Mid Atlantic Capital v. Bien

956 F.3d 1182

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 14, 2020
• Docket: 18-1195
• Status: Published

Opinion

FILED United States Court of Appeals Tenth Circuit

PUBLISH April 14, 2020 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

MID ATLANTIC CAPITAL CORPORATION,

Petitioner Cross Defendant - Appellant / Cross-Appellee,

v. Nos. 18-1195 and 18-1200

BEVERLY BIEN; DAVID H. WELLMAN,

Respondents Cross Claimants - Appellees / Cross-Appellants.

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-00122-RPM)

Andrew Stanton, Jones Day, Pittsburgh, Pennsylvania, (Derek C. Anderson, Winget, Spadafora & Schwartzberg, LLP, Boulder, Colorado, with him on the briefs), for Appellant / Cross-Appellee.

Richard Fosher, Oakes & Fosher, LLC, St. Louis, Missouri, for Appellees / Cross- Appellants.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

HOLMES, Circuit Judge. A married couple, Ms. Beverly Bien and Mr. David Wellman, invested

money with Mid Atlantic Capital Corporation (“Mid Atlantic”). Their

investments performed poorly. Stung by the losses, Ms. Bien and Mr. Wellman

initiated arbitration proceedings against Mid Atlantic. The arbitration panel

awarded Ms. Bien and Mr. Wellman damages, attorney’s fees, and arbitration

costs. The panel also ordered Ms. Bien and Mr. Wellman to reassign their

ownership interests in their investments to Mid Atlantic.

Mid Atlantic moved the federal district court to modify the arbitration

award to correct “an evident material miscalculation of figures.” 9 U.S.C.

§ 11(a). The district court denied the motion because the alleged error that Mid

Atlantic sought to remedy did not appear on the face of the arbitration award. In

the amended final judgment, in addition to ordering Mid Atlantic to pay Ms. Bien

and Mr. Wellman certain damages, the court ordered that prejudgment interest

would accrue on the damages portion of the award and that postjudgment interest

would accrue at the federal rate specified in 28 U.S.C. § 1961. Lastly, the court

ordered Ms. Bien and Mr. Wellman to reassign to Mid Atlantic their ownership

interests in their investments, including any distributions that they had received

since the arbitration award due to the investments.

Both parties appeal from the district court’s order. Mid Atlantic

specifically challenges the court’s denial of its motion to modify the arbitration

2 award. Ms. Bien and Mr. Wellman cross-appeal, challenging the court’s rulings

applying prejudgment interest to only the damages portion of the award and

ordering them to reassign any distributions that they had received since the

arbitration award due to their ownership interests in the investments. Exercising

jurisdiction under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(1)(D) and (a)(3), we

affirm the district court’s judgment in all respects.

I

Mid Atlantic is a brokerage firm registered with the Financial Industry

Regulatory Authority (“FINRA”). 1 Ms. Bien and Mr. Wellman opened several

brokerage accounts with Mid Atlantic. Through those accounts, Ms. Bien and Mr.

Wellman invested in two investment vehicles, Sonoma Ridge Partners and KBS

REIT [i.e., real estate investment trusts] (“KBS”). Ms. Bien and Mr. Wellman’s

contracts with Mid Atlantic each included an identically worded arbitration

1 FINRA is “a quasi-governmental agency responsible for overseeing the securities brokerage industry.” ACAP Fin., Inc. v. S.E.C., 783 F.3d 763, 765 (10th Cir. 2015). “FINRA is the successor to the National Association of Securities Dealers (‘NASD’)” and was formed in 2007 when NASD “consolidated with the regulatory arm of the New York Stock Exchange.” Fiero v. Fin. Indus. Regulatory Auth., Inc., 660 F.3d 569, 571 & n.1 (2d Cir. 2011); see Cory v. Allstate Ins., 583 F.3d 1240, 1242 n.1 (10th Cir. 2009) (explaining that NASD “changed its name” to FINRA in 2007). Some documents in the appellate record reference NASD instead of FINRA. For our purposes, the distinction between NASD and FINRA is one without a difference. See, e.g., Birkelbach v. S.E.C., 751 F.3d 472, 475 n.1 (7th Cir. 2014) (“[T]here is no meaningful distinction between the entities [FINRA and NASD]. . . .”). We thus read all record references to NASD as referring to FINRA.

3 clause. That clause obligated the parties to resolve all disputes through binding

arbitration conducted according to FINRA rules. See, e.g., Aplt.’s App., Vol. III,

at 715 (Brokerage Account Appl. of Ms. Bien, executed Feb. 12, 2007) (“All

controversies that may arise between you, [and] us . . . including, but not limited

to, controversies concerning . . . breach of this or any other agreement between

you and us . . . shall be determined by arbitration”).

