Scott v. Prudential Securities

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-9106
_______________

D. C. Docket No. 1:95-CV-3284-JEC

WILLIAM SUMNER SCOTT,

Plaintiff-Appellant,

versus

PRUDENTIAL SECURITIES, INC.,

Defendant-Appellee.

______________________________

Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(May 18, 1998)

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and
COHILL*, Senior District Judge.

*
Honorable Maurice B. Cohill, Senior U.S. District Judge for
the Western District of Pennsylvania, sitting by designation.
BIRCH, Circuit Judge:

In this appeal, we decide whether the Member Arbitration Rules

of the National Futures Trading Association (“NFA”) permit NFA

arbitrators to decide whether a dispute is arbitrable. We must also

address whether an individual consents to arbitrate disputes with

other members of the NFA by becoming an associate member of the

NFA. In addition, the petitioner-appellant asks us to vacate the

arbitration award entered below pursuant to section 10 of the

Federal Arbitration Act, 9 U.S.C. § 10, and on the non-statutory

ground that the award was arbitrary and capricious.1 The district

court held that the arbitrators did have the authority to determine

issues of arbitrability but, upon conducting an independent review,

the court made an alternative holding that the dispute was indeed

subject to NFA arbitration. The district court also rejected Scott's

attacks on the arbitrators' award and refused to vacate the award.

1
Although the petitioner-appellant raises a number of
additional challenges both to the arbitration award and to the
district court's rulings below, we conclude they are without merit
and decline to discuss them further.

2
Finally, the district court granted the respondent-appellee's motion

to confirm the award. Although we hold that the district court erred

when it found that the arbitrators had the authority to decide issues

of arbitrability, we agree with the district court's alternative holding

and its decision to confirm the arbitration award. We AFFIRM.

BACKGROUND

William S. Scott (“Scott”), the petitioner-appellant, formed a

Delaware corporation, Creative Strategies, Inc. (“CSI”), that acted as

the general partner of a Pennsylvania limited partnership, the

Creative Strategy Fund I, (the “Fund”). Scott was the sole

shareholder of CSI and the sole limited partner of the Fund. The

Fund subsequently opened a number of accounts with the

respondent-appellee, Prudential Securities, Inc. (“PSI”), for the

purpose of engaging in futures trading. Scott executed all the

documents required to open these accounts but structured the

transactions with the intent of avoiding personal liability for any

3
deficits in the accounts.2 He specifically refused PSI's request that

he execute a personal guarantee on the accounts.

These accounts lost a significant amount of money due to what

Scott alleges were PSI's mistakes in trading the accounts on a

margin. Scott further alleges that instead of correcting the mistakes,

PSI forged documents to support the transactions and demanded

payment for the deficit in the accounts. PSI then issued a demand

for arbitration before the NFA against Scott, the Fund, and CSI. In

October, 1992, the Fund filed a complaint with the Commodity

Futures Trading Commission (“CFTC”), alleging that PSI had

committed a number of transgressions in connection with the

accounts and claiming damages. PSI responded by filing a

counterclaim in the CFTC proceeding that demanded payment of the

debit balances from Scott, the Fund, and CSI. The CFTC, however,

refused to consider PSI's claims against Scott individually, and the

2
Since the details of these arrangements are both lengthy
and complex, we confine our discussion to the details necessary to
understand the issues on appeal.

4
NFA granted a stay of PSI's arbitration proceedings pending the

outcome of the CFTC hearing.

In 1994, an administrative law judge (the “ALJ”) for the CFTC

decided that the allegations regarding PSI's conduct were without

merit and entered an award of $101,087.53 plus interest in PSI's

favor. In 1995, the CFTC heard an appeal of the ALJ's decision and

affirmed it in all material respects.3 At PSI's request, the NFA then

lifted the stay in the arbitration proceedings that PSI had initiated

against Scott in his personal capacity and notified both parties that

arbitration would commence on October 31, 1995.

On October 18, 1995, Scott petitioned the NFA to delay the

arbitration pending the outcome of a motion the Fund had filed in the

United States District Court for the Southern District of Florida

seeking a temporary restraining order (“TRO”) to enjoin the NFA

proceedings. Scott also petitioned the NFA staff for the option of

3
The CFTC's confirmation of the ALJ's decision spawned a
considerable amount of additional litigation. Suffice it to say
that another panel of our court affirmed the award without opinion.
See Prudential Securities, Inc. v. Creative Strategy, Inc., 107
F.3d 26 (11th Cir. 1997).

