Hoolahan v. IBC Advanced Alloys Corp.

947 F.3d 101

• Court: Court of Appeals for the First Circuit
• Decided: January 17, 2020
• Docket: 19-1444P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1444

GERALD R. HOOLAHAN,

Petitioner, Appellee,

v.

IBC ADVANCED ALLOYS CORP.,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

Ryan S. Lean, with whom Keesal, Young & Logan, Douglas B. Rosner, Matthew P. Horvitz, and Goulston & Storrs, PC were on brief, for appellant. Stephen F. Gordon, with whom Todd B. Gordon and The Gordon Law Firm LLP, were on brief, for appellee.

January 17, 2020 Thompson, Circuit Judge. In 2010, Appellant IBC

Advanced Alloys Corp. ("IBC") purchased Beralcast Corporation

("Beralcast") from Appellee Gerald R. Hoolahan and Gary Mattheson

in exchange for cash and shares in IBC. Over a year later, Hoolahan

went to sell his IBC Shares, but he was blocked. He did not know

why at the time. A few years later in 2015, Hoolahan discovered

that Mattheson hadn't been similarly blocked when he placed his

shares on the market in 2011. Upset by this disparate treatment

and believing that he had been conned out of large sums of money,

Hoolahan initiated an arbitration against IBC. During a one-day

hearing it came to light that IBC had harbored "ill-will" against

Hoolahan due to a claim tangentially related to the IBC-Beralcast

deal, causing it to block Hoolahan's 2011 attempt to sell. In the

end the arbitrator awarded Hoolahan damages in the amount he would

have received if he could have sold his shares at the same rate

Mattheson got in 2011; Hoolahan also received attorneys' fees and

costs.

Finding this all woefully unfair, IBC embarked on its

Mt. Everest climb: it decried the arbitrator's calculations and

first requested that the arbitrator modify the award. Denied

there, it kept trekking, and asked the district court to vacate

the award. Denied again, but still seeking the mountaintop, IBC

appealed to this court. And here we are.

- 2 - IBC asks us now to vacate, or at the very least remand

for reconsideration, the arbitrator's award. IBC's slog continues

to be nothing but uphill. That is because our review of arbitral

awards is extremely narrow, and we afford great deference to the

arbitrator's decision-making process. To be sure, there are

certain exceptions where we will vacate an award, but IBC has

failed to convince us that any of them apply here. And so we

affirm.

I. BACKGROUND

The Parties

Appellant IBC is a "beryllium and copper advanced alloys

company . . . [that] serves a variety of industries such as

defense, aerospace, automotive, [and] telecommunications . . . ."1

Appellee Hoolahan owned two companies, Advanced Specialty Metals

and Composite Material Solutions ("CMS"); certain assets from both

those companies were combined to form a new company: Beralcast,

that uses beryllium in its manufacturing operations. Hoolahan and

Mattheson were the only two shareholders of Beralcast.

The United States has classified beryllium as a

strategic material, as "[i]t has extensive use in the Defense

Industry, and users are required to keep strict control of the

usage and location of their beryllium inventory." For companies

1 https://ibcadvancedalloys.com/home/about-us/

- 3 - like Beralcast, there are only two commercial sources of beryllium:

(1) the Materion Corporation and (2) ULBA, a Kazakhstan Government-

owned corporation. Because Materion is a direct competitor of

Beralcast, Beralcast relies on ULBA for its beryllium. Hoolahan

also owned a separate company, Applied Materials Science, Inc.

("AMS"), a sister company to CMS, who would also purchase beryllium

from ULBA (we'll get to why that's important in a bit).

The Agreement

On February 17, 2010, IBC (and its subsidiary) purchased

Beralcast for its beryllium manufacturing operations from Hoolahan

and Mattheson. In exchange, Hoolahan and Mattheson received $2.25

million in cash consideration (the full amount deposited into the

bank account for AMS), and shares of capital stock in IBC ("IBC

Shares") equivalent in value to $2 million. Hoolahan received

7,303,271 IBC Shares; Mattheson, 5,957,905. The purchase and its

terms are set forth in a Share Purchase and Sale Agreement (the

"Agreement").

The Agreement's articles most relevant to this appeal

are:

 Two sub-articles of article 2.3, "Payment of Purchase Consideration": o Article 2.3(e)(i)(A) (prohibiting the sale, transfer, or trade of IBC Shares on the TSX Venture Exchange, a stock exchange in Canada, for four months and one day after the closing of the Agreement). o Article 2.3(e)(ii) (relieving IBC of any obligation "to register the IBC Shares or to

- 4 - take any other actions to facilitate or permit any resale or transfer thereof in the United States or otherwise by or to a US Person . . . .").  Article 3.2(p), "Judgments and Claims" (Hoolahan and Mattheson representing and warranting that there were no unsatisfied judgments, claims, or potential claims against Beralcast at the time of the Agreement).  Article 13.3, "Further Assurances" (obligating the Parties to "execute, acknowledge and deliver such other instruments and take such other action as may be reasonably necessary to carry out their obligations under this Agreement").  Article 13.6, "Governing Law" (agreeing that the Agreement be "interpreted and construed in accordance with the laws of the State of Delaware").  Article 13.6.2, "Arbitration" (obligating the parties to arbitrate any disputes arising out of the Agreement in accordance with the Commercial Rules of the American Arbitration Association ("AAA Commercial Rules")).  Article 13.9, "Time of the Essence" ("Time shall be of the essence in this Agreement and of all matters contemplated in this Agreement.").

Hoolahan's Attempts to Sell his IBC Shares

Over a year after the Agreement's execution, and well

past the "four months and one day" time constraint from article

2.3(e)(i)(A), in late April or early May of 2011, Hoolahan

attempted to sell his IBC Shares through his brokerage firm, Edward

Jones.2 At that time, IBC Shares were valued at $0.27 per share,

so Hoolahan's total shares would have been worth approximately

$1,971,883.10. On July 25, 2011, IBC's Toronto (Canada) transfer

agent informed Hoolahan's brokerage firm that Hoolahan's request

2 It is unclear from the record where or to whom Hoolahan attempted to sell his shares in 2011.

- 5 - for sale had been denied because the agent had been "unsuccessful

in obtaining approval [for the sale] from the issuer" — IBC. That

same letter advised Hoolahan's brokerage firm to "contact the

issuer" about the denial. Hoolahan then handed the issue over to

his legal counsel, Bruce Schoenberger, to investigate.

