VOLUME 9 ISSUE 1
November 2010

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LEAD ARTICLE

The "Manifest Disregard" Standard for Vacatur: Is Hall Street One Way?

Robert N. Rapp *

In April 2010, with the decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., [2] the U.S. Supreme Court left lower courts and practitioners to ponder what had previously been widely seen as the demise of “manifest disregard of the law” as a basis for vacatur of arbitration awards in cases governed by the Federal Arbitration Act (FAA). [3] Two years earlier, in Hall Street Associates L.L.C. v. Mattel, Inc., [4] the Court had made clear that, under the FAA, the enumerated grounds in section 10 of the FAA [5] are the exclusive grounds for vacatur, and seemingly in the process sealed the fate of manifest disregard as an independent, non-statutory ground. [6] But in Hall Street, despite broad language underscoring exclusivity of section 10 grounds, the Supreme Court held only that parties to an arbitration agreement may not provide in that agreement for judicial review of awards for legal error, or on the basis of anything other than the statutory grounds for vacating or modifying an award set out in sections 10 and 11 of the FAA. [7] The arbitration agreement in Hall Street provided that a court could vacate, modify or correct any award “(1) where the arbitrators findings of facts are not supported by substantial evidence; or (2) where the arbitrator’s conclusions of law are erroneous.” No such grounds are included in the FAA, however, and the Court concluded that sections 10 and 11 provide the exclusive grounds under the FAA for vacatur and modification. Parties may not, said the Court, contract for expanded judicial review. [8]

The Court did not reject manifest disregard as an independent ground for review generally. However, the Court’s broader consideration of manifest disregard of the law as being outside the exclusive FAA grounds for judicial review of arbitration awards led many to presume that Hall Street had sounded the death knell for manifest disregard. [9] But in Stolt-Nielsen S.A. the Supreme Court made clear that the question remains open. Faced with the opportunity to address it, the Court expressly declined to decide whether manifest disregard survives after Hall Street either “as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. §10.” [10]

In the wake of Hall Street, lower courts set out on different roads to resolution of the place of manifest disregard of the law in arbitration jurisprudence. The result today, now post-Stolt-Nielsen S.A., is a tripartite split among Circuits that can only be resolved with firm Supreme Court guidance. As discussed below, the three roads taken involve: (1) embracing Hall Street for outright rejection of manifest disregard; (2) preserving manifest disregard through its “reconceptualization” as, or transformation into, an FAA section 10 ground; and (3) full recognition of manifest disregard as an independent ground for vacatur, relying on historical precedent and rejecting the notion that Hall Street changes anything. Thus the question: Is Hall Street one way? To answer the question first requires an assessment of the divergent post-Hall Street responses, and brief consideration of the genesis of the manifest disregard standard for vacatur.

A Vague Underpinning

Before Hall Street, federal Circuit Courts recognized “manifest disregard of the law” as an independent ground for judicial review of arbitration awards. [11] In most instances, courts relied upon the 1953 U.S. Supreme Court decision in Wilko v. Swan [12] for the proposition that the manifest disregard standard had been acknowledged by the Court. The scope of judicial review of arbitration awards was not an issue in Wilko. Rather, the case involved the question of whether a particular provision in the Securities Act of 1933 operated to void any agreement to arbitrate claims arising under the Act. In that context, and commenting on the impact of arbitration generally, the Supreme Court, citing section 10 of the FAA, noted that the power to vacate an arbitration award is limited, but added that: “the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject to judicial review for error in interpretation.” [13]

Despite this oblique support for the notion that manifest disregard of the law is a basis for judicial review of arbitration awards, Wilko was widely read as an acceptance by the Supreme Court of manifest disregard of the law as an independent basis for vacatur of an arbitration award. Indeed, ahead of Hall Street most Circuits recognized manifest disregard of the law as a basis for vacatur, although as applied, it was described as "a very narrow standard," indeed "one of the narrowest standards of judicial review in all of American Jurisprudence." [14]

