April 30,
2000, however, the balance had dwindled to $39,000.
In January 2003, Kurke filed a National Association of
Securities Dealers, Inc. (NASD) arbitration claim against the
Oscar Gruss firm and Philip Wagenheim, alleging the following
causes of actions: “unauthorized trading, churning, breach of
3
fiduciary duty, fraud, breach of contract, NASD Conduct Rule
violations, negligence, negligent supervision, respondeat
superior, and Securities Exchange Act violations.” In re
Arbitration Between David S. Kurke and Oscar Gruss & Sons,
Inc., No. 03-00749, 2004 WL 1207231, at *1 (NASD May 21,
2004) (italicization omitted). Kurke sought $1,600,000 in
compensatory damages and $2,000,000 in punitive damages.
Oscar Gruss denied Kurke’s allegations and asserted, inter alia,
the affirmative defenses of ratification and failure to mitigate
damages. Wagenheim also denied the allegations, and further
contended that he could not be held liable for the conduct of
Kurke’s broker on a respondeat superior theory because he
neither supervised the broker nor owned the company.
The arbitration panel heard testimony in April and May of
2004. Kurke testified that he and his wife were co-owners of a
small executive search firm. Although he had fifteen years of
investing experience, Kurke testified that he did not fully
comprehend the account statements that came from Oscar Gruss.
Some of the options trading information on Kurke’s statements,
he stated, “was way beyond what [he] could understand.”
Arbitration Hr’g Tr. at 702 (April 28, 2004). Kurke could,
however, decipher the monthly statements well enough to notice
that they revealed a high volume of unauthorized transactions
during the fall of 1999; Kurke’s broker had never sought, and
Kurke had never granted, permission for discretionary trading.
Kurke began calling the broker, Christopher Fong, to
complain about the unauthorized trades. Kurke testified that,
during their conversation, Fong said “he absolutely could not
rescind trades.” Id. at 692. Kurke also testified that Fong told
him:
[H]e couldn’t undo buys because they were already
there, and “there’s nothing [he could] do with them
4
except sell them at the right time.” And he assured me
they’d make money. . . . [H]e couldn’t undo sales
because they were no longer in the possession of the
company. He couldn’t put them back in my account.
Id. According to Kurke, Fong “kept promising me he’d fix it, to
trust him, that he could . . . turn this around.” Id. at 766.
Kurke further testified that he “tried calling [Fong’s]
manager,” but that “nobody seemed to want to deal with it at
all.” Id. In April 2000, Kurke finally spoke with Wagenheim,
who represented that he was Fong’s superior and an owner of
Oscar Gruss. See id. at 771-72. Like Fong, Wagenheim told
Kurke “that none of the transactions could be undone.” Id. at
769. Wagenheim also “kept reiterating, ‘You really should not
. . . liquidate this stuff right now because it’s going to come
back,’” and “‘I can see this account . . . tripling in no time.’” Id.
at 782.
Geraldine Genco, an expert on securities industry standards,
also appeared before the arbitration panel. She testified that,
during October and November of 1999, Kurke’s account had a
turnover rate of over 65 -- more than 10 times the industry
standard for unlawful churning of an account. See id. at 1156-
57 (April 30, 2004); see also Genco Aff. ¶ 3 (June 30, 2004).1
Genco stated that this was “one of the highest excessive trading
cases” she had ever seen. Genco Aff. ¶ 3. She further opined
that there was unauthorized trading and that “the lack of
1
“Churning occurs when an account has been excessively traded
to generate commissions in contravention to the investor’s expressed
investment goals.” Caiola v. Citibank, N.A., New York, 295 F.3d 312,
324 (2d Cir. 2002) (internal quotation marks omitted).
5
supervision over Mr. Kurke’s account was ‘intentional’ and
‘reckless.’” Id. ¶ 4.2
On May 21, 2004, the arbitration panel awarded Kurke
compensatory damages from both Oscar Gruss and Wagenheim.
