22-734-cv Kellner v. Amazon.com
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of February, two thousand twenty-three.
PRESENT: GUIDO CALABRESI, GERARD E. LYNCH, BETH ROBINSON, Circuit Judges. _____________________________________
Jacob Kellner,
Plaintiff-Appellant,
v. 22-734
Amazon, Amazon Officers, Directors and Shareholders,
Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Jacob Kellner, pro se, Toms River, NJ.
FOR DEFENDANTS-APPELLEES: Geoffrey S. Brounell, Mohammad B. Pathan, Davis Wright Tremaine LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Donnelly, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Jacob Kellner, proceeding without counsel, petitioned the district
court to vacate or modify the arbitration award in his dispute with Amazon and
its officers, directors, and shareholders (collectively, “Amazon”), in which he
asserted breach of contract and antitrust claims premised on Amazon’s
termination of his third-party seller account on its platforms. Amazon cross-
petitioned to confirm the award. Adopting a magistrate judge’s report and
recommendation, the district court denied Kellner’s petition and granted
Amazon’s cross-petition. Kellner appeals. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the issues on appeal.
When reviewing a district court’s decision to confirm or vacate an arbitration award, we review questions of law without deference and findings of
fact for clear error. Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,
729 F.3d 99, 103 (2d Cir. 2013). “The role of a district court in reviewing an
arbitration award is narrowly limited and arbitration panel determinations are
generally accorded great deference under the Federal Arbitration Act.” Id. 1
The Federal Arbitration Act provides four statutory grounds for vacatur,
including, as relevant here, “where there was evident partiality” in the arbitrator,
where the arbitrator was “guilty of misconduct . . . in refusing to hear evidence
pertinent and material to the controversy,” and where the arbitrator “exceeded
[her] powers, or so imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(2)–(4).
In addition, our circuit has also recognized that a court may, in “exceedingly rare
instances,” vacate an award if it exhibits a “manifest disregard of the law.”
Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004). 2
1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.
2 Kellner has forfeited any argument regarding modification of the arbitration award by failing to raise the issue in either his objections to the magistrate judge’s report and recommendation or his appellate brief. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.”); LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (uncounseled litigant abandons issues not addressed in appellate brief).
3 A. The Antitrust Claim
Kellner argues that the arbitrator exceeded her powers by deciding his
antitrust claims, which he now maintains were in fact within the exclusive
jurisdiction of the federal court, despite having presented them to her for
arbitration. We have “consistently accorded the narrowest of readings to the
FAA’s authorization to vacate awards [for exceeding an arbitrator’s powers]
pursuant to § 10(a)(4).” T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d
329, 342 (2d Cir. 2010). Kellner’s argument that all antitrust claims are non-
arbitrable is foreclosed by decisions of this and the Supreme Court. See Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 616, 628–40 (1985)
(holding that Sherman Act claims “encompassed within a valid arbitration clause
in an [international] agreement” were arbitrable); JLM Indus. Inc. v. Stolt-Nielsen
S.A., 387 F.3d 163, 179 (2d Cir. 2004) (noting that, after Mitsubishi, plaintiff could
not “argue that Sherman Act claims per se cannot appropriately be resolved by
arbitration panels”). Kellner identifies no reason why his particular antitrust
claims, which he expressly put to the arbitrator, are not arbitrable. Given his
failure to reckon with our caselaw or explain why an antitrust claim of the sort he
raises here is not arbitrable, we cannot conclude that the arbitrator exceeded her
4 authority in addressing the antitrust claims he raised.
B. Discovery
The rules governing the parties’ arbitration authorized the arbitrator to
“require the parties, in response to reasonable document request, to make
available to the other party documents” in their control that were “not otherwise
readily available” to the party seeking the documents, “reasonably believed . . . to
be relevant and material to the outcome of the disputed issues.” AAA
Commercial Arbitration Rules and Mediation Procedures, Rule 22(b)(iii) (2013).