In Hall Street, the Supreme Court rejected the notion that Wilko countenanced “expandable judicial review authority” by interpretation, or that it had accepted manifest disregard of the law as a further ground for vacatur of arbitration awards on top of those listed in section 10 of the FAA. [15] However, as the only issue before the Court was whether there could be private expansion of the grounds for judicial review by contract, the Court did not reach the question whether manifest disregard is an independent basis for judicial review generally. Moreover, the Court fueled uncertainty going forward with this observation regarding the reference to manifest disregard in Wilko:

Maybe the term “manifest disregard” was meant to name a new ground for review, but maybe it merely referred to the §10 grounds collectively, rather than adding to them. Or, as some courts have thought, “manifest disregard” may have been shorthand for §10(a)(3) or §10(a)(4), the subsections authorizing vacatur when the arbitrators were “guilty of misconduct” or “exceeded their powers.” [16]

Perceived as “hesitation” by the Supreme Court to reject the Wilko-based manifest disregard standard for judicial review in all circumstances, the Sixth Circuit U.S. Court of Appeals concluded that it would be imprudent to cease employing such a universally recognized principle.” [17] The stage was thus set for other courts to grapple with the unanswered question in Hall Street whether the Wilko-based manifest disregard standard could, or should, survive.

The Unanswered Question

In the immediate wake of Hall Street, some lower courts easily concluded that the Supreme Court eliminated manifest disregard as an independent ground for review. In Citigroup Global Markets, Inc. v. Bacon, [18] for example, the Fifth Circuit U.S. Court of Appeals concluded:

In light of the Supreme Court’s clear language that, under the FAA, the statutory provisions are the exclusive grounds for vacatur, manifest disregard of the law as an independent, non-statutory ground for setting aside an award must be abandoned and rejected. Indeed, the term itself, as a term of legal art, is no longer useful in actions to vacate arbitration awards. Hall Street made it plain that the statutory language means what it says: “courts must [confirm the award] unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title,” 9 U.S.C. §9 (emphasis added), and there’s nothing malleable about “must”.... Thus, from this point forward, arbitration awards under the FAA may be vacated only for reasons provided in §10. [19]

The Eleventh Circuit agreed in Frazier v. CitiFinancial Corp., [20] holding that judicially-created bases for vacatur are no longer valid in light of Hall Street. The court opined that the “categorical language” of Hall Street compelled that conclusion. [21] The Eighth Circuit likewise simply concluded that after Hall Street an arbitral award may be vacated only for the reasons enumerated in the FAA. [22] But the clarity with which these courts viewed Hall Street was clouded with the 2010 Supreme Court decision in Stolt-Nielsen S.A., in which the Court eschewed any conclusion regarding the survival of manifest disregard after Hall Street.

Other courts looked for ways to assure preservation of manifest disregard as a basis for vacatur after Hall Street. In Comedy Club, Inc. v. Improv West Associates, [23] the Ninth Circuit concluded that Hall Street did not undermine manifest disregard as a ground for vacatur when it is understood to mean a violation of section 10(a)(4) of the FAA. Prior to Hall Street, the Ninth Circuit had determined that manifest disregard for vacatur is “shorthand” for a statutory ground under the FAA, specifically section 10(a)(4), which allows a court to vacate where the arbitrators exceeded their powers. [24] In Comedy Club, the court concluded that Hall Street was not clearly irreconcilable with its prior holding, and that manifest disregard should remain a valid ground for vacatur “because it is a part of §10(a)(4).” [25] Another approach, taken by the Second Circuit, concluded that manifest disregard should be “reconceptualized as a judicial gloss on the specific grounds for vacatur enumerated in section 10 of the FAA, and allowed to stand as a statutory basis.” [26]

The Sixth Circuit opted for a straightforward conclusion that Hall Street did nothing to abrogate the existing recognition of manifest disregard as an independent basis. In Coffee Beanery, Ltd. v. WW, L.L.C., an unpublished decision, [27] the Sixth Circuit concluded that while Hall Street “significantly reduced” the ability of federal courts to vacate arbitration awards for reasons other than those specified in the FAA, it did not foreclose review for an arbitrator’s manifest disregard of the law. Reaching this conclusion, the court looked to the treatment in Hall Street of Wilko v. Swan, [28] and opined that in Hall Street, the Supreme Court did not come to any conclusion regarding the precise meaning of Wilko. Given the actual issue before the Court in Hall Street --whether parties could expand the scope of judicial review by their own agreement-- the Sixth Circuit concluded that the reference to Wilko in Hall Street related only to the contractual expansion issue and not to the availability of manifest disregard as a basis for vacatur. [29] The Court thus concluded:

In light of the Supreme Court’s hesitation to reject the “manifest disregard” doctrine in all circumstances, we believe it would be imprudent to cease employing such a universally recognized principle. Accordingly, this Court will follow its well-established precedent here and continue to employ the “manifest disregard” standard. [30]

This conclusion was sharply criticized as misreading the discussion of Wilko in Hall Street, and utterly failing to address the express conclusion in Hall Street that the grounds for vacatur found in section 10 of the FAA are exclusive. [31] Nevertheless, twice since the decision in Coffee Beanery the Sixth Circuit revisited the issue, and both times while casting doubt on the conclusion that manifest disregard remains a valid independent ground for vacating an arbitration award under the FAA, left Coffee Beanery in place. Just one month after deciding Coffee Beanery, another Sixth Circuit panel in Martin Marietta Materials, Inc. v. Bank of Oklahoma, [32] questioned an assumption by the parties that manifest disregard remained a valid standard after Hall Street and, although accepting the assumption, concluded that it “may not be true” that manifest disregard remains a valid ground. [33] Although the court accepted the assumption for purposes of the case before it, the invitation for a future challenge was obvious: “We simply acknowledge each assumption in order to allow future panels and litigants to choose for themselves whether to challenge these premises or to continue to walk down the same calf-path as we have.” [34]

A few days later, in Grain v. Trinity Health, Mercy Health Services Inc., [35] the Sixth Circuit further acknowledged that Hall Street’s reference to the “exclusive” statutory grounds for obtaining relief “casts some doubt on the continuing vitality” of manifest disregard of the law as a basis for vacating an arbitration award. Nevertheless, because the issue before the Sixth Circuit was modification of an award rather than vacatur, the court avoided the issue by acknowledging that it mattered only in regard to vacating arbitration awards, not to modifying them. [36] Thus, although the invitation to challenge remains open, the manifest disregard standard survives Hall Street in the Sixth Circuit straightaway, and the stage has been set for a tripartite split among the Circuits over whether the Supreme Court actually did foreclose manifest disregard as a basis for vacatur in Hall Street.

Foreclosing Manifest Disregard

Does Hall Street operate to foreclose manifest disregard of the law as an independent basis for vacatur? As Stolt-Nielsen S.A. most recently underscored, in Hall Street the Court did not come to any conclusion concerning the precise meaning of Wilko v. Swan, and held only that parties could not expand the scope of judicial review beyond section 10 of the FAA by their own agreement. Yet, would it be fair to conclude, appreciating the words and music of Hall Street, that the Court would next accept the Coffee Beanery blanket proposition that manifest disregard stands as an independent standard for review of arbitral awards outside the specified FAA grounds? Given the emphasis on exclusivity of section 10 grounds in Hall Street, it seems unlikely. Yet the unwillingness of the Court to respond either way in Stolt-Nielsen S.A. should be coupled with this statement in Hall Street before arriving at any conclusion:

The FAA is not the only way into court for parties wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of a different scope is arguable. But here we speak only to the scope of the expeditious judicial review [under the FAA]… deciding nothing about other possible avenues for judicial enforcement of arbitration awards. [37]

In actions not subject to the FAA, other avenues would particularly include state arbitration laws. Whether based on the original or 2000 Revised Uniform Arbitration Act, state statutes substantially mirror the FAA in provisions for vacating awards. [38] Unless these provisions are ultimately preempted by the FAA, parties are free to seek relief under state arbitration laws where jurisdiction is established. In those cases, state courts are left to ponder the fate of manifest disregard of the law as a basis for vacatur. The Supreme Court of Alabama most recently did just that in Raymond James Fin. Servs. v. Honea, [39] concluding that in state court proceedings Hall Street does not operate to invalidate a provision in an arbitration agreement authorizing de novo review or an arbitration award by a court. The Court embraced the observation in Hall Street that state statutory or common law might permit awards to be reviewed under a standard different that section 10 of the FAA. Alabama common law, said the Honea court, requires that arbitration agreements be rigorously enforced according to their terms. Thus, courts must give effect to a provision in the agreement for de novo review.