Schoenberger started by contacting Hoolahan's brokerage

firm. On May 16, 2012, an administrator from the firm emailed

Schoenberger's colleague that Schoenberger needed to contact IBC's

Chief Financial Officer, Simon Anderson, regarding Hoolahan's

inability to sell his shares. That same day, Schoenberger spoke

with Anderson over the phone for about five to ten minutes (the

"Phone Call"). Anderson told Schoenberger during the call that

IBC had blocked the sale of Hoolahan's IBC Shares because Hoolahan

had failed to disclose an outstanding $208,000 claim by ULBA (the

Kazakhstan corporation) against AMS3 (sister company to CMS, which

was the forerunner to Beralcast) existing at the time of the

Agreement's execution ("the ULBA/AMS claim").4 In response,

Schoenberger told Anderson that he believed the sale restriction

on Hoolahan's IBC Shares violated the terms of the Agreement, and

that the damages for this breach would be based upon the change in

3 AMS never responded to ULBA's claim for $208,000 and ULBA was therefore awarded a default judgment against AMS in 2008. 4 Schoenberger testified about the Phone Call during the arbitration hearing which we'll get to in short order.

- 6 - value of Hoolahan's shares from the day Hoolahan had tried to sell

them to their value at the time of the Phone Call. At the end of

the call, Anderson told Schoenberger that he would send a follow-

up email introducing Schoenberger to IBC's corporate counsel.

Anderson did so; Schoenberger responded to the email with a CC to

IBC's counsel, memorializing the Phone Call ("the Email").

In May 2013, Hoolahan (whose IBC Shares had undergone a

series of "reverse stock splits"5) was able to sell 250,000 of his

IBC Shares for $25,000, at $0.10 per share. Had Hoolahan sold all

of his shares at that time (1,217,212 due to the first reverse

split), he would have received a total of $121,721.

5 To track the number of shares Hoolahan possessed over the course of this saga, we need to explain how IBC's shares underwent "reverse stock splits" in 2012 and 2016. "When a company completes a reverse stock split, each outstanding share of the company is converted into a fraction of a share. . . . A company may declare a reverse stock split in an effort to increase the trading price of its shares – for example, when it believes the trading price is too low to attract investors to purchase shares, or in an attempt to regain compliance with minimum bid price requirements of an exchange on which its shares trade." See Securities & Exchange Commission, Reverse Stock Splits, Investor.gov (Jan. 16, 2020), https://www.investor.gov/additional-resources/general- resources/glossary/reverse-stock-splits.

In December 2012, IBC completed a six-for-one reverse stock split, decreasing the number of Hoolahan's IBC Shares from 7,303,271 to 1,217,212. On May 23, 2016, IBC completed another reverse stock-split, this time ten-for-one, lowering Hoolahan's 967,212 shares (remaining after his May 2013 sale of 250,000 shares) to 96,721.

- 7 - Discovery of the IBC-Mattheson Pooling Agreement

In 2015, Hoolahan and Mattheson were engaged in

litigation unrelated to the issues in this case. Discovery during

that litigation, however, uncovered a Voluntary Pooling Agreement

(to be explained in a moment) between IBC and Mattheson entered

into on May 5, 2011 (the "IBC-Mattheson Pooling Agreement") —

around the same time that Hoolahan had made his first unsuccessful

attempt to sell his IBC Shares. The IBC-Mattheson Pooling

Agreement permitted Mattheson to sell his IBC Shares at certain

increments on an agreed-upon schedule, including between 2011 and

2012, when Mattheson made six sales for some of his IBC Shares for

a total of $421,176.14.

The Arbitration

Upset by Mattheson's special treatment and profit,

Hoolahan filed a Demand for Arbitration with the American

Arbitration Association ("AAA") asserting claims against IBC for

willful and knowing breach of the Agreement and breach of the

implied covenant of good faith and fair dealing for deliberately

blocking Hoolahan's sale of IBC Shares.6 Hoolahan's initial claim

for damages, $1,850,162 (plus attorneys' fees, costs, and

6Hoolahan had also brought a claim under Massachusetts General Law ("M.G.L.") Ch. 93A for unfair and deceptive trade practice or fraud. The arbitrator found that the facts of the case substantiated a violation of neither M.G.L. Ch. 93A, nor the equivalent Delaware law. This issue is not on appeal.

- 8 - expenses), was based on the drop in market value in Hoolahan's

total IBC Shares from approximately $1,971,883.10 in 2011 to

$121,721 in 2013 when he was able to make his first sale.

On April 28, 2017, a one-day arbitration was held in

Boston, Massachusetts, before AAA arbitrator Robert T. Ferguson.

At the hearing, Hoolahan claimed IBC deliberately blocked his sale

of IBC Shares in breach of the Agreement because of the ill-will

IBC harbored against Hoolahan in connection with the outstanding

ULBA/AMS claim. Citing to article 2.3 of the Agreement, IBC

responded that it could not breach the Agreement for failing to

assist in the sale of IBC Shares because the Agreement explicitly

released IBC from any such obligation. IBC also argued that it

did not impermissibly block Hoolahan's sale because it was legally

entitled to restrict the sale of IBC Shares in the U.S., and that

Hoolahan was free to sell on the Canadian TSX Exchange four months

and one day after the Agreement was executed.

During the hearing, attorney Schoenberger (appearing

only as a witness; Hoolahan was represented by other counsel during

the hearing) walked the arbitrator through his 2012 Phone Call and

Email with Anderson. Anderson was originally scheduled to testify

by videoconference, but was unavailable due to a death in the

family. As IBC's counsel attempted to make a proffer of what would

have been provided by Anderson, Hoolahan's counsel objected. Then

the following exchange ensued:

- 9 - IBC COUNSEL: I will if, in fact, we have -- we don't have Mr. Anderson here due to the death of his father, so it's -- and he wouldn't have been here anyway. It would have been by video conference due to his physical condition, but, that said, I would be more than happy to solicit from him an affidavit. HOOLAHAN COUNSEL: Oh, no, no. ARBITRATOR FERGUSON: I'd prefer to see him. HOOLAHAN COUNSEL: There will be no affidavits. He's got to be . . . here and examined and cross-examined. ARBITRATOR FERGUSON: We can schedule a deposition if you'd like. HOOLAHAN COUNSEL: Today is the hearing. ARBITRATOR FERGUSON: If there's an objection to that, today's the hearing. IBC COUNSEL: If he's objecting, I can petition. HOOLAHAN COUNSEL: Today's the hearing date. HOOLAHAN: This is insane. ARBITRATOR FERGUSON: Continue. IBC COUNSEL: If I could continue, so the fact of the matter is that this7 is Mr. Anderson's testimony and what has been set forth by Mr. Schoenberger here, I think, is really at the crux of this dispute.