5
participating in the arbitration by telephone. On October 25, 1995,

the NFA denied Scott's request for a stay, and, on October 27, 1995,

the arbitrators' denied Scott's request to participate by telephone.

On October 30, 1995, the district court in Florida denied the Fund's

request for a TRO to enjoin the NFA arbitration. The arbitrators

subsequently commenced their hearing on October 31, 1995, in

Scott's absence. That morning, the arbitrators also refused an

attempted phone call from Scott, who sought either a delay in the

hearing or the option of participating by telephone. The arbitrators

did, however, accept and consider a fifty-six page affidavit detailing

Scott's position on the dispute.

On November 20, 1995, a three-person NFA arbitration panel

found that the Fund and CSI were Scott's “alter-egos” and pierced

the corporate veil to hold Scott liable for the debts of those entities.

The arbitrators awarded PSI $106,087.54 plus interest against Scott

personally. Scott brought a motion to vacate the arbitration award

in the United States District Court for the Northern District of

6
Georgia; PSI brought a motion to confirm the arbitration award.

After a resolving a number of procedural disputes,4 the district court

granted PSI's motion to confirm the award and denied Scott's motion

to vacate.

DISCUSSION

On appeal, Scott argues that the district court erroneously

decided that the NFA's Member Arbitration Rules gave the NFA

arbitrators the authority to resolve disputes about arbitrability (i.e.,

whether a particular dispute is subject to arbitration). Scott also

appeals the district court's alternative holding that, even if the NFA

arbitrators did not have the power to decide issues of arbitrability,

the alter-ego liability dispute between PSI and Scott was

nonetheless subject to arbitration. Finally, Scott attacks the

4
Scott raises a number of these procedural disputes on
appeal and asks us to reverse the district court's rulings. Upon
review, we find his contentions to be without merit.

7
arbitrators' award on a number of different grounds and asks us to

vacate the award pursuant to section 10 of the FAA, because the

award was arbitrary or capricious, and because the NFA's filing fees

violated his rights under the Florida Constitution. PSI defends the

district court's opinion and the NFA arbitrators' award on all grounds

and asks us to affirm the district court's confirmation of the award.

I. Arbitrability of the Dispute

Scott argues that the NFA arbitrators did not have the authority

to enter a judgment in his dispute with PSI. It is well established that

arbitration is a creature of contract and no party can be compelled

to submit a dispute to arbitration without having given prior

contractual consent to do so. See AT&T Tech., Inc. v.

Communications Workers, 475 U.S. 643, 649, 106 S. Ct. 1415,

1418, 89 L. Ed. 2d 648 (1986). Although the United States Supreme

Court has made it clear that, the courts, not arbitrators, ordinarily will

decide whether or not a particular dispute is arbitrable, the parties

may choose to have arbitrators resolve even the question of

8
arbitrability. Id. at 649, 106 S. Ct. at 1418 (unless the parties

“clearly and unmistakably” provide otherwise “the question of

arbitrability–whether . . . [an arbitration] agreement creates a duty for

the parties to arbitrate the particular grievance–is undeniably an

issue for judicial determination.”). The arbitrators in this case, by

entering an award against Scott on the merits, implicitly decided that

they had the power to decide questions of arbitrability and decided

that the dispute was arbitrable. As we must defer to the arbitrators'

conclusion that the dispute was arbitrable only if we agree that the

parties clearly and unmistakably consented to have them decide

issues of arbitrability, see First Options of Chicago, Inc. v. Kaplan,

514 U.S. 938, 943, 115 S. Ct. 1920, 1923, 131 L. Ed. 2d 985 (1995),

we will address that question first.

A. Competence de la Competence

In this case, section 2 of NFA Member Arbitration Rules, which

requires all members and associates to arbitrate disputes, provides

9
the only possible justification for the arbitrator's implicit conclusion

that they had the authority to resolve questions of arbitrability.5

Scott, however, argues that the language in the NFA rules is not

broad enough to permit the arbitrators to decide the issue of

arbitrability.

The Supreme Court has explained that courts should not

assume that parties have agreed to arbitrate arbitrability unless

there is clear and unmistakable evidence to that effect. See First

Options, 514 U.S. at 944, 115 S. Ct. at 1924 (quoting AT&T Tech.,

475 U.S. at 649, 106 S. Ct. at 1418-19)). To determine whether the

parties agreed to submit the question of arbitrability to the

arbitrators, we must refer to “ordinary state-law principles that

govern the formation of contracts.” First Options, 514 U.S. at 944,

115 S. Ct. at 1924.

5
Scott's arguments that he was not bound by the NFA's
arbitration rules go to the issue of whether the arbitrators erred
by finding that he had agreed to arbitrate the merits of the
dispute rather than the issue of who should have decided that
question. Accordingly, we leave Scott's argument on that point for
subsequent discussion in part I(B).