See Arbitration, 2004 WL 1207231, at *2. The panel ordered
Oscar Gruss to pay Kurke $648,000, plus five percent interest
from May 1, 2000, until the amount was paid in full. The
arbitrators ordered Wagenheim to pay Kurke $58,000 at the
same rate of interest. Kurke’s claims for punitive damages and
attorneys’ fees, however, were denied.
On May 28, 2004, Kurke petitioned the district court for
enforcement of the arbitration award; the defendants
subsequently filed cross-motions to vacate it. On January 19,
2005, the district court granted Kurke’s petition and entered
judgment against the defendants for the full amount of the
award. See Kurke v. Oscar Gruss & Son, Inc., No. 04-0870,
Mem. Op. at 11 (D.D.C. Jan. 19, 2005). This appeal followed.
II
As we have repeatedly recognized, “‘judicial review of
arbitral awards is extremely limited,’” and we “‘do not sit to
hear claims of factual or legal error by an arbitrator as [we
would] in reviewing decisions of lower courts.’” Teamsters
Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600,
604 (D.C. Cir. 2001) (quoting Kanuth v. Prescott, Ball &
Turben, Inc., 949 F.2d 1175, 1178 (D.C. Cir. 1991)). The
Federal Arbitration Act (FAA), 9 U.S.C. § 10(a), lists only four
2
The arbitration panel also heard from four other witnesses who
testified that Fong had defrauded them.
6
grounds upon which an arbitration award may be vacated.3
Neither Oscar Gruss nor Wagenheim contends that any of those
grounds is applicable here.
In addition to the statutory grounds, “arbitration awards can
be vacated . . . if they are in manifest disregard of the law.”
LaPrade v. Kidder, Peabody & Co., Inc., 246 F.3d 702, 706
(D.C. Cir. 2001) (internal quotation marks omitted). This is the
ground upon which the appellants urge us to vacate Kurke’s
award. See Appellant Oscar Gruss Br. 3; Appellant Wagenheim
Br. 5.4 “Manifest disregard,” however, is an extremely narrow
standard of review. It “means much more than failure to apply
3
The four grounds are as follows:
(1) where the award was procured by corruption, fraud, or
undue means; (2) where there was evident partiality or
corruption in the arbitrators, or either of them; (3) where the
arbitrators were guilty of misconduct in refusing to postpone
the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or
of any other misbehavior by which the rights of any party
have been prejudiced; or (4) where the arbitrators exceeded
their powers, or so imperfectly executed them that a mutual,
final, and definite award upon the subject matter submitted
was not made.
9 U.S.C. § 10(a).
4
Arbitration awards can also be vacated “if they are contrary to
some explicit public policy that is well defined and dominant and
ascertained by reference to the laws or legal precedents.” LaPrade,
246 F.3d at 706 (internal quotation marks omitted). Neither appellant
urges application of that standard here.
7
the correct law.” Kanuth, 949 F.2d at 1182.5 Rather, to vacate
an award under that standard, we “‘must find that (1) the
arbitrators knew of a governing legal principle yet refused to
apply it or ignored it altogether[,] and (2) the law ignored by the
arbitrators was well defined, explicit, and clearly applicable to
the case.’” LaPrade, 246 F.3d at 706 (quoting DiRussa v. Dean
Witter Reynolds, Inc., 121 F.3d 818, 821 (2d Cir. 1997)).
Moreover, when the arbitrators give no explanation for their
decision, as commonly occurs in arbitration and as occurred in
this case, we must confirm the award “if any justification can be
gleaned from the record.” GMS Group, LLC v. Benderson, 326
F.3d 75, 78 (2d Cir. 2003) (internal quotation marks omitted).
“Even where explanation for an award is deficient or
non-existent, we will confirm it if a justifiable ground for the
decision can be inferred from the facts of the case.” Duferco
Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383,
390 (2d Cir. 2003). In light of this “severely limited” standard
of review, it should come as no surprise that “obtaining judicial
relief for arbitrators’ manifest disregard of the law is rare.” Id.
at 389 (internal quotation marks omitted).