Honea notwithstanding, with the entire focus on section 10 exclusivity in Hall Street, the other possible “avenues” for review do not suggest any willingness of the U.S. Supreme Court going forward to accept manifest disregard of the law based on anything other than section 10. A thoughtful district court analysis suggests where the intersection of Hall Street and manifest disregard may lie. In Abbott v. Mulligan, [40] the court considered a post-Hall Street argument that manifest disregard of the law should continue to provide relief independent of section 10 of the FAA. The court rejected the naked proposition. It did, however, offer the following:

Despite the Supreme Court’s clear statement that the §10 grounds for vacatur are exclusive and cannot be supplemented by contract or judicial creation... the Court did not foreclose the essence of what appears to be Mr. Abbott’s argument regarding manifest disregard of the law. According to the Supreme Court, manifest disregard of the law can be read within the bounds of §10... as long as it refers to the §10 grounds for vacatur. But Hall Street makes one thing perfectly clear. Manifest disregard of the law cannot expand district court review of arbitration awards to include review of an arbitration panel’s alleged flawed legal analysis unless there exists evidence that the arbitrators engaged in some form of egregious conduct proscribed by §10, such as fraud or willful misconduct.... Misinterpretation or misapplication of the law, by itself, is not enough. [41]

The court suggested that a willful refusal to apply controlling law would illustrate the type of egregious conduct that could qualify a case for vacatur consistent with section 10 of the FAA. [42] But in the case presented, said the court:

[T]he evidence shows only that the panel was presented with two opposing views of the law, one by Mr. Abbott and one by Mr. Mulligan, and that it adopted one of those two views. Based on this, at best, all Mr. Abbott has shown is that the majority panel misapplied or misinterpreted Utah law. This provides no basis for a finding of misconduct under §10 of the FAA. [43]

In Hall Street, the Supreme Court made clear that whatever uncertainty exists concerning manifest disregard as addressed in Wilko v. Swan, it does not allow for any “general review for an arbitrator’s legal errors.” [44] The Court also explained that FAA section 10 only addresses extreme arbitral conduct-- “egregious departures from the parties’ agreed-upon arbitration....” [45] Egregious actions including fraud and willful misconduct are not equivalent with mistake of law. [46] Based on the universally accepted definition of manifest disregard of the law as being premised upon a conscious decision to ignore the law in fashioning an award, the Supreme Court, without undermining the exclusivity of section 10 grounds for vacatur, could accept it as willful misconduct and misbehavior by which the rights of a party have been prejudiced. As previously discussed, the Ninth Circuit, in Comedy Club, had no trouble preserving manifest disregard as a basis for vacatur as “shorthand for a statutory ground” --in that case specifically section 10(a)(4) of the FAA, which provides that a court may vacate where the arbitrators exceeded their powers. [47] Whether this is the logical extension of Hall Street to answer the question left open in Stolt-Nielsen SA, however, is discussed further below.

The Standard Lives On?

In Hall Street the Supreme Court cautioned that the statutory review provisions in the FAA substantiate a national policy favoring arbitration “with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.” [48] Any other reading, said the Court, “opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process’... and bring arbitration theory to grief in post-arbitration process.” [49] Any consideration of the future of manifest disregard of the law must be made with this perspective.

Manifest disregard of the law may facially represent the kind of “egregious” or “willful” misconduct contemplated by section 10 of the FAA. But recognizing the availability of manifest disregard of the law as a statutory basis for vacatur under either FAA section 10(a)(3) or 10(a)(4) requires a leap of faith that circumstances in which it is applied will evidence actual misconduct amounting to “fraud,” “corruption,” “evident partiality,” “misconduct,” “misbehavior,” “exceed[ing] powers,” or, essentially, conduct so undermining the integrity of the proceeding as to mandate a conclusion that, in Justice Souter’s words in Hall Street, the parties did not have their “agreed upon arbitration.” [50] Although recognition of manifest disregard of the law as extreme arbitral conduct which can amount to such conduct that is contemplated under FAA section 10 is plausible in particular fact settings, doing so is an invitation to abuse of the vacatur process, and opens the road to post-arbitration process grief about which the Court expressed concern. Preserving manifest disregard post-Hall Street, the Ninth Circuit shed light on this concern.