A

After their investments in Sonoma Ridge Partners and KBS suffered heavy

losses, Ms. Bien and Mr. Wellman initiated arbitration proceedings against Mid

Atlantic. They alleged that Mid Atlantic had, among other things, sold them

unreasonably risky investments. To remedy the resulting harm, Ms. Bien and Mr.

Wellman sought damages, as well as attorney’s fees, costs, and interest.

The arbitration panel held a hearing. At the hearing, Ms. Bien and Mr.

Wellman’s expert offered the panel two ways to calculate the losses at issue. The

first option looked to Ms. Bien and Mr. Wellman’s “net out-of-pocket” losses.

Aplt.’s App., Vol. II, at 244 (Arbitration Hr’g Tr., dated Nov. 3, 2016). The

expert calculated Ms. Bien and Mr. Wellman’s net out-of-pocket losses as

$292,411. The second measure of damages looked to Ms. Bien and Mr.

Wellman’s “market-adjusted damages.” Id. at 250. The measure of those

damages is “the difference between the actual return on these investments and

4 what the return would have been if [Ms. Bien and Mr. Wellman’s] money had

been invested in a well-managed ‘benchmark’ account.” Id., Vol. V, at 1079

(Order, entered Mar. 23, 2018); see also id., Vol. II, at 251 (the expert observing

that “market-adjusted damages” is “[t]he difference” between what Ms. Bien and

Mr. Wellman would have received if they “had been invested in a diversified

portfolio” and what they actually received by “investing” in the riskier

investments at issue). The expert calculated Ms. Bien and Mr. Wellman’s market-

adjusted damages as between $484,684 and $618,049. Mid Atlantic did not

present any expert testimony on damages.

During the hearing’s closing arguments, Ms. Bien and Mr. Wellman read

into the record a written final prayer for relief. In it, they requested only market-

adjusted damages. Indeed, they asserted that compensating them for their net out-

of-pocket losses would be “inconsistent with the case law” and would not make

them whole. Id., Vol. II, at 434 n.1 (Final Prayer for Relief, dated Mar. 13,

2017). And so Ms. Bien and Mr. Wellman prayed for market-adjusted damages.

Together, they also requested $118,560 in attorney’s fees, $26,812.82 in costs,

interest on the damages at 8% per year, and punitive damages.

The arbitration panel ruled in substantial part in favor of Ms. Bien and Mr.

Wellman. It ordered Mid Atlantic to pay them two forms of damages: (1) initial-

5 investment-loss damages and (2) compensatory damages. The panel’s damages

award looked like this:

Damages Award Ms. Bien Mr. Wellman Both Total Initial Investment Loss $240,321 N/A $52,090 $292,411 Compensatory Damages $437,286 $47,397 N/A $484,683 Total $677,607 $47,397 $52,090 $777,094

In addition, the arbitration panel ordered Mid Atlantic to pay interest at 8% per

year on each form of damages. That interest would accrue from the date Ms. Bien

and Mr. Wellman initiated arbitration proceedings until the damages were “paid

in full.” Id., Vol. I, at 28 (Arbitration Award, dated Dec. 12, 2016). The award

also called for Mid Atlantic to pay $118,560 in attorney’s fees, $26,812.82 in

costs, and all arbitration fees. The panel declined, however, to award any other

remedies, such as punitive damages. And it did order Ms. Bien and Mr. Wellman

to “reassign ownership of all Sonoma Ridge Partners and KBS REIT investments

to [Mid Atlantic].” Id.

B

Mid Atlantic moved the district court to modify the arbitration award. 2 It

argued, among other things, that the arbitration panel had given Ms. Bien and Mr.

Wellman a double recovery. According to Mid Atlantic, the panel’s $292,411

2 Mid Atlantic’s motion also asked the district court to vacate the award. The court denied this request, which is not at issue on appeal.

6 award in initial-investment-loss damages corresponded with Ms. Bien and Mr.

Wellman’s expert’s testimony that their net out-of-pocket losses were $292,411.

And the panel’s $484,683 award in compensatory damages almost exactly

matched the $484,684 in market-adjusted damages that the expert had at one point

said Ms. Bien and Mr. Wellman incurred. Yet, that expert had presented net out-

of-pocket damages and market-adjusted damages as alternative measures of their

losses, and Ms. Bien and Mr. Wellman had asked for only market-adjusted

damages in their final prayer for relief. Thus, by effectively awarding Ms. Bien

and Mr. Wellman both net out-of-pocket damages and market-adjusted damages,

the panel allegedly gave them a double recovery. To correct this purported

double recovery, Mid Atlantic asked the district court to modify the arbitration

award.