We review a district court’s confirmation of an arbitration
award for clear error with respect to questions of fact and de
5
The next sentence in Kanuth reads: “‘Manifest disregard’ may
be found, for example, if the panel understood and correctly stated the
law but then proceeded to ignore it.” 949 F.2d at 1182 (emphasis
added). During the course of this appeal, the parties have disputed
whether the official version of the Kanuth opinion contains the above-
italicized phrase, “for example, if,” or instead contains the words
“only if.” The parties’ confusion is understandable because the
Westlaw and Lexis databases have different versions of the opinion.
The correct version is that which appears in the first sentence of this
footnote.
8
novo with respect to questions of law. See LaPrade, 246 F.3d
at 706; see also First Options of Chi., Inc. v. Kaplan, 514 U.S.
938, 947-48 (1995). As the parties seeking to vacate the award,
Oscar Gruss and Wagenheim “bear[] the burden of
demonstrating that the arbitration panel acted in manifest
disregard of the law.” LaPrade, 246 F.3d at 706. We consider
Oscar Gruss’ arguments in Part III and Wagenheim’s in Part IV.
III
For purposes of this appeal, Oscar Gruss does not dispute
that Kurke’s account “was churned,” that “unauthorized trades
occurred” in the account, or that Oscar Gruss and its employees
“acted wrongfully.” Appellant Oscar Gruss Br. 4. It
nonetheless contends that Kurke is barred from recovering the
arbitrators’ award “as a matter of law.” Id.
Oscar Gruss proffers two arguments in support of its claim
that the arbitration panel’s award to Kurke was made in manifest
disregard of the law. First, the company contends that, under the
terms of his margin agreement, Kurke’s failure to object to the
unauthorized trades in writing within the stipulated time frame
effectively ratified those trades. Second, Oscar Gruss asserts
that Kurke’s failure to mitigate his damages after he became
aware of the unauthorized trading relieves the company of some
or all of its liability for Kurke’s losses.
A
Kurke’s margin agreement with Oscar Gruss provided as
follows: “Reports of the execution of orders and statements of
my account shall be conclusive if not objected to in writing
addressed to the branch manager of the office servicing such
account(s) within five days and ten days, respectively, after
transmittal to me by mail or otherwise.” J.A. 396. Kurke
9
concedes that he realized there was unauthorized trading in his
account by the fall of 1999 and that he did not object in writing.
Oscar Gruss contends that, by this failure to object, Kurke
ratified the transactions in his account.
There is, to be sure, substantial authority supporting Oscar
Gruss’ ratification theory. As the Second Circuit explained in
Modern Settings, Inc. v. Prudential-Bache Securities, Inc., a
case repeatedly cited by Oscar Gruss, “[t]he purpose” of a
written notification clause like that at issue here “is to require
the customer to memorialize his or her complaint soon after
receipt of the account statement rather than waiting to see if the
trade is profitable.” 936 F.2d 640, 645-46 (2d Cir. 1991). “The
writing requirement” also “insures that unauthorized trading
disputes are not relegated to ‘swearing contests’ between broker
and customer.” Id. at 646. “For these reasons, broker-customer
agreements requiring written notice of objection within a limited
amount of time after the customer receives confirmation of the
transaction generally have been enforced by courts.” Id.
(emphasis added).
But as the Second Circuit’s use of the word “generally”
suggests, there are exceptions to the rule that ratification
agreements will be enforced. Modern Settings, itself, listed two.
First, “[t]here will be instances where a disparity in
sophistication between a brokerage firm and its customer will
warrant a flexible application of such written notice clauses.”