10
 Regrettably, neither the parties nor the district court have dwelt

on the question of which state's principles of contract law govern this

question. Scott apparently executed a Form 8-R, the document that

registered him with the NFA, in Florida and sent it to the NFA in

Illinois. Given that none of the relevant documents appears to

contain a choice of law provision, it would appear that either Florida

or Illinois law applies.6 We, however, need not resolve this choice

of law problem because the relevant law in both states is essentially

in harmony. Both Florida and Illinois require courts to interpret a

contract so as to give effect to the intent of the parties. See e.g.,

6
It is axiomatic that a federal district court, sitting in
diversity, applies the choice of law rules of the state in which it
sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61
S. Ct. 1020, 85 L. Ed. 1477 (1941). Since the parties brought this
case in the Northern District of Georgia, we observe that, in cases
of contract construction, Georgia applies the law of the state
where the parties made their agreement or where it is to be
performed. See Allstate Ins. Co. v. Duncan, 218 Ga. App. 552, 553,
462 S.E.2d 638, 640 (1995). On the record in this case, therefore,
either Florida or Illinois law applies. We note that, although the
question of which state's law should govern this question is an
important one, the courts have not focused upon this issue. See
e.g., Paladino v. Avnet Computer Tech. Inc., 134 F.3d 1054, 1061
n.1 (11th Cir. 1998) (Tjoflat, J. and Cox, J. concurring)(noting
that the parties had not specified which state's law should apply
in a similar situation); Merrill, Lynch, Pierce, Fenner & Smith,
Inc. v. Cohen, 62 F.3d 381 (11th Cir. 1995) (deciding that the
parties had not clearly and unmistakably agreed to arbitrate
arbitrability without a single reference to state law).

11
Mayflower Corp. v. Davis, 655 So. 2d 1134, 1137 (Fl. Dist. Ct. App.

1994) (“The intention of the parties governs the construction of

contracts.”); American States Ins. Co. v. Koloms, 687 N.E.2d 72, 75

(Ill. 1997) (same). More specifically, courts in both states have

concluded that even broad, elastic language in an arbitration clause

cannot, without more, support the clear and unmistakable conclusion

that the parties intended to submit issues of arbitrability to

arbitrators. The Supreme Court of Illinois, for example, recently held

that a contract providing that “any controversy between us arising

out of . . . this agreement shall be submitted to arbitration” was “at

best, silent on the question of who should decide questions of

arbitrability.” Roubik v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

No. 82752, (Ill. Feb. 20, 1998). A Florida court interpreting

substantially similar contract language also held that the parties had

not evidenced an intent, as a matter of Florida contract law, to permit

the arbitrators to decide issues of arbitrability:

12
 The agreement in this case does not contain any
language specifically authorizing the arbitration panel to
decide arbitrability issues; nor does it contain any broad
or all-inclusive language that implicitly authorizes the
arbitration panel to decide such issues.

Romano v. Goodlette Office Park, Ltd,, 700 So.2d 62, 64 (1997);

accord North Augusta Assoc. Ltd. Partnership v. 1815 Exchange,

Inc., 220 Ga. App. 790, 469 S.E.2d 759 (1996) (same under Georgia

law). But see Smith Barney Shearson, Inc. v. Sacharow, 91 N.Y.2d

39, 689 N.E.2d 884, 666 N.Y.S.2d 990 (1997) (reaching the opposite

conclusion under New York law).7

Section 2 of the NFA's arbitration rules states that: “[e]xcept as

provided in Sections 4 and 5 of these Rules . . . , disputes between

and among Members and Associates shall be arbitrated under these

Rules . . . .”8 R1-7, Ex. G at 4. The language at issue in this case,

therefore, is substantially narrower than the arbitration clauses

7
But see also Paine Webber Inc. v. Bybyk, 81 F.3d 1193, 1199
(2d Cir. 1996) (“The words 'any and all' are elastic enough to
encompass disputes over whether . . . a claim is within the scope
of arbitration.”).
8
Section 2 contains a number of additional exceptions, none
of which are relevant to this appeal. See R1-7, Ex. G at 4.