In response, Ms. Bien and Mr. Wellman moved the district court to confirm

the award. As they saw it, the district court could modify the arbitration award to

correct the alleged double recovery only if there was “an evident material

miscalculation of figures” on the face of the award. Id., Vol. III, at 517 (Br. in

Supp. of Mot. to Confirm Award) (quoting 9 U.S.C. § 11(a)). And the alleged

double recovery here appeared only when one delved into the arbitration record.

Thus, they argued that the district court lacked authority to modify the award.

7 The district court sided with Ms. Bien and Mr. Wellman. Like Mid

Atlantic, the court thought the arbitration award was “disturbing.” Id., Vol. V, at

1084. It agreed that “what the panel called ‘initial investment loss[es]’” and

“compensatory damages” corresponded with what Ms. Bien and Mr. Wellman had

called, respectively, “net out-of-pocket losses” and “market-adjusted damages.”

Id. So the court found that by awarding “both net out-of-pocket losses . . . and

market-adjusted damages,” the panel effectively gave Ms. Bien and Mr. Wellman

a double recovery. Id. But the district court read 9 U.S.C. § 11(a) as authorizing

it to correct “an evident material miscalculation of figures” only if the

miscalculation appeared “on the face of the award.” Id. at 1085. Because the

alleged double counting at issue appeared only upon looking to the arbitration

record, the district court concluded that it lacked authority to modify the award.

For that reason, it denied Mid Atlantic’s motion to modify and granted Ms. Bien

and Mr. Wellman’s motion to confirm the award.

After receiving proposed judgments from the parties, in April 2018, the

district court entered an amended final judgment. That judgment awarded Ms.

Bien and Mr. Wellman damages, attorney’s fees, and costs in the same amounts

that the arbitration panel had specified. The court likewise confirmed the

arbitration panel’s award of 8% yearly prejudgment interest on the damages—but

with no interest on the attorney’s fees or costs. As for postjudgment interest, the

8 court applied the 2.1% federal rate listed in 28 U.S.C. § 1961. Lastly, the district

court ordered Ms. Bien and Mr. Wellman to reassign to Mid Atlantic their

ownership interests in their investments in Sonoma Ridge Partners and KBS,

including any associated distributions that they had received since the arbitration

award (as well as interest thereon).

C

Both parties filed timely appeals from the amended final judgment. Mid

Atlantic’s appeal presents one question for our review: Did the district court err

by holding that it lacked authority to modify the arbitration award to correct an

alleged evident material miscalculation of figures because that miscalculation

does not appear on the face of the arbitration award? In their cross-appeal, Ms.

Bien and Mr. Wellman raise three questions. Did the district court err by (1)

granting post-award interest on damages, but not on attorney’s fees and other

costs; (2) awarding postjudgment interest at the federal rate; and (3) ordering Ms.

Bien and Mr. Wellman to reassign to Mid Atlantic any post-award distributions

from their ownership interests in Sonoma Ridge Partners and KBS (as well as

interest thereon).

II

In answering these questions, we “review the district court’s factual

findings for clear error and its legal determinations de novo.” Burlington N. &

9 Santa Fe Ry. Co. v. Pub. Serv. Co. of Okla., 636 F.3d 562, 567 (10th Cir. 2010).

We “must give extreme deference” to the arbitration panel’s conclusions because

our “review of arbitral awards is among the narrowest known to law.” THI of

N.M. at Vida Encantada, LLC v. Lovato, 864 F.3d 1080, 1083 (10th Cir. 2017)

(emphasis omitted) (quoting Brown v. Coleman Co., 220 F.3d 1180, 1182 (10th

Cir. 2000)). Given this limited review, we should “exercise ‘great caution’ when

a party asks for an arbitration award to be set aside” or modified. Id. (quoting

Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1147 (10th Cir. 1982). Indeed,

“[o]nce an arbitration award is entered, the finality of arbitration weighs heavily

in its favor and cannot be upset except under exceptional circumstances.”

Burlington, 636 F.3d at 567 (quoting Ormsbee, 668 F.2d at 1146–47).

More specifically, the party seeking vacatur or modification bears the

burden of establishing a ground for relief under either 9 U.S.C. § 10 or § 11—that

is, § 10 or § 11 of the Federal Arbitration Act (“FAA”). 3 See Frazier v.