Id.; see Karlen v. Ray E. Friedman & Co. Commodities, 688
F.2d 1193, 1200 (8th Cir. 1982) (“When a customer lacks the
skill or experience to interpret confirmation slips, monthly
statements or other such documents, courts have generally
refused to find that they relieve a broker of liability for its
misconduct.”). Second, “a broker may be estopped from raising
a defense based on the written notice clause if the broker’s own
assurances or deceptive acts forestall the customer’s filing of the
10
required written complaint.” Modern Settings, 936 F.2d at 646;
see Widell v. Wolf, 43 F.3d 1150, 1151 (7th Cir. 1994) (refusing
to overturn an arbitration award, despite the customer’s failure
to object to unauthorized trades promptly after receiving account
statements as required by his account agreement, because his
broker told him to disregard the statements); RESTATEMENT
(SECOND) OF AGENCY § 416 (1958) (stating that ratification is
not a defense when the principal “is caused to ratify by the
misrepresentation . . . of the agent”).
This circuit has suggested a third exception, albeit in a case
in which it is unclear whether there was a written notice
agreement. In Merrill Lynch Pierce Fenner & Smith, Inc. v.
Cheng, we held that “[r]atification occurs only when the
customer, with full knowledge of the facts, manifests his
intention to adopt the unauthorized transaction.” 901 F.2d 1124,
1129 (D.C. Cir. 1990). Because the investors in Merrill Lynch
“were not advised of their right to reject the unauthorized
trades,” we concluded that “as a matter of law, there could not
have been ratification.” Id.
Evidence supporting all three of these exceptions was
before the arbitrators in this case. Although Kurke was not an
inexperienced investor, the arbitrators could have credited his
testimony that he did not comprehend the highly complicated
options trades contained in his monthly account statements. The
district court found that “many of Mr. Fong’s transactions were
‘way beyond what [Kurke] could understand,’” Kurke, Mem.
Op. at 2-3 (quoting Arbitration Hr’g Tr. at 702 (April 28,
2004)), and we cannot say that this finding was “clear error,”
LaPrade, 246 F.3d at 706.
The arbitrators could also have found “assurances or
deceptive acts” that “forestall[ed] the customer’s filing of the
required written complaint.” Modern Settings, 936 F.2d at 646.
11
There is certainly evidence of such lulling, including Fong’s
“promis[es]” that “he’d fix it,” that Kurke should “trust him,”
and “that he could . . . turn this around.” Arbitration Hr’g Tr. at
766 (April 28, 2004). In addition, there is evidence, as there was
in Merrill Lynch, that Kurke was “not advised of [his] right to
reject the unauthorized trades.” 901 F.2d at 1129. Indeed,
Kurke testified that Fong told him that “he absolutely could not
rescind the trades.” Arbitration Hr’g Tr. at 692 (April 28, 2004).
He “couldn’t undo buys,” Fong told Kurke, “because they were
already there,” and “he couldn’t undo sales because they were
no longer in the possession of the company.” Id. Under these
circumstances, we can readily “discern [a] colorable justification
for the arbitrator[s’] judgment,” GMS Group, 326 F.3d at 78,
and cannot say that their award was made in manifest disregard
of the law regarding ratification.
B
Oscar Gruss’ second argument is that Kurke failed to
mitigate or minimize his damages. According to Oscar Gruss,
once Kurke learned of Fong’s unauthorized trading and churning
in the fall of 1999, he should have immediately “minimize[d] his
alleged damages by liquidating the allegedly unauthorized or
improper purchase transactions.” Appellant Oscar Gruss Br. 28.
Kurke’s failure to liquidate his account until its value fell to
$39,000 should, the company argues, relieve it of some, if not
all, financial responsibility.