13
discussed in the Illinois and Florida decisions above. Although we

admit that the language of section 2 is susceptible to a reasonable

construction in favor of permitting the arbitrators to determine

arbitrability, we cannot conclude that section 2 evidences a “clear

and unmistakable” commitment to that position under either Florida

or Illinois principles of contract construction. Accordingly, we hold

that the arbitrators did not have the power to rule on the question of

whether Scott had consented to arbitrate.

B. The District Court's Determination of Arbitrability

Given our decision that the parties did not consent to have the

arbitrators determine whether their dispute was arbitrable, we now

must make an independent determination of whether the parties'

dispute was eligible for arbitration. See First Options, 514 U.S. at

943, 115 S. Ct. at 1924. In an alternative holding, the district court

14
expressly found that Scott had consented to arbitrate his dispute

with PSI by virtue of his registration with the CFTC and his status as

an associate member of the NFA. As we conduct our review of this

alternative holding, we accept all findings of fact that are not clearly

erroneous but decide questions of law de novo. Id. at 947-48, 115

S. Ct. at 1926.9

Scott argues that he never agreed to arbitrate disputes in front

of the NFA. As we observed in United States Fidelity & Guar. Co.

v. West Point Constr. Co., 837 F.2d 1507, 1508 (11th Cir. 1988) (per

curiam), however, parties may bind themselves to arbitrate disputes

by signing a contract that incorporates an arbitration agreement by

reference. Moreover, in a case substantially similar to the one

before us, another Court of Appeals has held that a petitioner who

registered as an associate member of the NFA consented to

arbitrate all disputes with other members or associates pursuant to

9
We note that the Supreme Court has rejected our circuit's
previous practice of reviewing a district court's decision to
confirm an arbitration award with the more lenient abuse of
discretion standard. See First Options, 514 U.S. at 948, 115 S.
Ct. at 1926.

15
the NFA Member Arbitration Rules that had been incorporated in his

registration. See R.J. O'Brien & Assoc. v. Pipken, 64 F.3d 257, 260-

261 (7th Cir. 1995).

Following the Pipken court's reasoning, the district court found

that Scott was a CFTC-registered associated person.10 Indeed,

Scott admitted as much in the documents he filed with the district

court, and PSI confirmed his status as an associated person by filing

the uncontested affidavit of a paralegal who checked Scott's status

with the NFA registration hotline.11 In order to register with the

CFTC as an “associated person,” Scott completed and signed a

Form 8-R application on April 12, 1992. The Form 8-R expressly

notes that it constitutes an application for “registration . . . as an

10
The Commodity Exchange Act (the “CEA”), 7 U.S.C. §§ 1-25,
regulates those who participate in transactions involving
commodities futures. Persons who actively participate in that
industry, including futures commissions merchants, introducing
brokers, and associated persons must register under the CEA. See
7 U.S.C. §§ 6f(a) & 6k(1). For a more complete explanation of the
regulatory system, including Congress's delegation of the
registration function to the CFTC and NFA, see Pipkin, 64 F.3d at
259.
11
As an associated person Scott was, by definition, required
to register as an associate member of the NFA. See Pipken, 64 F.3d
at 261 (citing the NFA Member Arbitration Rules).

16
Associated Person . . . and application for NFA Associate

Membership.” R1-7, Exh. J at 2 (emphasis added). The Form 8-R

also states that execution of the application constitutes “an express

agreement by [the applicant] that, if registered as an Associate, [the

applicant] shall become and remain bound by all NFA requirements

as then and thereafter in effect.” Id. at 7 (emphasis added). Article

XVIII(u) of the NFA's Articles of Incorporation and Rule 1-1(q) of the

NFA's Compliance Rules both define the term “requirements” as

“any duty, restriction, procedure, or standard imposed by a charter,

bylaw, rule, regulation, resolution or similar provision.” Id., Ex. K at

3, 5. The NFA added one such requirement on May 1, 1992, when

it adopted its Member Arbitration Rules. Section 2 of those rules

provides for mandatory arbitration of disputes “between and among

Members and Associates.” Id., Exh. G. at 4.

Although we have already held that this language was not

broad enough to constitute a clear and unmistakable agreement to

arbitrate issues of arbitrability, our independent review of the district

17
court's decision leads us to conclude that the district court correctly

held that Scott had agreed, in his personal capacity, to arbitrate

disputes with other members and associates of the NFA. PSI's

status as a member of the NFA--not its trading relationship with the

Fund--, therefore, gave it the right to demand arbitration of the

dispute with Scott because PSI and Scott were both subject to the

NFA's arbitration regime. See Pipken, 64 F.3d at 260-61.