Neither party raised the option of postponing the hearing, nor did

IBC raise the Anderson affidavit again.8

The Phone Call and Email between Schoenberger and

Anderson were central to Hoolahan's claims in arbitration because

7 It appears from the record that IBC's counsel here was referring to the theoretical testimony of Mr. Anderson, and not any actual affidavit he had on hand. 8 Hoolahan tells us that IBC knew of Anderson's unavailability before the hearing and wrote in an email dated three days before the hearing that it would not be requesting a postponement. But because IBC first raised the issue of postponement on appeal, we need not delve into the significance — or, lack thereof — of this email.

- 10 - it was the only evidence of IBC admitting that it had blocked

Hoolahan's 2011 sale, and why. During arbitration, IBC objected

to the admission of the Email and to Schoenberger's testimony about

the Phone Call as violative of Rule 4.2 of the Ohio Rules of

Professional Conduct (Schoenberger is licensed to practice in

Ohio), which prohibits an attorney from directly communicating

with a represented party.9 Schoenberger maintained that he was

unaware that IBC or Anderson was represented by counsel in this

dispute until the end of the Phone Call. At the end of the hearing,

the arbitrator again acknowledged IBC's objection to

Schoenberger's testimony and asked the parties to "justify their

positions" in post-hearing briefing as to the inclusion or

exclusion of the Phone Call and Email.

9"In representing a client, a lawyer shall not communicate with a person the lawyer knows to be represented by another lawyer in the matter . . . ." Ohio R. Prof'l Conduct (Prof. Cond. Rule 4.2). "In the case of a represented organization, this rule prohibits communications with a constituent of the organization who . . . has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Id. at cmt. 7. "The prohibition on communications with a represented person applies only in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(g). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious." Id. at cmt. 8 (emphasis added).

- 11 - During his closing statement, IBC's counsel speculated

about the reason Hoolahan was unable to complete his 2011 sale of

IBC Shares, guessing that Hoolahan's broker was "not a registered

broker-dealer on the Toronto broker exchange" or that "a U.S.

person" had been "identified [as] a buyer." Hoolahan's counsel

leaped to point out that there was no evidence to back up these

speculations. Then IBC's counsel said, seemingly off-the-cuff,

"we would freely admit there was ill will between Mr. Hoolahan and

IBC[.]"

After the arbitration hearing Hoolahan submitted via

email10 a revised damages calculation "based upon the '[IBC-

Mattheson] Pooling Agreement,'" lowering his ask from

$1,850,162.00 to $1,239,737.56, plus attorneys' fees, costs, and

expenses.11

The Award and Ensuing Litigation

On September 8, 2017, the arbitrator entered a final

arbitration award (the "Award") and found that IBC had: (1) denied

Hoolahan the benefit of his contractual bargain by blocking his

sale and deliberately breaching articles 13.3 and 13.9 of the

Agreement, and (2) breached the implied covenant of good faith and

10 The email making this request is not in the record. 11 Hoolahan refers to "two damages-only submissions to the Arbitrator" in his brief, but does not cite to those documents in the record; nor could we locate them.

- 12 - fair dealing. The arbitrator explained that IBC's admission of

ill-will towards Hoolahan and the disparity in treatment between

Hoolahan and Mattheson, as evinced by the IBC-Mattheson Pooling

Agreement, "amount[ed] to a per-se [sic] violation [of the

Agreement] and leaves no doubt that [IBC] acted in bad faith and

deliberately denied [Hoolahan] the benefit of the bargain [he] was

entitled to under the Agreement." The arbitrator further explained

that "the timing of the grievance, the facts of the case, the

evidence as offered and the live testimony at the Hearing

concern[ing] [IBC]'s admitted 'ill-will' towards [Hoolahan]" all

supported a finding of breach of the implied covenant of good faith

and fair dealing. He accepted Schoenberger's testimony as

"credible, stand-alone evidence" and noted that IBC did not offer

any "[w]itness, deposition or other evidence to contradict

Attorney Schoenberger's live testimony." He excluded the Email as

"technically irrelevant" and cumulative of Schoenberger's

testimony.

The arbitrator awarded Hoolahan damages in the amount

requested, $1,239,737.56, plus attorneys' fees, costs, and

expenses in the amount of $135,786.76. The damages figure was

calculated by applying Hoolahan's original, total 2011 shares

(7,303,271) to the stock value Mattheson had received on his sales

made in accordance with the IBC-Mattheson Pooling Agreement. The

arbitrator did not explicitly offset the Award by the profit

- 13 - Hoolahan had made from his 2013 sale of 250,000 IBC Shares, nor by

the value of the 96,721 IBC Shares Hoolahan still held at the time

of the Award.

Within twenty days of the Award's issuance, IBC filed a

Request to Modify the Award, pursuant to AAA Commercial Rule

R-50. IBC for the first time contended that the Award should be

discounted by the 96,721 IBC Shares Hoolahan retained at the time

of the Award, and that because Mattheson had been able to sell

only 32.7% of his shares under the IBC-Mattheson Pooling Agreement,

the damages portion of the Award should have been 32.7% of

$1,239,737.56.12 IBC also raised the fact that "IBC's essential

witness Simon Anderson was denied the opportunity to be heard,"

but did not explain why what Anderson had to say might alter the

Award.13 Finally, IBC appended to its Request an affidavit from

Mattheson describing the IBC-Mattheson Pooling Agreement. The

arbitrator denied the Request.

On October 11, 2017, Hoolahan filed a Petition to Confirm

the Award in U.S. District Court for the District of Massachusetts.

Conversely, IBC filed a Petition to Vacate the Award. District

12 Oddly enough, IBC did not ask in its Request to Modify that the Award also be discounted by Hoolahan's proceeds from his 2013 sale of 250,000 IBC shares. 13 IBC also requested that the arbitrator account for the cash consideration Hoolahan had received under the Agreement when adjusting the Award. IBC does not raise this issue on appeal.

- 14 - Judge O'Toole entered an order confirming the Award on March 27,

2019. IBC now appeals to this court asking us to vacate the

district court's order confirming the award, or, at a minimum,

remand this case so that the district court can return the matter

to arbitration for a rehearing on damages.

II. DISCUSSION

Against this factual backdrop, IBC asks this court to

find that the arbitrator misinterpreted the Agreement, ignored

essential evidence, and considered impermissible evidence, all to

lead us to the conclusion that the Award should be vacated, or at

the very least modified. The burden rests upon IBC "to establish

that the arbitrator's award should be set aside." Dialysis Access

Ctr., LLC v. RMS Lifeline, Inc., 932 F.3d 1, 7 (1st Cir. 2019)

(citing Ortiz-Espinosa v. BBVA Sec. of Puerto Rico, Inc., 852 F.3d

36, 48 (1st Cir. 2017)).

