IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2009
No. 09-50073 Charles R. Fulbruge III
Clerk
UNITED FORMING, INC; CONTINENTAL CASUALTY COMPANY
Plaintiffs - Appellees
v.
FAULKNERUSA, LP
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-520
Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
This case arises out of a construction project where Appellant
FaulknerUSA, LP (“Faulkner”) was the general contractor, United Forming, Inc.
was the subcontractor and Continental Casualty Company was the surety on
their agreement. After disputes about United Forming’s work, the parties went
to arbitration before an American Arbitration Association (“AAA”) panel. The
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-50073
AAA panel ruled in favor of United Forming and Continental Casualty.1 United
Forming filed an action to confirm the award, while Faulkner moved to vacate
it. The district court ruled in United Forming’s favor. Faulkner appeals, and we
AFFIRM.
On a motion to vacate an award brought under the Federal Arbitration Act
(“FAA”), the FAA sets forth the exclusive grounds for vacatur. Hall Street
Assocs., L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 1402–03 (2008). In this case,
Faulkner attacks the arbitrators with the following arguments: (1) Arbitrator
Yungblut failed to make proper pre-arbitration disclosures of conflicts;2 (2) the
arbitrators’ comments at the arbitration demonstrated bias; and (3) the
arbitrators’ rulings as to the legal issues presented were so grossly wrong as to
be “misconduct” or “misbehavior” under the FAA. We address each contention
briefly in turn.
As part of his pre-arbitration disclosures, Arbitrator Yungblut disclosed
that his former partner, Steven Nelson, had represented Faulkner’s predecessor
company. However, Faulkner alleges that Yungblut should have disclosed
Nelson’s status as an officer of that entity, as well as Nelson’s alleged “bad
feelings” about the sale of the entity to what is now Faulkner. It also alleges
that Yungblut should have disclosed his friendship with the vice president and
general counsel of a competitor of Faulkner. These claims about Yungblut’s
nondisclosure are foreclosed by our decision in Positive Software Solutions, Inc.
v. New Century Mortgage Corp., 476 F.3d 278, 281–85 (5th Cir. 2007) (en banc)
(discussing circumstances in which nondisclosure supports a finding of “evident
1
Because the interests of United Forming and Continental Casualty align on this
appeal, we will hereinafter refer only to United Forming.
2
Faulkner also complains that the district court improperly restricted his discovery
of Yungblut’s alleged conflicts. We conclude that the district court did not abuse its discretion
in finding that Faulkner failed to show that the requested discovery would yield relevant
evidence.
2
No. 09-50073
partiality” 3 under the FAA). At most, the undisclosed information would support
only a “speculative impression of bias” and not a “significant compromising
relationship.” See id. at 285–86.4
Faulkner accuses Arbitrators Yungblut and Snyder of “actual bias” based
upon statements they made during the arbitration proceeding allegedly
suggesting defenses and causes of action to United Forming, as well as an
alleged failure to allow response to a motion and supposed mistakes of law. Cf.
Positive Software, 476 F.3d at 281 (“evident partiality” under the FAA means
“bias” that is “clearly evident in the decisionmakers”). We conclude that
Faulkner has failed to meet its “onerous burden” of demonstrating actual bias.
Weber v. Merrill Lynch Pierce Fenner & Smith, Inc., 455 F. Supp. 2d 545, 550
(N.D. Tex. 2006).
Finally, Faulkner argues that the AAA panel’s award was so contrary to
law that it constitutes “misconduct” or “misbehavior” under the FAA.5 We note
that Faulkner was careful not to use the phrase “manifest disregard of the law”
in this court (as it did in the district court), mindful that we have held that Hall
Street has overruled the use of that standard to vacate an award in a proceeding
under the FAA. Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 358 (5th
Cir. 2009). We need not reach the question of whether an intentional complete
3
Section 10 of the FAA allows vacatur “where there was evident partiality or
corruption in the arbitrators.” 9 U.S.C. § 10(a)(2).
4
We also note that the information about Nelson’s position was known to Faulkner’s
president and, therefore, should have been raised at the time of Yungblut’s selection.
5
Another ground for vacatur under the FAA is “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.” 9 U.S.C. § 10(a)(3).
3
No. 09-50073
disregard of the applicable law could constitute “misbehavior” 6 under the FAA
because we conclude that such a situation is not presented here. Even if the
AAA panel’s decision was erroneous – a question we do not reach – it was at
least debatable.
Accordingly, we AFFIRM the district court’s confirmation of the
arbitration award and denial of Faulkner’s motion to vacate.
6
“Misconduct” does not seem to fit Faulkner’s allegation. See generally Roehrs v. FSI
Holdings, Inc., 246 S.W.3d 796, 811 (Tex. App. – Dallas 2008, pet. denied) (“The [FAA] seems
to limit ‘misconduct’ to cases in which an arbitrator denies a postponement of the hearing or
refuses to hear material evidence . . . .”).
4