Scott emphasizes that his dealings with PSI had no nexus to

his Form 8-R registration or his association with the NFA, but no

such nexus is necessary to support our finding that Scott had agreed

to arbitrate his dispute with PSI.12 Nothing in section 2 limits the

availability of arbitration to disputes that are somehow connected to

the parties' association with the NFA. Moreover, none of Scott's

12
In making this argument, Scott repeatedly asserts that he
structured the Fund's accounts with PSI with the specific intent to
avoid individual liability. Indeed, relying on this logic Scott
essentially denies that he has any dispute with PSI at all.
Scott's arguments about the structure of the accounts and his
personal liability, however, have nothing to do with the issue at
hand: whether Scott's personal status as an associate member of the
NFA required him to arbitrate the merits of an alleged dispute with
PSI.

18
attacks on the arbitrators' jurisdiction over his dispute with PSI go to

the specific exceptions to NFA arbitration enumerated in section 2

of the Member Arbitration Rules. Finally, we must resolve any

doubts about the scope of arbitrable issues in favor of arbitration.

See First Options, 514 U.S. at 944-45, 115 S. Ct. at 1924.13

Accordingly, we affirm the district court's alternative decision and

hold that Scott was subject to NFA arbitration pursuant to the

arbitration clause enumerated in section 2 of the NFA's Member

Arbitration Rules, as incorporated as a requirement for his

membership in the NFA.

II. Grounds for Vacating the Arbitration Award

Scott also challenges the arbitrators' award on Section 10 of

the FAA and on non-statutory grounds. Although Scott (having

received the benefit of a generous reading of his district court filings)

13
As the First Options Court explained, this is precisely the
reverse of the presumption that we applied to the question of
whether the parties agreed upon who should decide the question of
arbitrability. Id. at 944-45, 115 S. Ct. at 1924-25.

19
has raised a number of legally cognizable attacks on the arbitration

award, the overwhelming thrust of his argument is that the

arbitrators misapplied the law to his case. It is settled law, however,

that “[c]ourts are generally prohibited from vacating an arbitration on

the basis of errors of law or interpretation.”14 O.R. Sec. Inc. v.

Professional Planning Assoc., 857 F.2d 742, 746 (11th Cir. 1988)

(citing Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168

(1958), overruled on other grounds, Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917,

104 L. Ed. 2d 526 (1989)). With this caveat firmly in mind, we

examine Scott's arguments in support of vacating the arbitration

award.

Having determined that the arbitrators had jurisdiction to

determine the merits of the dispute between PSI and Scott, our

review of their decision is necessarily limited. We must “give

14
For this reason, we will not address Scott's contention
that the arbitrators' award ignores applicable principles of
corporate law or Florida's statute of frauds.

20
considerable leeway to the arbitrator, setting aside his or her

decision only in certain narrow circumstances.” First Options, 514

U.S. at 943, 115 S. Ct. at 1924 (citing 9 U.S.C. § 10). The FAA does

not permit courts to “roam unbridled” in their oversight of arbitration

awards. Marshall & Co. v. Duke, 941 F. Supp. 1207, 1210 (N.D. Ga.

1995) (internal quotation omitted), aff'd, 114 F.3d 188 (11th Cir.

1997) (per curiam). Scott, as the moving party, bears the burden of

setting forth sufficient grounds to vacate the arbitration award. See

O.R. Sec., Inc., 857 F.2d at 746. Finally, as explained above, we

accept the district court's findings of fact to the extent they are not

clearly erroneous and review questions of law de novo. See

Marshall & Co., 114 F.3d at 188.

A. Statutory Grounds

21
 Section 10 of the FAA provides a number of specific statutory

bases for vacating an arbitration award.15 Scott urges us to vacate

the NFA's arbitration award on the following three grounds: (1) the

arbitration award was procured by fraud, see 9 U.S.C. § 10(a)(1); (2)

the arbitrators exhibited evident partiality, id. § 10(a)(2); and (3) the

arbitrators were guilty of misconduct, id. § 10(a)(3). We find Scott's

arguments concerning fraud before the arbitrators to be without

merit,16 but address his remaining contentions in turn.

15
Section 10 of the FAA provides in pertinent part:
(a) In any of the following cases the United States court
in and for the district wherein the award was made may
make an order vacating the award upon the application of
any party to the arbitration–
(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.
(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.
16
Scott's briefs on the fraud argument all but admit that the
arbitrators had all the material information before them, a fact
that precludes vacatur under § 10(a)(1). See Bonar v. Dean Witter
Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir. 1988); accord A.G.
Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1404 (9th Cir.
1992) (per curiam) (“where the fraud or undue means is not only

22
 First, Scott asserts that the district court should have vacated

the arbitration award because the arbitrators were biased against

him. Section 10 of the FAA permits vacatur “where there was

evident partiality or corruption in the arbitrators.” 9 U.S.C. §

10(a)(2). To vacate an arbitration award for evident partiality, the

moving party must present evidence that would support a

“reasonable impression of partiality” on the arbitrator's behalf. See

Lifecare Int'l, Inc. v. CD Med., Inc., 68 F.3d 429, 433 (11th Cir.