12
Although “New York’s6 courts adhere to the universally
accepted principle that a harmed plaintiff must mitigate
damages,” Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494
(2d Cir. 1985), “the test applied to plaintiff’s conduct is whether
the action taken in response to the defendant’s breach was
reasonable,” Novelty Textile Mills, Inc. v. C.T. Eastern, Inc., 743
F. Supp. 212, 219 (S.D.N.Y. 1990); see Air Et Chaleur, 757
F.2d at 494; Appellant Oscar Gruss Br. 26-27 (citing New York
cases stating that a plaintiff’s efforts at mitigation are governed
by a reasonableness standard). “If the course of conduct chosen
by the plaintiff was reasonable, the plaintiff can recover despite
the existence of another reasonable course of action that would
have further lessened plaintiff’s damages.” Novelty Textile, 743
F. Supp. at 219 (citing Federal Ins. Co. v. Sabine Towing &
Transp. Co., 783 F.2d 347, 350 (2d Cir. 1986)). Moreover, “the
burden of showing that a plaintiff has unreasonably failed to
minimize damages rests with the wrongdoer,” in this case with
defendant Oscar Gruss. Id. at 218; see Air Et Chaleur, 757 F.2d
at 494; see also id. at 494-95 (upholding the district court’s
determination that the defendant failed to satisfy its burden
because it failed to show what costs the plaintiffs would have
incurred had they attempted to sell the controverted stock).
6
Kurke’s margin agreement stipulated that “[t]his contract shall
be governed by the laws of the State of New York,” J.A. 396, and the
Oscar Gruss branch that handled Kurke’s account was located in New
York. Although the parties’ briefs moot the choice of law issue, and
Oscar Gruss argues that New York law should apply, no party
suggests that the outcome of the case depends upon which
jurisdiction’s law applies.
13
The arbitrators did not manifestly disregard the law by
rejecting Oscar Gruss’ mitigation argument.7 When Kurke
became aware of Fong’s unauthorized trading, he repeatedly
called Fong to complain. Kurke testified that Fong told him he
could not rescind the trades and lulled him into believing that
the problem would be remedied. Fong told Kurke that there was
“‘nothing [he could] do with [the shares in the account] except
sell them at the right time,’” and he “assured [Kurke] they’d
make money.” Arbitration Hr’g Tr. at 692 (April 28, 2004).
Fong “kept promising [Kurke] he’d fix it, to trust him, that he
could . . . turn this around.” Id. at 766. Under these
circumstances, the arbitrators may well have concluded that it
was reasonable for Kurke to believe that the churning and
unauthorized trading would cease, and that the best way to
mitigate his losses was to leave the account in Fong’s hands so
that he could “turn this around.” Id.
C
In reviewing the decision of an arbitration panel, we do not
decide whether we would have assessed either the facts or the
law in the same manner as the panel. See United Paperworkers
Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987); Kanuth, 949
F.2d at 1178; GMS Group, 326 F.3d at 77-78. Our only task is
to determine whether the panel manifestly disregarded the law.
7
Indeed, it is not even clear that they did reject the argument.
Kurke sought $1,600,000 in compensatory damages, but the panel
awarded him only $648,000. Although the panel did not explain how
it arrived at that figure, it is possible that the amount the panel
awarded -- which was substantially less than the reduction in value of
Kurke’s account from December 31, 1999 to April 30, 2000 --
reflected the panel’s judgment that Kurke had at least partially failed
to mitigate.
14
For the foregoing reasons, we conclude that the panel did not do
so in rejecting Oscar Gruss’ ratification and mitigation defenses.
IV
Philip Wagenheim appeals the arbitration award against him
on three grounds. First, he adopts the Oscar Gruss arguments
that we have rejected above. Second, he argues that the
arbitrators applied the wrong interest rate to the arbitration
award, an argument that he did not make in the district court and
that we therefore decline to hear.8 Finally, he maintains that the
arbitrators manifestly disregarded the law by holding him
vicariously liable for Fong’s unauthorized trading on Kurke’s
account. We address that contention here.
The premise of Wagenheim’s argument is that he cannot be
held liable for Fong’s misdeeds under a respondeat superior
theory because “there was no evidence sufficient to support a
finding that [he] was an owner of the investment firm or
supervisor of the broker involved.” Appellant Wagenheim Br.