In Comedy Club, Inc. v. Improv West Assoc., [51]the Ninth Circuit opted to preserve manifest disregard of the law post-Hall Street simply by considering it to be a part of FAA section 10(a)(4). That said, it is worth examining the analysis the court undertook in determining whether manifest disregard within the scope of FAA section 10 had actually been shown. Setting the stage, the court first recognized, based on prior Ninth Circuit case law, that for an arbitrator’s award to be in manifest disregard of the law, it must be clear from the record that the arbitrator recognized the applicable law and then ignored it. [52] The court then engaged in a thorough analysis of the law applicable to issues raised in the arbitration, but much less so on the contention that the arbitrator had manifestly disregarded it.

The arbitrator in Comedy Club had interpreted controlling case law in California in a way to render it inapplicable to claims in the case. The court concluded that the arbitrator’s award did not follow “well-established California law.” [53] The grounds given by the arbitrator for disregarding the key case, said the court, were “fundamentally incorrect,” and thus, in the eyes of the court, in manifest disregard of the law. [54] The court then simply translated its conclusion into a basis for vacatur under FAA section 10(a)(4) because the arbitrator’s error was such that he had acted “beyond the scope of his authority as a matter of California law.” [55]

The distinction between review for an arbitrator’s legal error and the “fundamentally incorrect” assessment of the arbitrator’s determination amounting to manifest disregard of the law in Comedy Club is not discernible on the face of the Ninth Circuit opinion. Perhaps the error was considered egregious misconduct, although the court made no such characterization. Rather, the arbitrator’s reasoning was simply wrong concerning the scope of a valid covenant not to compete that was at issue in the case. Upon review, vacatur rested more on the consequences of the wrong decision for a party rather than any misconduct of the arbitrator. The court reasoned:

The arbitrator’s award, while aware of Dayton Time Lock, interpreted it in a way to render it inapplicable to this case. However, as we have explained, Dayton Time Lock established that under CBPC §16600 in-term covenants not to compete cannot prevent a party from engaging in its business or trade in a substantial section of the market. The arbitrator’s award effectively quarantines CCI from engaging in its business in forty-eight states until 2019 and does not follow well-established California law.... Even under the permissive standard with which we view arbitral decisions, the economic restraint of §9.j on competition is too broad to be countenanced in light of the clear prohibition of §16600, as interpreted by the California courts. The grounds given by the arbitrator for disregarding Dayton Time Lock are fundamentally incorrect. We hold that the arbitrator’s ruling that § 9.j is a valid covenant not to compete ignores CBPC §16600 and thus is in manifest disregard of the law.... [56]

There is danger in permitting unbounded translation of manifest disregard of the law into one of the specific grounds for vacatur set out in section 10 of the FAA. In Comedy Club there was no determination that the arbitrator had committed anything more than a plain error in interpretation and in determining not to apply what the court considered to be controlling law. Nor was there any explanation for the conclusion that a “fundamentally incorrect” basis for deciding an issue placed the conduct of the arbitrator outside the scope of his authority. Section 10(a)(4) of the FAA cannot be read as implying that a “wrong” decision on an issue properly before arbitrators exceeds their powers or is beyond the scope of the parties’ agreement, and should not be controlled by how wrong a decision is perceived to be. In Comedy Club, the manifest disregard conclusion appears to have been driven by the consequences for the losing party and public policy rather than actual misconduct of the arbitrator.