Standard of Review

Generally, we review the district court's decision to

confirm or vacate an arbitration award de novo, Dialysis Access

Ctr., 932 F.3d at 7 (citing Ortiz-Espinosa, 852 F.3d at 47); see

also Cytyc Corp. v. DEKA Prods. Ltd. P'ship, 439 F.3d 27, 32 (1st

Cir. 2006), but we do so with great circumspection: "[a] federal

court's authority to defenestrate an arbitration award is

extremely limited." Mt. Valley Prop., Inc. v. Applied Risk Servs.,

- 15 - Inc., 863 F.3d 90, 93 (1st Cir. 2017) (quoting First State Ins.

Co. v. Nat'l Cas. Co., 781 F.3d 7, 11 (1st Cir. 2015)).

Though we have a robust record before us, including the

full transcript from the one-day arbitration hearing, the

Agreement, and the Award, we remain mindful that in reviewing an

arbitration award, "[w]e do not sit as a court of appeal to hear

claims of factual or legal error by an arbitrator or to consider

the merits of the award." Asociación de Empleados del E.L.A. v.

Unión Internacional de Trabajadores de la Industria de

Automóviles, 559 F.3d 44, 47 (1st Cir. 2009) (quoting Challenger

Caribbean Corp. v. Unión Gen. de Trabajadores de P.R., 903 F.2d

857, 860 (1st Cir. 1990)); see also Advest, Inc. v. McCarthy, 914

F.2d 6, 8 (1st Cir. 1990) (quoting United Paperworkers Int'l Union

v. Misco, Inc., 484 U.S. 29, 38 (1987)).

In reviewing the arbitrator's interpretation of the

Agreement, for example, as long as the Award "draw[s] its essence"

from the Agreement that underlies the arbitration proceeding,

Cytyc Corp., 439 F.3d at 32 (quoting United Paperworkers Int'l

Union, 484 U.S. at 38), and the arbitrator "arguably constru[ed]

or appl[ied] . . . the [Agreement] within the scope of [his]

authority," id., we will not disturb the Award. "That a reviewing

court is convinced that the arbitrator[] committed error — even

serious error — does not justify setting aside the arbitral

decision." Id. "This remains true whether the arbitrators'

- 16 - apparent error concerns a matter of law or a matter of fact." Id.

(quoting Advest, Inc., 914 F.2d at 8); see also Dialysis Access

Ctr., 932 F.3d at 9 (adding that "our limited review applies

'[e]ven where such error is painfully clear, [because] courts are

not authorized to reconsider the merits of arbitration awards'"

(quoting Advest, 914 F.2d at 8)).

All that said, arbitration awards are not invincible,

and there are "a few exceptions to the general rule that

arbitrators have the last word." Cytyc Corp., 439 F.3d at 32–33.

"One set of exceptions is codified in the Federal Arbitration Act

(FAA). The operative provision, section 10(a) of the FAA,

authorizes vacatur only in cases of 'specified misconduct or

misbehavior on the arbitrators' part, actions in excess of arbitral

powers, or failures to consummate the award.'" Id. (citing Advest,

914 F.2d at 8). "A second set of exceptions flows from the federal

courts' inherent power to vacate arbitral awards," id. (citing

Advest, 914 F.2d at 8), in the event of a "manifest disregard of

the law." Advest, 914 F.2d at 8-10 & nn.5, 6. This power outside

of section 10(a) of the FAA is nonetheless very limited and narrow.

Cytyc Corp., 439 F.3d at 33; Advest, 914 F.2d at 7–8.14

14The availability of non-statutory grounds to vacate an arbitration award is in question in light of the Supreme Court's decision Hall Street Assoc.'s, L.L.C. v. Mattel, Inc., 552 U.S. 576, 584-590 (2008) (stating "the text compels a reading of the §§ 10 and 11 categories [of the FAA] as exclusive"). But "this court has avoided answering the question and instead has assumed its

- 17 - We begin our analysis with IBC's statutory arguments and

conclude with the common law.

The Merits

i. Section 10(a) of the Federal Arbitration Act

The FAA's central purpose is to ensure that "private

agreements to arbitrate are enforced according to their terms."

Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 682

(2010) (citations omitted). Congress passed the FAA to make

written arbitration provisions or agreements "valid, irrevocable,

and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract." 9 U.S.C. § 2; Stolt-

Nielsen S.A., 559 U.S. at 682. There are four circumstances where

a court may vacate an arbitration award under the FAA:

(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

continued application when no manifest disregard of the law [has] occurred," Dialysis Access Ctr., 932 F.3d at 13 n.13 (citing Mt. Valley Prop., Inc., 863 F.3d at 94). Therefore, like in Dialysis Access Ctr., since we find no manifest disregard of the law, we "continue to leave that question for another day." Id.

- 18 - mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a)(1)-(4). IBC argues that three of these

circumstances (a couple debuted for the first time on appeal) exist

here, asserting that vacatur is warranted because: the Award was

procured by undue means due to reliance on Schoenberger's

testimony, see id. at § 10(a)(1); the arbitrator was guilty of

misconduct in refusing to postpone the hearing and accept an

affidavit from IBC's Anderson to rebut Schoenberger's testimony,

see id. at § 10(a)(3); and the arbitrator exceeded his powers in

awarding attorneys' fees and imposing a nonexistent contractual

obligation on IBC, see id. at § 10(a)(4).

a. 9 U.S.C. § 10(a)(1)

IBC argues that the Award should be vacated because it

was "procured by . . . undue means." 9 U.S.C. § 10(a)(1). So let

us first explore that concept. This court examined a claim for

vacatur on the basis of undue means for the first time in Nat'l

Cas. Co. v. First State Ins. Grp., 430 F.3d 492, 499 (1st Cir.

2005). In doing so, it took out-of-circuit guidance15 and found

15 See PaineWebber Group, Inc. v. Zinsmeyer Trusts P'ship, 187 F.3d 988, 991 (8th Cir. 1999) (reversing finding of undue means where petitioner failed to prove that respondent's alleged misconduct in the discovery process was intentional or that it procured the award); Am. Postal Workers Union, AFL–CIO v. U.S. Postal Serv., 52 F.3d 359, 362 (D.C. Cir. 1995) (declining to find undue means where respondent introduced arrest record contrary to state law because undue means requires action equivalent in gravity to fraud or corruption). After our decision in Nat'l Cas. Co.,

- 19 - that "[t]he best reading of the term 'undue means' . . . is

that it describes underhanded or conniving ways of procuring an

award that are similar to corruption or fraud, but do not precisely

constitute either." See id. (explaining that there must be

"intentional malfeasance" to justify vacating an arbitral award).

Ultimately, this court affirmed the award in Nat'l Cas. Co. in

favor of appellee, finding that appellee's refusal to produce

documents, in light of which the arbitrator had drawn a negative

inference against appellee, did not amount to "undue means" where

such conduct did not "amount[] to the kind of intentional

malfeasance that justifies vacatur under the statute." Id.