1995), modified on other grounds, 85 F.3d 519 (11th Cir. 1996). The

assertion of partiality, however, must be “direct, definite and capable

of demonstration rather than remote, uncertain and speculative.” Id.

(quoting Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197, 1202

(11th Cir. 1982)).

discoverable, but discovered and brought to the attention of the
arbitrators a disappointed party will not be given a second bite at
the apple.”). We decline Scott's invitation to overrule Bonar and
note that, even if we were so inclined (and we are not), the law in
this circuit is emphatic that only the entire court sitting en banc
can overrule a prior panel opinion in the absence of an intervening
Supreme Court decision. See United States v. Woodard, 938 F.2d
1255, 1258 (11th Cir. 1991) (per curiam).

23
 Scott's allegations of partiality arise out of the fact that each of

the arbitrators in his case are in the business of collecting debit

balances from customers.17 Scott, therefore, alleges that because

he sought to avoid the collection of such a debit he could not receive

a fair hearing before the arbitrators in question. As evidence in

support of his contentions, Scott attacks the arbitration award

against him and argues that it is so unsupported by the law that it

could have only been the product of partiality.18

17
Scott arrives at this conclusion because each of the
arbitrators assigned to hear his case have connections to Futures
Commissions Merchants, who, he alleges, are the only entities
entitled to collect debit balances from customers under the CEA.
Scott also argues that, because persons with such ties to Future
Commissions Merchants dominate the NFA, he could not receive a fair
hearing. Such an attack on the forum, however, is far too
attenuated to satisfy the prerequisites for an attack under §
10(a)(2). See Woods v. Saturn Distrib. Corp., 78 F.3d 424, 427-30
(9th Cir. 1996) (rejecting a claim of bias based on the
arbitrators' dependence on the makers of Saturn automobiles);
Pompano-Windy City Partners v. Bear, Sterns & Co., 698 F. Supp.
504, 517 (S.D.N.Y. 1988) (similar ruling in the securities
context).
18
Scott repeats this tactic throughout his briefs by
injecting his disagreement with the arbitrators on the merits of
the dispute into his discussions of the arbitrators' jurisdiction
and his arguments for vacatur under section 10. We will address
Scott's contention that the arbitrators disregarded the law below,
but decline his invitation to conflate that dispute with the
section 10 analysis.

24
 Scott's claims amount to precisely the vague, remote, and

speculative charges that we have held cannot support an order to

vacate an arbitration award. Scott's allegations attack only the

nature of experience that the arbitrators have in the commodities

trading business and assume a bias against his position. The

courts have repeatedly explained, however, that an arbitrator's

experience in an industry, far from requiring a finding of partiality, is

one of the factors that can make arbitration a superior means of

resolving disputes. See, Commonwealth Coatings Corp. v.

Continental Cas. Co., 393 U.S. 145, 150, 89 S. Ct. 337, 340, 21 L.

Ed. 2d 301 (White, J., concurring) (“It is often because they are men

of affairs, not apart from but of the marketplace, that they are

effective in their adjudicatory function.”). Moreover, Scott has

neither pointed us to any evidence of either actual bias on the part

of the arbitrators nor identified any business connection to PSI that

the arbitrators failed to disclose to the parties before undertaking the

25
dispute.19 Accordingly, we affirm the district court's decision not to

vacate the arbitration award for evident partiality.

Second, Scott argues that the NFA arbitrators, by refusing to

postpone the arbitration hearing and refusing to allow Scott to

participate by telephone, were guilty of misconduct. The FAA

permits a district court to vacate an arbitration award in the event

that: (1) the arbitrators refused to postpone the hearing upon the

showing of sufficient cause; (2) the arbitrators refused to hear

pertinent and material evidence; or (3) the arbitrators were guilty of

any other misbehavior that resulted in prejudice to the rights of any

party. See 9 U.S.C. § 10(a)(3). As the district court correctly

observed, however, a mere difference of opinion between the

arbitrators and the moving party as to the correct resolution of a

procedural problem will not support vacatur under section 10(a)(3).