The U.S. Supreme Court denied a petition for a writ of certiorari in Comedy Club. [57] Thus, the “shorthand” approach to equating manifest disregard as a statutory ground for vacatur remains viable, as does the somewhat broader “reconceptualization” approach articulated by the Second Circuit that was left untouched by the Supreme Court in Stolt-Nielsen S.A. But both approaches stretch an independently defined principle to expand statutory grounds without regard to “egregious departures from the parties’ agreed-upon arbitration” articulated in Hall Street from the face of FAA section 10-- corruption, fraud, evident partiality, misconduct, misbehavior, exceeding powers-- the emphasis being on “extreme arbitral conduct.” [58] In Stolt-Nielsen S.A., the Supreme Court declined the opportunity to say whether these or any approaches will sustain manifest disregard after Hall Street. However, as discussed below, a signpost in Hall Street points the way to convergence of the presently disparate views.

A One Way Hall Street?

Although expressing doubt, only the Sixth Circuit has taken the post-Hall Street position that manifest disregard survives straightaway as an independent basis for vacatur, and the U.S. Supreme Court denied a petition for a writ of certiorari in that case as well. [59] With that court at one end of the spectrum and the Fifth Circuit in Citigroup Global Markets, Inc. v. Bacon on the other, there may ultimately be common ground in the preservation of manifest disregard as a means of interpreting the statutory grounds for vacatur. At present, however, a tripartite split among the Circuits thus remains, and recognizing that the U.S. Supreme Court has declined three opportunities to do so, it is uncertain when, or if, the question left open in Stolt-Nielsen S.A will be answered. Until it is answered, Hall Street is clearly not a one way street leading to the demise of manifest disregard, and lower courts will have to find their own way in those Circuits that have yet to take a position. As illustrated by Wachovia Securities, LLC v. Brand, [60] this may logically result in courts analyzing claims of manifest disregard on their merits as an independent basis for vacatur along with the evaluation of the specific grounds set out in section 10 of the FAA, and in that case specifically section 10(a)(4). In Brand, the court first concluded that an arbitration panel had not exceeded its powers by awarding attorneys fees and costs pursuant to the South Carolina Frivolous Civil Proceedings Sanctions Act, finding the record sufficient to conclude that the issue was before the arbitrators. Separately considering manifest disregard, the court found, among other things, that the plaintiff failed to show that the arbitrators correctly understood the statute and chose to ignore its limitations. [61] Vacatur was denied on both the statutory and independent grounds. [62]

Hall Street makes one thing certain: whether considered under the doctrine of manifest disregard of the law or any of the FAA statutory grounds for vacatur, there will be no general review for an arbitrator’s legal errors. The Supreme Court also made clear that any review must be based on extreme arbitral conduct. Despite the limited holding, the Court provided an unmistakable signpost for the way ahead:

Given this emphasis on extreme arbitral conduct, the old rule of ejusdem generis has an implicit lesson to teach here. Under that rule, when a statute sets out a series of specific terms ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows. Since a general term included in the text is normally so limited then surely a statute with no textual hook for expansion cannot authorize contracting parties to supplement review for specific instances of outrageous conduct with review for just any legal error. “Fraud” and mistake of law are not cut from the same cloth. [63]

The FAA does not, except in two instances in section 10(a)(3) --refusing to postpone the hearing upon sufficient cause shown, and refusing to hear evidence pertinent and material to the controversy-- define or limit misconduct or misbehavior by which the rights of a party may be prejudiced for purposes of vacatur. Nor does the FAA define how arbitrators “exceed their powers” or “imperfectly” execute them within the ambit of section 10(a)(4). Manifest disregard of the law, as the term has consistently been defined by courts, is extreme arbitral conduct. The exclusivity of FAA section 10 grounds for vacatur that is the message of Hall Street is not undermined by or inconsistent with recognition of manifest disregard of the law as extreme conduct supporting vacatur directly under section 10. It need not be a non-statutory ground for review, but rather evidence of conduct well within the purview of section 10.

To be sure, manifest disregard cannot be tantamount to “review for just any legal error.” There is inherent danger that it can become so, as evidenced by the Ninth Circuit’s “fundamentally incorrect” conclusion as the basis for vacatur in Comedy Club discussed above. But Hall Street assuredly did not foreclose manifest disregard of the law as a basis for vacatur, and the fact that the Court has declined multiple opportunities to say otherwise, and indeed in Stolt-Nielsen S.A. itself assumed, arguendo, that manifest disregard applied and carried out its review on that basis [64] speaks loudly to the point. Three streets will inevitably intersect.

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