3 In addition to the reasons for vacatur and modification listed in §§ 10 and 11, this circuit has recognized “a handful of judicially created reasons.” Sheldon v. Vermonty, 269 F.3d 1202, 1206 (10th Cir. 2001) (quoting Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997)). But the Supreme Court cast doubt on the vitality of those judicially created reasons in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008); see id. at 584 (“We now hold that §§ 10 and 11 respectively provide the FAA’s exclusive grounds for expedited vacatur and modification.”); see also Stolt-Nielson S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010) (“We do not decide whether ‘manifest disregard’ survives our decision in Hall Street . . . as an independent ground for review or as a judicial gloss on the enumerated (continued...)

10 CitiFinancial Corp., LLC, 604 F.3d 1313, 1324 (11th Cir. 2010); Apex Plumbing

Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 194 (4th Cir. 1998). If the party

cannot carry this burden, “[i]t [will] not [be] enough . . . to show that the

[arbitration] panel committed an error—or even a serious error.” Stolt-Nielsen,

559 U.S. at 671; see id. at 696 (Ginsburg, J., dissenting) (noting that we “may not

disturb the arbitrators’ judgment, even if convinced that ‘serious error’ infected

the panel’s award” (quoting United Paperworkers Int’l Union v. Misco, Inc., 484

U.S. 29, 38 (1987))); accord Oxford Health Plans, LLC v. Sutter, 569 U.S. 564,

569 (2013); cf. Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504,

511 n.2 (2001) (per curiam) (noting that the arbitrator’s “decision hardly qualifies

as serious error, let alone irrational or inexplicable error” and “any such error

would not justify the actions taken by the [circuit] court [in rejecting the

arbitrator’s findings]”).

3 (...continued) grounds for vacatur set forth at 9 U.S.C. § 10.”); DMA Int’l, Inc. v. Qwest Commc’ns Int’l, Inc., 585 F.3d 1341, 1344 n.2 (10th Cir. 2009) (declining to resolve the “interesting issue” of whether the judicially created reasons for vacatur and modification survived Hall Street). Because only the first part of § 11(a) is at issue here, we need not and thus do not opine on the continuing vitality of the judicially created reasons for vacatur or modification. See Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th Cir. 2010) (explaining that we answer “only the questions we must, not those we can”).

11 III

Guided by those standards, we turn first to the question Mid Atlantic raises

in its appeal. That question has two parts. First, does 9 U.S.C. § 11(a) permit

courts to look beyond the face of the arbitration award when deciding whether to

modify an award to correct an alleged evident material miscalculation of figures?

And second, if not, does the face of the arbitration award here contain an evident

material miscalculation of figures? As explained below, we answer each question

in the negative.

Section 11(a) authorizes courts to modify an arbitration award if it contains

“an evident material miscalculation of figures or an evident material mistake in

the description of any person, thing, or property referred to in the award.” 9

U.S.C. § 11(a). We are concerned with only the first half of § 11(a)—the

“evident material miscalculation of figures” portion. 4 The district court read that

4 Section 11 reads in full:

In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration— (a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award. (b) Where the arbitrators have awarded upon a matter not (continued...)

12 phrase as allowing it to correct only those miscalculations that appear on the face

of the award. Mid Atlantic argues that the district court erred in interpreting the

text of § 11(a) to embody such a face-of-the-award limitation.

Whether § 11(a) permits courts to go beyond the face of the arbitration

award in looking for an evident material miscalculation of figures is a question of

first impression in this circuit. We answer that question in the negative: that is,

we conclude that § 11(a) embodies a face-of-the-award limitation. In reaching

that conclusion, first and foremost, we draw inferences from the text and context

of the FAA. Our independent reading of this text and context is reinforced by our

recognition of the narrow and deferential standard of review applicable in the

arbitration context. We close our analysis of this matter by recognizing,

moreover, that the persuasive authority of our sister circuits has reached a similar

conclusion.

4 (...continued) submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted. (c) Where the award is imperfect in matter of form not affecting the merits of the controversy. The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties. 9 U.S.C. §11. Because the parties do not argue that the other authorizations in subsections (a), (b), or (c) apply, we do not consider them as separate bases of authority to modify the award. Unless otherwise indicated, when referring to § 11(a), we mean only the “evident material miscalculation of figures” language.

13 1

We must interpret § 11(a) as written. See, e.g., Henry Schein, Inc. v.

Archer and White Sales, Inc., --- U.S. ----, 139 S. Ct. 524, 529 (2019). That

endeavor entails giving words their plain meaning when “read in their context and

with a view to their place in the overall statutory scheme.” Home Depot U.S.A.,

Inc. v. Jackson, --- U.S. ----, 139 S. Ct. 1743, 1748 (2019) (quoting Davis v.

Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989)); see Antonin Scalia &

Bryan A. Garner, R EADING L AW : T HE I NTERPRETATION OF L EGAL T EXTS 56–58

(2012) (discussing the “Supremacy-of-Text Principle”). Doing so, we conclude

that § 11(a) embodies a face-of-the-award limitation.

Let’s start with § 11(a)’s plain meaning. See Jones v. Comm’r, 560 F.3d

1196, 1200 (10th Cir. 2009). That section says, in relevant part, that a court may

modify an award if it contains “an evident material miscalculation of figures.” 9

U.S.C. § 11(a). In ordinarily English, a “miscalculation of figures” refers to

mathematical, not legal, errors. See Calculate, N EW O XFORD A MERICAN

D ICTIONARY 242 (2d ed. 2005) (“Determine (the amount or number of something)

mathematically.”); Figure, id. at 626 (defining “figures” as “arithmetical

calculations”). Likewise, “material” in this context takes its ordinary meaning of

“important; essential; relevant.” Material, id. at 1045. The word “evident,” too,

14 takes its ordinary meaning of “plain or obvious.” Evident, id. at 585. 5 The

parties do not appear to dispute the ordinary meaning of these terms. See, e.g.,

Mid Atlantic’s Opening Br. at 19–21; Ms. Bien & Mr. Wellman’s Resp. &

Principal Br. at 17. Putting these definitions together, we read § 11(a) to allow

courts to correct obvious, significant mathematical errors.

But even with these dictionary definitions, the meaning of

§ 11(a)—particularly the word “evident”—is not clear. Must a miscalculation be

obvious on the face of the award or must it be obvious after one looks to the

arbitration record? Devoid of context, the text arguably could support either

possibility. Fealty to text, however, is more than blind adherence to dictionary

definitions; we must consider context. See Jackson, 139 S. Ct. at 1748 (“It is a

fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory

5 Other established dictionaries have similar definitions. For example, consider the American Heritage Dictionary. See, e.g., Calculate, T HE A MERICAN H ERITAGE D ICTIONARY 271 (3d ed. 1992) (“To perform a mathematical process; figure[.]”); Figures, id. at 679 (defining the term as “[m]athematical calculations” or “[a]n amount represented in numbers”); Evident, id. at 636 (“Easily seen or understood; obvious.”); Material, id. at 1109 (“Being both relevant and consequential; crucial[.]”). Or, alternatively, examine Webster’s Third New International Dictionary. See, e.g., Calculate, WEBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 315 (2002) (defining the term as “to ascertain or determine by mathematical processes”); Figure, id. at 848 (defining the term as “arithmetical calculations” or “a number symbol (as one of the arabic numerals)”); Evident, id. at 789 (defining the term as “clear to the understanding: obvious, manifest, apparent (small capitals omitted)); Material, id. at 1392 (meaning “being of real importance or great consequence”).

15 scheme.” (quoting Davis, 489 U.S. at 809); see also United States v. Santos, 553

U.S. 507, 532 (2020) (Alito, J., dissenting) (“I do not suggest that the question

presented in this case can be answered simply by opening a dictionary. When a

word has more than one meaning, the meaning that is intended is often made clear

by the context in which the word is used . . . .”); see also Scalia & Garner, supra,

at 33 (“[V]agueness can often be clarified by context.”); cf. Cabell v. Markham,

148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“Of course it is true that the words

used, even in their literal sense, are the primary, and ordinarily the most reliable,

source of interpreting the meaning of any writing: be it a statute, a contract, or

anything else. But it is one of the surest indexes of a mature and developed

jurisprudence not to make a fortress out of the dictionary; but to remember that

statutes always have some purpose or object to accomplish, whose sympathetic

and imaginative discovery is the surest guide to their meaning.”), aff’d on other

grounds, 326 U.S. 404 (1945). And § 11(a)’s context supports reading the term

“evident” as contemplating a face-of-the-award limitation.

Consider the FAA’s purposes. See Abramski v. United States, 573 U.S.

169, 179 (2014) (noting the importance of considering a statute’s textually

derived purpose in interpreting a provision). Its “‘principal purpose’ . . . is to

‘ensur[e] that private arbitration agreements are enforced according to their

terms.’” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011) (alteration

16 in original) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior

Univ., 489 U.S. 468, 478 (1989)). “This purpose is readily apparent from the

FAA’s text.” Id. And it “reflects the overarching principle that arbitration is a

matter of contract.” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233

(2013). Moreover, part of the parties’ arbitration contract is their “bargain[] for

the arbitrator’s construction of their agreement.” Oxford Health Plans, 569 U.S.

at 569 (quoting E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57,

62 (2000)). In striking that bargain, the parties “trade[] the procedures and

opportunity for review of the courtroom for the simplicity, informality, and

expedition of arbitration.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

31 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 628 (1985)).