Kellner asserts that the arbitrator nevertheless wrongly denied his discovery
requests claiming that she lacked authority to compel discovery.
The record reflects that the arbitrator explicitly acknowledged her authority
to compel discovery under the AAA rules. And she acted within her authority in
declining to do so based on her findings that Kellner’s discovery requests were
either unreasonable, beyond the scope of the litigation, or protected by
confidentiality. The arbitrator’s decision to exercise that authority in a manner
different than requested by Kellner is not grounds for vacatur. Kellner attempts
to frame this adverse ruling as grounds for vacatur under sections 10(a)(2) and
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22-734-cv Kellner v. Amazon.com
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of February, two thousand twenty-three.
PRESENT: GUIDO CALABRESI, GERARD E. LYNCH, BETH ROBINSON, Circuit Judges. _____________________________________
Jacob Kellner,
Plaintiff-Appellant,
v. 22-734
Amazon, Amazon Officers, Directors and Shareholders,
Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Jacob Kellner, pro se, Toms River, NJ.
FOR DEFENDANTS-APPELLEES: Geoffrey S. Brounell, Mohammad B. Pathan, Davis Wright Tremaine LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Donnelly, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Jacob Kellner, proceeding without counsel, petitioned the district
court to vacate or modify the arbitration award in his dispute with Amazon and
its officers, directors, and shareholders (collectively, “Amazon”), in which he
asserted breach of contract and antitrust claims premised on Amazon’s
termination of his third-party seller account on its platforms. Amazon cross-
petitioned to confirm the award. Adopting a magistrate judge’s report and
recommendation, the district court denied Kellner’s petition and granted
Amazon’s cross-petition. Kellner appeals. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the issues on appeal.
When reviewing a district court’s decision to confirm or vacate an arbitration award, we review questions of law without deference and findings of
fact for clear error. Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,
729 F.3d 99, 103 (2d Cir. 2013). “The role of a district court in reviewing an
arbitration award is narrowly limited and arbitration panel determinations are
generally accorded great deference under the Federal Arbitration Act.” Id. 1
The Federal Arbitration Act provides four statutory grounds for vacatur,
including, as relevant here, “where there was evident partiality” in the arbitrator,
where the arbitrator was “guilty of misconduct . . . in refusing to hear evidence
pertinent and material to the controversy,” and where the arbitrator “exceeded
[her] powers, or so imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(2)–(4).
In addition, our circuit has also recognized that a court may, in “exceedingly rare
instances,” vacate an award if it exhibits a “manifest disregard of the law.”
Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004). 2
1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.
2 Kellner has forfeited any argument regarding modification of the arbitration award by failing to raise the issue in either his objections to the magistrate judge’s report and recommendation or his appellate brief. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.”); LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (uncounseled litigant abandons issues not addressed in appellate brief).
3 A. The Antitrust Claim
Kellner argues that the arbitrator exceeded her powers by deciding his
antitrust claims, which he now maintains were in fact within the exclusive
jurisdiction of the federal court, despite having presented them to her for
arbitration. We have “consistently accorded the narrowest of readings to the
FAA’s authorization to vacate awards [for exceeding an arbitrator’s powers]
pursuant to § 10(a)(4).” T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d
329, 342 (2d Cir. 2010). Kellner’s argument that all antitrust claims are non-
arbitrable is foreclosed by decisions of this and the Supreme Court. See Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 616, 628–40 (1985)
(holding that Sherman Act claims “encompassed within a valid arbitration clause
in an [international] agreement” were arbitrable); JLM Indus. Inc. v. Stolt-Nielsen
S.A., 387 F.3d 163, 179 (2d Cir. 2004) (noting that, after Mitsubishi, plaintiff could
not “argue that Sherman Act claims per se cannot appropriately be resolved by
arbitration panels”). Kellner identifies no reason why his particular antitrust
claims, which he expressly put to the arbitrator, are not arbitrable. Given his
failure to reckon with our caselaw or explain why an antitrust claim of the sort he
raises here is not arbitrable, we cannot conclude that the arbitrator exceeded her
4 authority in addressing the antitrust claims he raised.