IBC's "procured by undue means" contention is predicated

on the alleged ethically-improper testimony of Schoenberger,

Hoolahan's attorney, who, you'll remember, directly called IBC's

CFO Anderson to inquire about Hoolahan's inability to sell his

shares, and testified during the arbitration that he learned only

at the end of the Phone Call that IBC was represented by counsel.

Essentially, IBC argues that but for the arbitrator's reliance on

the communication between Schoenberger and Anderson that IBC

contends violated the Ohio Rules of Professional Conduct, the

the Fourth Circuit in MCI Constructors, LLC v. City of Greensboro also declined to find that the respondent procured an award by undue means by referencing evidence outside of the record because the petitioner did not show the references influenced the arbitrator's decision. 610 F.3d 849, 858-59 (4th Cir. 2010).

- 20 - arbitrator would have no evidence of "'ill-will' as the basis for

his finding that IBC breached the implied covenant of good faith

and fair dealing." Hoolahan responds that Schoenberger's

testimony was admissible, as the arbitrator so found, because

Schoenberger did not know that IBC had legal representation when

he initiated the call and thus violated no ethical rules.

Our take: IBC is unable to show that Schoenberger's

testimony constituted conduct amounting to "intentional

malfeasance." See id. The arbitrator determined that

Schoenberger's conduct did not violate the Ohio Rules of

Professional Conduct,16 as he found to be truthful and credible

Schoenberger's testimony that he was unaware IBC was represented

by counsel until the end of the Phone Call with Anderson. As we

have no basis to discredit this finding, IBC's argument cannot

stand.

And even if the arbitrator's reliance on Schoenberger's

testimony did constitute reliance on undue means (which we do not

believe it does), IBC also fails to show that Schoenberger's

testimony procured the award. The arbitrator explained in his

Award that his finding of "ill-will" rested on "the timing of the

grievance, the facts of the case, the evidence as offered" — not

16And we need not address here what we would do if Schoenberger's conduct was determined to have violated the Ohio Rules of Professional Conduct, and how such a violation would interact with the other rules and law governing the Agreement.

- 21 - solely on Schoenberger's testimony.17 See PaineWebber, 187 F.3d

at 994–95 (finding no undue means, even assuming that the

respondent intentionally and incorrectly asserted privilege over

documents in discovery, because there was no proof that the error

"procured" the award).

Taking this all in, we find that IBC has failed to show

that the award was procured by a reliance on undue means and should

be vacated under 9 U.S.C. § 10(a)(1).

b. 9 U.S.C. § 10(a)(3)

IBC also argues that the arbitrator's refusal to

postpone the hearing or permit the submittal of an affidavit from

IBC's Anderson amounts to misconduct warranting vacatur under

9 U.S.C. § 10(a)(3). Section 10(a)(3) of the FAA lists three

separate grounds for vacatur: "[w]here the arbitrators were guilty

of misconduct in [1] refusing to postpone the hearing, upon

sufficient cause shown, or [2] in refusing to hear evidence

pertinent and material to the controversy; or [3] of any other

misbehavior by which the rights of any party have been prejudiced."

17And let's not forget that counsel for IBC himself stated during the hearing: "we would freely admit there was ill will between Mr. Hoolahan and IBC" — a statement that the arbitrator relied upon in the Award to find IBC's "admission of 'ill-will' towards" Hoolahan. See Lima v. Holder, 758 F.3d 72, 79 (1st Cir. 2014) ("'[A]n admission of counsel during trial is binding on the client' if, in context, it is 'clear and unambiguous.'") (quoting Levinsky's, Inc. v. Wal–Mart Stores, Inc., 127 F.3d 122, 134 (1st Cir. 1997)).

- 22 - 9 U.S.C. § 10(a)(3). IBC advances arguments based on the first

and second grounds.

IBC's first gripe is that the arbitrator did not postpone

the hearing to allow for later testimony from Anderson, and its

second that the arbitrator's refusal to admit into evidence an

affidavit from Anderson amounted to a "refus[al] to hear evidence

pertinent and material to the controversy." 9 U.S.C. § 10(a)(3).

IBC concedes that it raised neither of these arguments during the

hearing. IBC never even asked for a postponement, and after the

arbitrator denied the admission of an affidavit, IBC did not object

to the denial, and it did not offer any reason or argument as to

why the affidavit was admissible or how IBC was prejudiced. Nor

did IBC raise these arguments before the district court. It raises

them for the first time in its opening appeal brief.

Hat in hand and acknowledging its failure to preserve

its section 10(a)(3) arguments, IBC assumes that this court "will

not consider issues not raised below" and therefore urges this

court to review these arguments de novo as "exceptional" ones.

But that is not how we handle arguments raised for the first time

on appeal. Arguments "debuted on appeal" are deemed "forfeited"

and therefore engender plain error review. Nat'l Fed'n of the

Blind v. The Container Store, Inc., 904 F.3d 70, 85 (1st Cir. 2018)

(citing McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.

- 23 - 1991) and Dávila v. Corporación De P.R. Para La Difusión Pública,

498 F.3d 9, 14 (1st Cir. 2007)).

"Plain error requires appellants to demonstrate: '(1)

an error occurred (2) which was clear or obvious . . . (3) affected

[his] substantial rights [and] (4) seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings.'" Nat'l Fed'n of the Blind, 904 F.3d at 85 (quoting

Dávila, 498 F.3d at 14–15). IBC's first argument, that the

arbitrator's failure to postpone the hearing (without being asked)

warrants vacatur of the Award, fails under this standard as IBC

"cites no authority that mandates such a sua sponte [i.e., of the

arbitrator's own accord] continuance [another word for

"postponement"]." See United States v. Scott, 877 F.3d 42, 51

(1st Cir. 2017), cert. denied, 139 S. Ct. 65 (2018). Therefore,

"[w]ith no authority suggesting such a continuance was required,

there was no 'clear or obvious' error, and thus [IBC] cannot

succeed on plain error review." Id.

Next, we apply plain error review to IBC's contention

that the arbitrator's refusal to admit into evidence an affidavit

from Anderson amounted to a "refus[al] to hear evidence pertinent

and material to the controversy." 9 U.S.C. § 10(a)(3); cf. Correia

v. Feeney, 620 F.3d 9, 15 (1st Cir. 2010) (applying plain error

review to the district court's admission of evidence where the

specific objection to the admission was not raised with the

- 24 - district court and finding none). IBC essentially complains that

the arbitrator's reliance on Schoenberger's testimony without

hearing testimony from Anderson to rebut it was error warranting

vacatur of the Award: "[i]n view of the importance of

Schoenberger’s unrebutted testimony to the arbitrator’s final

decision on the merits, the arbitrator’s refusal to either permit

an affidavit from Anderson or hold the record open so that

Anderson’s testimony could be taken via deposition or

videoconference at a later date deprived IBC of a fair hearing.