Reading this statutory term “evident” as relating to a material

miscalculation that appears on the face of the award furthers the FAA’s purposes.

A face-of-the-award limitation preserves the integrity of the parties’ bargain.

Specifically, it preserves the parties’ deal for an arbitrator’s, rather than a court’s,

resolution of their dispute. This bargain essentially negates the risk that a court

may substitute its judgment (inadvertently or otherwise) for that of the arbitrator

when it goes beyond the award’s face in search of obvious, material mathematical

errors. Further, a face-of-the-award approach also ensures that arbitration

17 remains an efficient means to resolve disputes rather than “merely a prelude to a

more cumbersome and time-consuming judicial review process.” Hall St., 552

U.S. at 588 (quoting Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341

F.3d 987, 998 (9th Cir. 2003)). Reading § 11(a) to allow courts to hunt through

the arbitration record for “evident” miscalculations “opens the door to the full-

bore legal and evidentiary appeals” that the parties would have contracted to

avoid. Id. Faced with one interpretation of § 11(a) that furthers the FAA’s

purposes and one that undermines them, we prefer the former. See Abramski, 573

U.S. at 181; cf. AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508

F.3d 995, 1001 (11th Cir. 2007) (reading the second half of §11(a) as

incorporating a face-of-the-award limitation partly because that reading was

“consistent with the purpose of the [FAA]”).

The FAA’s history supports this reading. “When a statutory term is

‘obviously transplanted from another legal source,’ it ‘brings the old soil with

it.’” Taggart v. Lorenzen, 587 U.S. ----, 139 S. Ct. 1795, 1801 (2019) (quoting

Hall v. Hall, 584 U.S. ----, 138 S. Ct. 1118, 1128 (2018)); see also AIG Baker,

508 F.3d at 1000 (noting that it was “be[ing] guided by the established meaning

that the words of section 11(a) had at the time they were adopted”). Congress

enacted the FAA in 1925 and lifted the statute’s text from “New York’s [1920]

arbitration statute.” Hall St., 552 U.S. at 589 n.7; accord AIG Baker, 508 F.3d at

18 1000; see also Hall St., 552 U.S. at 589 n.7 (“The text of the FAA was based

upon that of New York’s arbitration statute. . . . The New York Arbitration Law

incorporated pre-existing provisions of the New York Code of Civil Procedure.”).

Section 11(a)’s text, in particular, was “virtually identical” to New York’s

provision in effect in 1925. Hall St., 552 U.S. at 589 n.7; see AIG Baker, 508

F.3d at 1000 (“The language of section 11(a) of the federal Act matched almost

verbatim the language of section 2375 of the New York Code of Civil Procedure,

which had long been a part of New York law and the New York Arbitration Law

incorporated by reference.”). That provision allowed courts to modify an

arbitration award to correct “an evident miscalculation of figures.” N.Y. C ODE

C IV . P. § 2375 (Frank B. Gilbert & Austin B. Griffin 1920).

By the time Congress transplanted that language into § 11(a), New York

courts had long interpreted the language “an evident miscalculation of figures” to

mean a miscalculation that appeared in the award “on its face.” In re Burke, 84

N.E. 405, 406 (N.Y. 1908); see Remington Paper Co. v. London Assurance Corp.

of Eng., 12 A.D. 218, 225 (N.Y. App. Div. 1896) (affirming order concluding that

“[t]he party who seeks to set aside an award upon the ground of mistake must

show, from the award itself, that but for the mistake the award would have been

different” (quoting Sweet v. Morrison, 22 N.E. 276, 280 (N.Y. 1889))); see also

19 AIG Baker, 508 F.3d at 1001 (collecting New York cases showing that this

reading has “been part of New York jurisprudence for many years”).

The face-of-the-award limitation therefore “was part of the ‘old soil’” that

§ 11(a) brought with it from New York law. AIG Baker, 508 F.3d at 1001. Over

the intervening decades, Congress has left the “evident material miscalculation”

language untouched. Compare Pub. L. No. 68-401, § 11(a), 43 Stat. 883, 885

(1925), with 9 U.S.C. § 11(a) (2019). Therefore, we must not, in effect, do what

Congress has not done by effacing the face-of-the-award limitation that has long

been old soil attached to § 11(a).

Looking to the FAA’s structure confirms what its purposes and statutory

history have already taught. Sections 9 through 11 of the FAA provide for

“expedited judicial review to confirm, vacate, or modify arbitration awards.”