19
Scott also alleges that NFA's Chairman of the Board is the
president of a company that has a dispute with the Fund. Without
any assertion that this particular individual played any role in
his case, however, Scott's allegations remain too vague and
attenuated to support a finding of evident partiality under our
case law.

26
See generally Robbins v. Day, 954 F.2d 679, 685 (11th Cir. 1992)

(“An arbitrator enjoys wide latitude in conducting an arbitration

hearing.”), overruled on other grounds, First Options, 514 U.S. at

948, 115 S. Ct. at 1926. Moreover, we must recall the basic policy

behind arbitration, which is to permit parties to resolve their disputes

in an expeditious manner without all the formalities and procedures

that might attend full fledged litigation. See Schmidt v. Finberg, 942

F.2d 1571, 1573 (11th Cir. 1991).

We note that the express language of the statute requires the

party seeking a postponement to advance a “sufficient cause” for the

delay. 9 U.S.C. § 10(a)(3). In reviewing an arbitrator's refusal to

delay a hearing, we must decide whether there was “any reasonable

basis” for failing to postpone the hearing to receive relevant

evidence. Schmidt, 942 F.2d at 1574. In Schmidt, for example, we

held that an arbitration panel's possible reliance on any one of a

number of factors, including the desire for an expeditious resolution

of the dispute, justified its refusal to postpone a hearing to

27
accommodate a party's competing scheduling obligations and,

therefore, did not require the vacatur of an arbitration award. Id. at

1574-74; see also ARW Exploration Corp. v. Aguirre, 45 F.3d 1455,

1464 (10th Cir. 1995) (party's “flimsy” claim of unavailability due to

overseas travel was insufficient to require delay of the arbitration);

accord Hilliard v. J.C. Bradford & Co., 494 S.E.2d 38, 44 (Ga. App.

1997) (a flare-up in a party's long-term, stress related illness the

evening before a scheduled arbitration hearing did not require a

postponement).

In this case, the district court found that Scott had not advanced

any compelling excuse for his absence before the arbitrators on

October 31, 1995. Scott argued that he could not appear before the

arbitrators in Atlanta because the demands of ongoing litigation in

Miami required his presence there. The evidence is undisputed,

however, that Scott was under no court imposed obligation to stay

in Miami.20 Moreover, the district court in Miami rejected Scott's

20
Scott devotes a great deal of his brief to a letter
prepared by PSI's counsel that states Scott faced no court imposed

28
application for a TRO to enjoin the arbitration on October, 30, 1995,

the day before the arbitration was to begin. Scott's arguments

amount to nothing more than the self-imposed scheduling obstacles

that we have held do not require an arbitrator to postpone a hearing.

Accordingly, we affirm the district court's decision on this point.

Next, Scott argues that the arbitrators committed misconduct

by refusing to allow him to participate in the arbitration hearing by

telephone. Whether we consider this argument as a refusal to

consider pertinent evidence or as “other misbehavior,” under section

10(a)(3), we note that Scott must show that the arbitrators' refusal

to permit him to participate by telephone caused him some

prejudice. See Marshall & Co., 941 F. Supp. at 1212. An arbitrator

need not consider all the evidence the parties seek to introduce but

may reject evidence that is cumulative or irrelevant. See Robbins,

954 F.2d at 685. Scott argues that, had he been permitted to

participate by telephone, he would have been able to explain how

barrier to appearing before the arbitrators on October 31, 1995.
His arguments and allegations on this matter are without merit.

29
PSI had disregarded the limitations on the Fund's accounts. This

evidence, however, was irrelevant to the question of alter-ego

liability before the NFA arbitrators. Accordingly, the arbitrators did

not refuse to consider pertinent evidence by refusing Scott's

participation by telephone.

Finally, the arbitrators did not engage in misconduct that denied

Scott his right to a fair hearing. As we observed in Robbins, the FAA

permits arbitration to proceed “with only a summary hearing and with

restricted inquiry into factual issues. . . . [The arbitrator] need only

give each party the opportunity to present its arguments and

evidence.” 954 F.2d at 685 (emphasis added) (citations omitted).

Although the arbitrators refused Scott's participation by telephone,

the arbitrators did conduct a hearing, of which Scott had notice and

the opportunity to attend, and they considered Scott's fifty-six page

affidavit setting out his arguments and evidence. Accordingly, we

find no misconduct on the part of the arbitrators and affirm the

30
district court's decision not to vacate the arbitration award on the

statutory grounds.