This misconduct fits squarely within the FAA’s grounds for

vacatur." This argument borders on the absurd. Knowing full well

in advance that Anderson would be unavailable to testify, IBC never

asked for a continuance (nor did it think to prepare an affidavit

ahead of the hearing to at least offer as evidence). On the other

hand, Hoolahan's witness, attorney Schoenberger, was available and

subject to cross, such that the arbitrator could hear from him,

make a credibility determination, and render a decision based on

all the evidence he deemed admissible. Under these circumstances,

we see no error, plain or otherwise, in the arbitrator's decision

to forgo an affidavit from Anderson. Cf. Long v. Fairbank

Reconstruction Corp., 701 F.3d 1, 5 (1st Cir. 2012) (rejecting

appellant's argument raised for the first time on appeal that the

district court erred in admitting an expert's video deposition

where the court subsequently discredited a report the expert had

- 25 - relied upon, finding that because the expert had "relied on many

sources" outside that report, "the district court did not err —

let alone plainly err — in admitting the video").

And so we stop there. We find that IBC has failed to

convince us that vacatur of the Award under 9 U.S.C. § 10(a)(3) is

warranted.

c. 9 U.S.C. § 10(a)(4)

IBC's last statutory argument is that the arbitrator

misinterpreted the Agreement, leading him to "exceed[] [his]

powers" under 9 U.S.C. § 10(a)(4) in two ways,18 by: (1) awarding

Hoolahan attorneys' fees, and (2) disregarding a provision in the

Agreement that disclaimed IBC's obligation to assist Hoolahan in

reselling his IBC Shares. IBC did not raise the first argument

before the district court,19 and while it did raise the second one

below, thus preserving its challenge, the district court did not

18 In the summary of its argument, IBC contends that "award[ing] a windfall to Hoolahan" by not discounting the Award by Hoolahan's 2013 sale and remaining IBC Shares was also an instance of the arbitrator exceeding his authority under 9 U.S.C. § 10(a)(4). However, IBC develops this specific point no further in its brief, and therefore we find this angle of IBC's section 10(a)(4) argument waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 19Attorneys' fees came up only tangentially, at best, during arbitration.

- 26 - rule on it. For his part, Hoolahan does not address either argument

in his brief.20

IBC's failure to raise the issue of attorneys' fees below

(during arbitration or in front of the district court) would

ordinarily trigger plain error review as just discussed. Nat'l

Fed'n of the Blind, 904 F.3d at 85. But because Hoolahan does not

advocate for plain error review and the highly-deferential de novo

review of an arbitration award is nearly as demanding as plain

error review, see, e.g., Díaz-Fonseca v. Puerto Rico, 451 F.3d 13,

36 (1st Cir. 2006) ("The [plain error] standard is high, and 'it

is rare indeed for a panel to find plain error in a civil case.'")

(quoting Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir.

2002)), such that the outcome will in this case be the same under

either standard, we will review this issue de novo as well, see

United States v. Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004)

(reviewing de novo where the appellee did not argue for a plain

error standard), albeit with the deference required.

20 Hoolahan's failure to rebut IBC's section 10(a)(4) arguments raises the issue of appellee waiver, which we have not confronted head-on in this circuit before. See, e.g., W. Virginia Coal Workers' Pneumoconiosis Fund v. Bell, 781 F. App'x 214, 226 (4th Cir. 2019). But we exercise our discretion, see Guillemard- Ginorio v. Contreras-Gomez, 585 F.3d 508, 517-18 (1st Cir. 2009), to bypass the issue of appellee waiver and leave the ramifications for another day, particularly because we will analyze IBC's arguments under a de novo standard (we'll explain in a minute) and therefore discern no unfairness towards IBC here.

- 27 - Like IBC's other theories for vacatur, its section

10(a)(4) one faces a precipitous incline: "[a]bsent a strong

implication that an arbitrator exceeded his or her authority, the

arbitrator is presumed to have based his or her award on proper

grounds." Dialysis Access Ctr., 932 F.3d at 11 (quoting Labor

Relations Div. of Constr. Indus. v. Int'l Bhd. of Teamsters, Local

#379, 29 F.3d 742, 747 (1st Cir. 1994)). Once again, we remember

that "as long as the arbitrator is even arguably construing or

applying the contract and acting within the scope of his authority,

that a court is convinced he committed serious error does not

suffice to overturn his decision." United Paperworkers Int'l

Union, 484 U.S. at 38. Under section 10, we "do not sit to hear

claims of factual or legal error by an arbitrator as an appellate

court does in reviewing decisions of lower courts," and "[e]ven

where such error is painfully clear, courts are not authorized to

reconsider the merits of arbitration awards." Advest, 914 F.2d at

8 (internal quotation marks omitted).

1. Attorneys' Fees

IBC argues that the arbitrator exceeded his authority by

awarding attorneys' fees to Hoolahan in contravention of the rules

and law governing the Agreement: the AAA Commercial Rules and

Delaware state law. IBC notes that the AAA Commercial Rules do

not permit an award of attorneys' fees unless requested by all

parties or otherwise authorized by law or the arbitration

- 28 - agreement. And IBC argues that because Delaware follows the

"'American Rule,' whereby a prevailing party is generally expected

to pay its own attorneys' fees and costs," Hoolahan was not

entitled to attorneys' fees.21

Our task here is to follow the "cardinal principle of

contract construction[] that a document should be read to give

effect to all its provisions and to render them consistent with

each other." Mastrobuono v. Shearson Lehman Hutton, Inc., 514

U.S. 52, 63 (1995). See also Dialysis Access Ctr., 932 F.3d at

11-12.

Rule 47 of the AAA Commercial Rules permits an arbitrator

to award attorneys' fees under three circumstances: "if [1] all

parties have requested such an award or [2] it is authorized by

law or [3] their arbitration agreement."22 Here, there is no

indication on the record that circumstance one (that both parties

requested attorneys' fees) or three (that the Agreement itself

explicitly allows for an award of attorneys' fees) is present. So

we therefore turn to the law governing the Agreement: Delaware.

21 In its opening appeal brief, IBC explains that Massachusetts law also follows the "American Rule," but provides no argument as to why Massachusetts, and not Delaware, law should apply here. 22 American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures (2013), available at https://adr.org/sites/default/files/CommercialRules_Web_FINAL_2. pdf.

- 29 - While IBC is correct that under Delaware law the winning

party is "generally expected to pay its own attorney's fees and

costs," that expectation is subject to certain "limited equitable

exceptions," such as "bad faith." Montgomery Cellular Holding Co.

v. Dobler, 880 A.2d 206, 227 (Del. 2005).