Hall St., 552 U.S. at 578. Section 9 “unequivocally” commands that courts

“‘must’ confirm an arbitration award ‘unless’ it is vacated, modified, or

corrected.” Id. at 582. Section 11(a) likewise allows for modifications only to

“address egregious departures from the parties’ agreed-upon arbitration.” Id. at

586. This structure counsels narrowly interpreting § 11(a). Cf. Scalia & Garner,

supra, at 362–63 (noting that narrowly interpreting exceptions is warranted if the

text indicates such a preference). The broad construction that Mid Atlantic

proposes would transform § 11(a) from an exception to address egregious

20 circumstances into a freewheeling authorization for the courts to dig through the

arbitration record in search of significant miscalculations. On the other hand, our

construction—that limits the courts to considering the face of the

award—preserves § 11(a)’s status as a narrow exception to “the limited review

needed to maintain arbitration’s essential virtue of resolving disputes

straightaway.” Id. at 588; see AIG Baker, 508 F.3d at 1001 (“This appeal

illustrates the danger of broad judicial review of arbitration awards. The parties

elected to settle their dispute by arbitration rather than litigation, but this appeal

is now before us after more than three years of litigation.”).

This reading of § 11(a) draws additional support from the narrow and

deferential standard of review applicable in the arbitration context. Recall that

our “review of arbitral awards” is “among the narrowest known to law.” Lovato,

864 F.3d at 1083 (quoting Brown, 220 F.3d at 1182). We therefore do “not sit to

hear claims of factual or legal error by an arbitrator.” Stolt-Nielsen, 559 U.S. at

696 (Ginsburg, J., dissenting) (quoting Misco, 484 U.S. at 38); accord Oxford

Health Plans, 569 U.S. at 569. Nor may we “disturb the arbitrators’ judgment,

even if convinced that ‘serious error’ infected the panel’s award.” Stolt-Nielsen,

559 U.S. at 696 (Ginsburg, J., dissenting) (quoting Misco, 484 U.S. at 38).

Consistent with this limited review, we “exercise ‘great caution’ when a party

asks for an arbitration award to be set aside” or modified. Lovato, 864 F.3d at

21 1083 (quoting Ormsbee, 668 F.2d at 1147). Indeed, “[o]nce an arbitration award

is entered, the finality of arbitration weighs heavily in its favor and cannot be

upset except under exceptional circumstances.” Burlington, 636 F.3d at 567

(quoting Ormsbee, 668 F.2d at 1146–47). While § 11(a) enumerates one such

circumstance, it does not override the “extreme deference” we owe the arbitration

award. Lovato, 864 F.3d at 1083 (emphasis omitted) (quoting Brown, 220 F.3d at

1182). Similarly, if we read § 11(a) to allow courts to hunt for errors lurking in

the arbitration record—as Mid Atlantic does—we undercut such deference and

open up arbitration awards to judicial second-guessing. We cannot countenance

such a departure from our narrow and deferential review of arbitration awards.

Mid Atlantic’s primary textual argument against the face-of-the-award

limitation is unpersuasive. 6 It argues that “[t]he only way to determine whether a

6 Ms. Bien and Mr. Wellman argue that Mid Atlantic “failed to raise its arguments regarding the ‘on the face of the award’ requirement . . . with the District Court.” Ms. Bien & Mr. Wellman’s Resp. & Principal Br. at 27. The record belies this suggestion. The district court noted that Mid Atlantic had cited authority for the proposition “that a court may look beyond the face of an award to correct a double recovery under 9 U.S.C. § 11(a)” and then rejected that argument. Aplt.’s App., Vol. V, at 1085 n.4. Even if there was some meaningful doubt as to whether Mid Atlantic did enough to preserve its face-of-the award argument, we have discretion to consider unpreserved issues on appeal. See, e.g., Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.”). And under these circumstances—where the district court recognized that the theory Mid Atlantic presents on appeal was at play in the litigation and rejected it—we exercise our discretion to consider that theory on appeal. Cf. United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (continued...)

22 miscalculation or mistake is ‘material’ is to analyze the [arbitration] record.” Mid

Atlantic’s Opening Br. at 20. And thus, as Mid Atlantic reasons, § 11(a) could

not embody a face-of-the-award limitation because such a limitation would give

the term “material” no effect.

We find this reasoning wholly unpersuasive. Take a hypothetical award

that orders the defendant to pay $100,000 in punitive damages and $100,000 in

compensatory damages but then adds these figures on the award’s face for a total

of $2,000,000. One need not dive into the arbitration record to say that the award

includes a significant (i.e., material) mathematical error. It is untrue, then, that a

face-of-the-award limitation renders null § 11(a)’s materiality requirement.