1. That factual assertion is simply incorrect. It is certainly true
that Wagenheim testified that he was never a branch manager or
compliance officer, and that he had no ability to hire or fire
Oscar Gruss employees. See Arbitration Hr’g Tr. at 259-61,
429-30 (April 27, 2004). But Wagenheim’s was not the only
testimony before the arbitrators.
8
See United States v. Gartmon, 146 F.3d 1015, 1029 (D.C. Cir.
1998) (“We may dispense with [appellant’s] contention without
further discussion because [appellant] waived it by failing to raise it
below.”); Grant v. United States Air Force, 197 F.3d 539, 542 (D.C.
Cir. 1999) (“‘Absent “exceptional circumstances,” the court of appeals
is not a forum in which a litigant can present legal theories that it
neglected to raise in a timely manner in proceedings below.’” (quoting
Tomasello v. Rubin, 167 F.3d 612, 618 n.6 (D.C. Cir. 1999))).
15
Kurke testified that he spoke by telephone with
Wagenheim, who represented that he was Fong’s superior and
an owner of Oscar Gruss. See id. at 771 (April 28, 2004).
Kurke recounted Wagenheim as saying that he “owned the
company,” id., that “he made the hiring decisions,” id. at 772,
and that he had personally hired Fong despite knowing of a
“blemish” on his record, id. Wagenheim also told Kurke that,
if Kurke were to sue Fong, Wagenheim would “end up paying
for it.” Id. at 774. “It’s going to come out of my pocket,”
Wagenheim said. Id.
Wagenheim argues that Kurke’s testimony inaccurately
characterized the telephone conversation between them, and that
tape recordings of this and other calls -- which were played for
the arbitrators -- “do not support” Kurke’s testimony. Appellant
Wagenheim Br. 4. According to Wagenheim, “[w]hat the tape
recordings show is that Mr. Wagenheim was referring to his
branching off as of May 1, 2000, to set up his own company,”
and not to his status at Oscar Gruss. Id.
Although the tape of an April 19, 2000, call does contain
some discussion of a future venture, it also records Wagenheim
telling Kurke: “I founded the Private Client Group of Oscar
Gruss, where your account is being managed.” Arbitration Hr’g
Tr at 274 (April 27, 2004). The tape of a call between the two
men on the previous day records Wagenheim as saying: “[Y]ou
know, I run the place.” Id. at 269. Referring to Oscar Gruss
employees, including the firm’s compliance officer, Wagenheim
said in that call: “These are all people that I employ. These are
people that I pay their paycheck -- or that Oscar Gruss pays their
paychecks -- but through funds that we give them.” Id. at 270.
And in a telephone call recorded the week before, Amy Cernitz,
the manager of the Oscar Gruss branch at which Kurke had his
account, described Wagenheim to Kurke as follows: “[H]e’s
one of the Senior Managing Partners here. . . . He’s Chris
16
[Fong]’s boss. He’s fully aware of the situation with you and
Chris.” Id. at 265.
The principal case that Wagenheim cites to dispute the
arbitration panel’s finding of vicarious liability is In re Irvine
Sensors Corp., No. 02-159, 2003 U.S. Dist. LEXIS 18397 (C.D.
Cal. Sept. 22, 2003). There, the court held that, in order to
establish vicarious liability, a plaintiff must demonstrate: “(1)
a primary violation of securities law, and (2) the individual
exercised actual power or control over the primary violator.” Id.
at *8. Wagenheim does not dispute that the first criterion is
satisfied here. And Kurke’s testimony was certainly sufficient
to satisfy the second. In these circumstances, we cannot
conclude that the arbitrators’ finding of vicarious liability was
made in manifest disregard of the law.
V
The “manifest disregard of the law” standard for
overturning an arbitration award is manifestly difficult to satisfy.
At best, the appellants have suggested that the arbitrators relied
upon debatable points of law or disputable issues of fact.
Neither is sufficient to establish manifest disregard. See Kanuth,
949 F.2d at 1178. Accordingly, the judgment of the district
court is
Affirmed.