Although there is no single, comprehensive definition of 'bad faith' that will justify a fee-shifting award, Delaware courts have previously awarded attorneys' fees where (for example) 'parties have unnecessarily prolonged or delayed litigation, falsified records or knowingly asserted frivolous claims.' The bad faith exception is applied in 'extraordinary circumstances' as a tool to deter abusive litigation and to protect the integrity of the judicial process.

Id. Delaware law "departs from the American Rule and may shift

fees where the 'underlying (prelitigation) conduct of the losing

party was so egregious as to justify an award of attorneys' fees

as an element of damages,'" Auriga Capital Corp. v. Gatz

Properties, 40 A.3d 839, 881 n.183 (Del. Ch. 2012) (listing

numerous instances where Delaware courts have awarded attorneys'

fees), aff'd, 59 A.3d 1206 (Del. 2012), and IBC points to no

authority — nor could we find any — that Delaware law forbids

arbitrators from awarding attorneys' fees. See, e.g., Roncone v.

Phoenix Payment Sys., Inc., No. C.A. No. 8895-VCN, 2014 WL 6735210,

at *5 (Del. Ch. Nov. 26, 2014) (finding that "the arbitrator acted

within his authority also to award Roncone his attorneys' fees and

costs").

- 30 - Here, the arbitrator's finding of IBC's "bad faith"

cleared the way for an award of attorneys' fees. The arbitrator

stated in his Award that "[IBC's] admission of 'ill-will' towards

[Hoolahan], coupled with the disparity of treatment afforded to

[Hoolahan] when compared to the treatment afforded to Mr.

Mattheson, in my view amounts to a per-se [sic] violation and

leaves no doubt that [IBC] acted in bad faith and deliberately

denied [Hoolahan] the benefit of the bargain [he] was entitled to

under the Agreement." (Emphasis added.) He therefore found and

noted in the Award that "due to the willful nature of the contract

breaches and the subsequent admission of same by [IBC],

[Hoolahan]'s request for attorney's fees, costs and expenses are

also granted . . . ." That the arbitrator decided to take the

evidence in front of him that amounted to the existence of "ill-

will" to impute "bad faith" onto IBC, and as a result award

attorneys' fees, cannot be reasonably viewed as in excess of his

power. See, e.g., Prudential-Bache Sec., Inc. v. Tanner, 72 F.3d

234, 242–43 (1st Cir. 1995) (declining to find that the arbitrator

had exceeded his authority under section 10(a)(4) in awarding

attorneys' fees where Puerto Rico law permitted the award of such

fees "against a party which raises and obstinately pursues

meritless claims or otherwise vexatiously engages in unnecessary

litigation," and "the [arbitration] panel had evidence in front of

it as to obstinate or frivolous conduct"); see also Asociación de

- 31 - Empleados del E.L.A., 559 F.3d at 47. IBC has therefore failed to

show that the arbitrator violated 9 U.S.C. § 10(a)(4) when he

awarded Hoolahan attorneys' fees in accordance with Delaware law.

2. IBC's Obligation to Help Hoolahan Resell

Next, IBC argues that the arbitrator exceeded his

authority by misinterpreting the Agreement when he found that

article 13.323 governed the obligation that IBC had breached,

rather than the more specific article 2.3(e)(ii),24 which disclaims

any obligations IBC has to help Hoolahan resell his shares. IBC

contends that under basic principles of contract interpretation,

specific language in a contract controls over general language

where they conflict, the arbitrator should not have disregarded

article 2.3(e)(ii), and, in doing so, the arbitrator's

interpretation ran afoul of the contract's plain language.

Now remember, "[a]s long as the arbitrator is even

arguably construing or applying the contract and acting within the

scope of his authority, that a court is convinced he committed

23Article 13.3: "From and after the date of this Agreement, as may be necessary, the Parties shall execute, acknowledge and deliver such other instruments and take such other action as may be reasonably necessary to carry out their obligations under this Agreement." 24 Article 2.3(e)(ii): "IBC has no obligation under any circumstances to register the IBC shares or to take any other actions to facilitate or permit any resale or transfer thereof in the United States or otherwise by or to a U.S. Person and will certify same to the Vendors."

- 32 - serious error does not suffice to overturn his decision." United

Paperworkers Int'l Union, 484 U.S. at 38. A showing that the

arbitrator made a serious error is not sufficient. Oxford Health

Plans LLC v. Sutter, 569 U.S. 564, 569 (2013) (citing Stolt-Nielsen

S.A., 559 U.S. at 674-675). Rather, a court may overturn a

decision "only if 'the arbitrator acts outside the scope of his

contractually delegated authority' — issuing an award that 'simply

reflects his own notions of economic justice' rather than 'drawing

its essence from the contract.'" Id. (quoting Eastern Associated

Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 62

(2000)(cleaned up)).

Even if IBC is right that the arbitrator did not

correctly interpret the Agreement, he nonetheless interpreted it.

And that is enough. Compare Oxford Health, 569 U.S. at 569–70

(explaining that arbitrators do not exceed their authority as long

as they interpret, even arguably, relevant contractual

provisions), with Stolt-Nielsen S.A., 559 U.S. at 674-75 (finding

panel exceeded authority in concluding agreements allowed for

class arbitration where the clauses were silent on the issue and

the panel failed to examine whether the FAA or state law provided

a default rule). The specific article that IBC seeks to advance

and argues that the arbitrator ignored (article 2.3(e)(ii)) was

raised multiple times in front of the arbitrator during the

arbitration hearing, so much so that the article was even read

- 33 - aloud in full by a live witness. And the Award itself cites to

articles from the Agreement. Taken together, this is more than

enough for this court to conclude that the arbitrator construed

the Agreement, and as such did not exceed his authority when he

concluded that IBC had breached the Agreement. See, e.g., First

State Ins. Co. v. Nat'l Cas. Co., 781 F.3d at 11 (finding the

arbitrator to have construed the underlying contracts where the

text of the arbitral award referred to the contracts themselves);

Cytyc Corp., 439 F.3d at 33 (affirming the arbitrators' decision

where the "panel's decision . . . ma[de] manifest that the

arbitrators pondered the pertinent language of the Agreement and

construed that language in accordance with the parties'

discernible intent" (internal citations omitted)).

IBC has therefore also failed to show that the arbitrator

exceeded his authority under 9 U.S.C. § 10(a)(4) when he found

article 13.3, not article 2.3(e)(ii), to be breached.

ii. Manifest Disregard of the Law

In addition to its statutory arguments, IBC also claims

that the arbitrator acted with "manifest disregard of the law"

when he failed to offset Hoolahan's Award with 1) the proceeds

from Hoolahan's 2013 sale of 250,000 IBC Shares25 and 2) the value

25 It appears that IBC is raising this specific miscalculation for the first time on appeal. But it is of no matter here, since we find that the argument regarding this miscalculation is already waived for other reasons. Stay tuned.