B. Non-Statutory Grounds

In addition to the grounds for vacatur set out in the FAA, the

courts have recognized a number of non-statutory grounds that

permit a district court to vacate an arbitration award. In the Eleventh

Circuit, a party may challenge an arbitration award without reliance

on the FAA if the award is: (1) arbitrary and capricious; (2) in

contravention of public policy; or (3) entered in “manifest disregard

of the law.” See Montes v. Shearson Lehman Bros, Inc., 128 F.3d

1456 (11th Cir. 1997) (describing the first two grounds and adopting

the third). On appeal, Scott has limited his argument to his

contention that the arbitrators' award was arbitrary and capricious.21

21
We note that, before the Montes opinion, an attack based
on the arbitrators' manifest disregard of the law was not an option
in this circuit–a point not lost on either PSI or the district
court. As Montes was not delivered until November 24, 1997–more
than a month after oral argument in this case–the parties have not
briefed the issue. Although we typically do not consider arguments
not raised by the parties on appeal, we note that Scott's briefs
make clear his charge that the NFA arbitrators (as well as the ALJ

31
 An arbitration award will not be held to be arbitrary and

capricious unless “a ground for the arbitrator's decision can[not] be

inferred from the facts of the case.” Raiford v. Merrill Lynch, Pierce,

Fenner & Smith, 903 F.2d 1410, 1413 (11th Cir. 1990) (internal

quotation omitted). In Raiford, for example, we held that the

arbitrators' calculation of a damage award was not arbitrary and

capricious because, although the arbitrators had not given any

explanation of their award, “the arbitrators could have fashioned their

award based on any number of valid reasons.” Id. (emphasis

added). Similarly, in this case, it is not difficult to discern a reason for

the arbitrators' decision to hold Scott liable for the debts of the Fund.

The facts of this case and the arbitrators' award suggest that the

and CFTC arbitrators) have ignored the law. We further note,
however, that Scott's arguments do not approach the type of
disregard for the law that we found in Montes. In that case, we
found that one of the parties had expressly conceded that the law
did not support his position and urged the arbitrators to ignore
the law to find in his favor. See Montes, 128 F.3d at 1461. That
particular fact led us to distinguish the case from our precedents
refusing to vacate an award that the moving party claimed to be the
product of legal error, and led us to vacate the award for manifest
disregard of the law. Id. at 1461-62; see also id. at 1464 (Carnes
J., concurring). The record in this case and Scott's arguments
suggest nothing more than a disagreement over the application of
the law not its manifest disregard.

32
arbitrators were convinced that Scott so dominated and controlled the

Fund and CSI that he ought to be held liable for their debts on a

theory of alter-ego liability. Scott's attempts to argue that this

conclusion was arbitrary and capricious amount to nothing more than

a rehashing of his disagreements with that result. As we have

observed before, a mere error in the application of the law will not

support the reversal of an arbitration award. See Montes, 128 F.3d

at 1460. Accordingly, we hold that the district court correctly denied

Scott's pleas to vacate the arbitration award.22

CONCLUSION

On appeal, Scott asks us to reverse the district court's ruling

that the NFA's Member Arbitration Rules gave the arbitrators the

22
Scott's arguments that the NFA's excessive filing fees
violate his right of access to the courts, guaranteed by Florida's
Constitution, are without merit. Even if Scott could somehow
convince us that Florida's constitutional protections apply to an
allegedly federal agency's conduct of an arbitration hearing in
Georgia, his arguments find no support in Florida law. See
Terminix Int'l Co. v. Ponzio, 693 So. 2d 104, 109 (Fla. Dist. Ct.
App. 1997) (“The short answer to these arguments [invoking
Florida's constitutional protections] is that the plaintiffs waived
these rights by consenting to arbitrate . . . .”). Scott's equal
protection attack on the same NFA fee, in addition to having no
merit, was raised for the first time on appeal. See Irving v.
Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998) (declining to
address an argument not raised in the district court).

33
power to resolve issues of arbitrability. He also asks that we reverse

the district court's alternative, independent holding that his status as

an associate member of the NFA required him to arbitrate this

dispute with PSI. Finally, he urges us to vacate the arbitration award

for a variety of statutory and non-statutory reasons. We hold that the

district court erred when it found that the NFA Member Rules gave

the arbitrators the authority to determine whether the dispute was

subject to arbitration. We agree, however, with the district court's

independent holding that Scott's association with the NFA required

him to arbitrate the dispute with PSI. We also find no error in the

district court's decision to deny Scott's motion to vacate the

arbitration award or its decision to confirm that award in PSI's favor.

Accordingly, we AFFIRM the decision of the district court.

34