B. Discovery
The rules governing the parties’ arbitration authorized the arbitrator to
“require the parties, in response to reasonable document request, to make
available to the other party documents” in their control that were “not otherwise
readily available” to the party seeking the documents, “reasonably believed . . . to
be relevant and material to the outcome of the disputed issues.” AAA
Commercial Arbitration Rules and Mediation Procedures, Rule 22(b)(iii) (2013).
Kellner asserts that the arbitrator nevertheless wrongly denied his discovery
requests claiming that she lacked authority to compel discovery.
The record reflects that the arbitrator explicitly acknowledged her authority
to compel discovery under the AAA rules. And she acted within her authority in
declining to do so based on her findings that Kellner’s discovery requests were
either unreasonable, beyond the scope of the litigation, or protected by
confidentiality. The arbitrator’s decision to exercise that authority in a manner
different than requested by Kellner is not grounds for vacatur. Kellner attempts
to frame this adverse ruling as grounds for vacatur under sections 10(a)(2) and
10(a)(3), but neither argument is availing.
5 “Evident partiality may be found only where a reasonable person would
have to conclude that an arbitrator was partial to one party to the arbitration.”
Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 64
(2d Cir. 2012). The only sign of “partiality” that Kellner offers is the arbitrator’s
decision to sustain Amazon’s objections, but “adverse rulings, without more, will
rarely suffice to provide a reasonable basis for questioning . . . impartiality.”
Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009) (per curiam).
Nor can the discovery ruling be viewed as a refusal to hear pertinent and
material evidence, which is grounds for vacatur “only where there is a denial of
‘fundamental fairness.’” Kolel Beth Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104
(quoting Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997)). Kellner
has not established that the arbitrator’s determination amounted to a denial of
fundamental fairness. The arbitrator held a hearing in which both parties
presented their arguments regarding Kellner’s remaining three discovery
requests, and she ultimately sustained Amazon’s objections, providing a reasoned
basis for that decision. We therefore find no reason to vacate the arbitrator’s
discovery rulings under section 10(a).
6 C. Merits of Contract Determination
To the extent Kellner also argues that the arbitrator acted with manifest
disregard of the law by ruling in Amazon’s favor on his contract claim, we
disagree. A litigant seeking to vacate an arbitration award on these grounds
“bears a heavy burden” to show “egregious impropriety on the part of the
arbitrator,” and that there is not even a “barely colorable justification for the
outcome reached.” T.Co Metals, LLC, 592 F.3d at 339. This requires a showing
that the arbitrator “knew of a governing legal principle” that was “well-defined,
explicit, and clearly applicable to the case,” yet “refused to apply [the principle] or
ignored it altogether.” Porzig v. Dresdner, Kleinwort, Benson, North America LLC,
497 F.3d133, 139 (2d Cir. 2007). Kellner cannot make that showing because, at
most, he argues the arbitrator misinterpreted the evidence, not that she knowingly
misapplied a legal principle. And there is more than a “barely colorable
justification” for the arbitrator’s reading of the contract, which by its plain
language authorized Amazon to terminate Kellner’s accounts at any time and for
any reason. T.Co Metals, LLC, 592 F.3d at 339. While the contract provided that
such termination would be accomplished by notice, Kellner does not point to any
language requiring the termination notice to take a particular form or be issued
7 prior to the termination, and Amazon presented evidence that it sent termination
notices (in addition to various prior notices related to suspensions and warnings
of policy violations). Moreover, that alleged misreading cannot be characterized
as a refusal to “hear” evidence, since it is undisputed that the arbitrator considered
the contract. 9 U.S.C. § 10(a)(3).
Kellner has not asserted any separate arguments in opposition to the
confirmation order, and an arbitration award should be confirmed where, as here,
there are no grounds for modification or vacatur. See 9 U.S.C. § 9.
We have considered all of Kellner’s arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court