- 34 - of the shares Hoolahan retained at the time of the Award.

According to IBC, this miscomputation gave Hoolahan an

impermissible "windfall" in "duplicative damages," and was made in

"manifest disregard of the law." Hoolahan responds that IBC's

challenges to the Award are waived because IBC never raised the

issue of a "windfall" in any submissions to the arbitrator before

the Award. Bypassing Hoolahan's waiver argument, IBC again cannot

succeed on the merits.26

Assuming its ongoing viability, the common law doctrine

of "manifest disregard of the law" "allows courts a very limited

power to review arbitration awards outside of section 10 [of the

FAA]." Dialysis Access Ctr., 932 F.3d at 12-13 (citing Mt. Valley

Prop., Inc., 863 F.3d at 94). Under this doctrine, a court may

vacate an award that is "(1) unfounded in reason and fact;

(2) based on reasoning so palpably faulty that no judge, or group

26 Because we find that IBC has waived its arguments as to the first two grounds under the manifest disregard of the law doctrine for reasons other than its failure to raise them before the Award issued, and because we can address the third ground on the merits to affirm the Award, we need not decide whether IBC waived its "windfall" argument by not raising it in front of the arbitrator until after the Award issued. See United States v. Parker, 872 F.3d 1, 14 (1st Cir. 2017) ("Because we can uphold the judge's willful-blindness charge on the merits, we need not decide whether Parker waived the issue because of inadequate briefing."), cert. denied, 138 S. Ct. 936 (2018); United States v. Parrilla Bonilla, 626 F.2d 177, 179 (1st Cir. 1980) ("We need not decide whether appellants' not having raised certain issues until after trial constituted waiver since we resolve the issues on the merits adversely to appellants.").

- 35 - of judges, ever could conceivably have made such a ruling; or

(3) mistakenly based on a crucial assumption that is concededly a

non-fact." Mt. Valley Prop., Inc., 863 F.3d at 95 (quoting

McCarthy v. Citigroup Glob. Mkts., Inc., 463 F.3d 87, 91 (1st Cir.

2006)).

IBC dresses its miscomputation grievance as three

separate grounds for vacatur under this doctrine: 1) the

miscomputation makes the Award "unfounded in reason and fact"; 2)

no other judge would have made such a miscomputation; and 3) the

miscomputation results from reliance on a "non-fact" — the

"assumption that Hoolahan no longer owned any shares" at the time

As to grounds one and two, IBC cites no case law to

support its contentions that the Award is "unfounded in reason and

fact" and that "no judge" would have made the purported

miscomputation. For ground one, IBC criticizes the arbitrator's

math for not discounting the Award by the value of the shares

Hoolahan still retained at the time of the Award, and for assuming

that Hoolahan would have been able to sell all his shares when

Mattheson had, rather than the fraction of total shares that

Mattheson actually sold in 2011. And for ground two, IBC simply

states that "no judge would [have made] the above-described

computational error in awarding damages," and the decision was "so

mangled by faulty reasoning that it awards a double-recovery."

- 36 - But IBC offers no more in the way of argument to persuade us that

either is a ground for vacating the Award. "Ultimately, not having

done the legwork we require to develop this position, [IBC] has

waived those challenges." Dialysis Access Ctr., 932 F.3d at 12

(citing Rodríguez v. Municipality of San Juan, 659 F.3d 168, 176

(1st Cir. 2011); Holloway v. United States, 845 F.3d 487, 491 n.4

(1st Cir. 2017); Zannino, 895 F.2d at 17 (stating that litigants

must develop their own arguments rather than "leaving the court to

do counsel's work")).

As for ground three, IBC relies on only one case in

support of its "non-fact" argument, that the arbitrator

"inaccurately assumed that Hoolahan no longer owned any shares [at

the time of the Award], when in fact he still held 96,721." In

Electronics Corp. of America v. Int'l Union of Elec., Radio and

Mach. Workers, AFL-CIO Local 272, the sole basis of the

arbitrator's award was premised on a mistaken belief (underscored

by claimant's poor presentation of the facts) that an employee had

not been suspended prior to termination and had therefore been

denied "industrial due process" under a progressive discipline

system. 492 F.2d 1255 (1st Cir. 1974). On appeal this court found

that the employee's prior suspension had been presented to the

arbitrator (albeit not so clearly), and so vacated the award. Id.

Electronics Corp. is inapposite here because there exists no

equivalent "non-fact." There is no indication from the record

- 37 - that the arbitrator ever assumed that Hoolahan held no shares at

the time of the Award. Rather, the record shows that the

arbitrator was made aware multiple times during the hearing and

through written submissions that Hoolahan still retained a certain

number of shares at the time of the Award. IBC even concedes as

much in its opening brief.27 Just because the arbitrator did not

specifically call out the IBC Shares still held by Hoolahan in the

Award does not mean that the arbitrator did not consider that

evidence or "erred in his view of the facts." Electronics Corp.,

492 F.2d at 1257. The arbitrator was not required to tell us any

more about how he accounted for the shares Hoolahan still retained.

Cytyc Corp., 439 F.3d at 34 ("Arbitrators are not required to

provide particularized reasons for their decisions. It follows

that an arbitrator's failure to comment upon a specific piece of

evidence cannot support an inference that he failed to consider

it." (internal citations omitted)). We therefore find that IBC

has not made a showing that the arbitrator acted in "manifest

disregard of the law" when deciding the Award.

27"[I]t was clear from the arbitration record that Mr. Hoolahan had not sold all of his shares. There was testimony and argument throughout the arbitration hearing that Mr. Hoolahan sold only 250,000 of his 1,217,212 post-split shares, and this was even one of the stipulated facts at the hearing. . . . There were neither any stipulated facts nor any testimony about any other sales by Mr. Hoolahan."

- 38 - III. CONCLUSION

All told, IBC's "argument reduces to a frontal attack on

the merits of the arbitral award." Id. at 35. But "[s]uch an

attack is easily repulsed. It was the province of the arbitrator[]

to scrutinize the language of the Agreement, weigh the conflicting

evidence of the parties' intentions, and determine the dimensions

of" the Award. Id. (citing Major League Baseball Players Ass'n v.

Garvey, 532 U.S. 504, 509–10 (2001)). IBC's request to disturb

the Award — either with a vacatur or a remand — faced a steep slope

to begin with, and it has provided no argument strong enough to

get it to the summit. And so, we affirm.

Costs to Appellee.

- 39 -