We are similarly unmoved by Mid Atlantic’s related policy argument that a

face-of-the-award limitation effectively produces arbitrary results. To illustrate

these supposedly arbitrary results, Mid Atlantic offers the following hypothetical:

[C]onsider a hypothetical award which grants postjudgment interest at the rate of 8%. Assume further that the award does not cite any source for the 8% rate of interest, but that the parties had in fact stipulated to the statute governing interest and that statute provides for a 4% rate of interest. In other words, assume the 8% interest rate is indisputably wrong but the “face of the award” does not contain information required to reach that conclusion. Under the District Court’s interpretation, this error cannot be corrected.

6 (...continued) (10th Cir. 2003) (“[W]hen the district court sua sponte raises and explicitly resolves an issue of law on the merits, the appellant may challenge that ruling on appeal . . . .”).

23 Id. at 28–29. According to Mid Atlantic, this hypothetical outcome is arbitrary.

And Mid Atlantic reasons that it “advances zero compelling policy interests” to

prevent courts from correcting this error concerning the interest rate, when—even

under the face-of-the-award approach—courts would have been able to correct the

error if the award had referenced explicitly the parties’ stipulation concerning the

4% interest rate. Id. at 29. Mid Atlantic concludes that the face-of-the-award

approach thus “leaves the question of whether clear math errors can be corrected

up to the random chance that arbitrators ‘show their work.’” Id.

Yet, contrary to Mid Atlantic’s contentions, the FAA’s purpose, history,

and structure make it clear that this is precisely how Congress intended § 11(a) to

function. And its operation is not arbitrary at all. Section 11 authorizes courts to

review an arbitration award—not the arbitration record. See 9 U.S.C. § 11

(permitting courts to “make an order modifying or correcting the award”

(emphasis added)); see also Fellus v. Sterne, Agee & Leach, Inc., 783 F. Supp. 2d

612, 622 (S.D.N.Y. 2011) (declining to correct an award because the plaintiff

could “not point to any patently obvious miscalculation on the face of the award,

nor can it do so, for the award does not explain the arbitrators’ rationale . . . or

reference any numbers other than the total damages awarded”); cf. ARW Expl.

Corp. v. Aguirre, 45 F.3d 1455, 1463 (10th Cir. 1995) (“[C]ourts are not to

instruct the arbitrator as to the correct computation of damages.”). Further, the

24 face-of-the-award approach is congruent with Congress’s purpose of providing

“just the limited review needed to maintain arbitration’s essential virtue of

resolving disputes straightaway.” Hall St., 552 U.S. at 588. Irrespective of

whether Mid Atlantic considers this purpose to be the stuff of compelling public

policy, that is Congress’s judgment, and we are obliged to defer to it.

What’s more in dispelling Mid Atlantic’s misguided notion that the statute

functions in an arbitrary manner—under a face-of-the-award approach—it is

important to keep in mind that “arbitration is a matter of contract.” Henry Schein,

139 S. Ct. at 529. If Mid Atlantic wished to avoid the supposedly random chance

that the arbitration panel would not show its work, it could have contracted for a

fully explained award. See Am. Express, 570 U.S. at 233 (noting that parties can

contract to specify the arbitrator and the rules for arbitration); United

Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 598 (1960)

(“Arbitrators have no obligation to the court to give their reasons for an award.”).

But Mid Atlantic did not do so. In fact, the current contracts lead us to the

opposite conclusion. Most obviously, Mid Atlantic’s contracts with Ms. Bien and

Mr. Wellman specify, “[t]he arbitrators do not have to explain the reason(s) for

their award.” Aplt.’s App., Vol. III, at 737. We thus cannot (and would not

attempt to) rewrite the parties’ contracts just because Mid Atlantic is now

dissatisfied with the fruits of its bargain. After all, “by agreeing to arbitrate,”

25 Mid Atlantic traded “procedures and opportunity for review of the courtroom for

the simplicity, informality, and expedition of arbitration.” Gilmer, 500 U.S. at 31

(quoting Mitsubishi, 473 U.S. at 628). Stated otherwise, that Mid Atlantic is

displeased with the level of informality with which the arbitration panel resolved

the dispute is not cause to undo the bargain it struck with Ms. Bien and Mr.

Wellman. Cf. Beumer Corp. v. ProEnergy Servs., LLC, 899 F.3d 564, 566 (8th

Cir. 2018) (“The parties bargained for the arbitrator’s decision; if the arbitrator

got it wrong, then that was part of the bargain.”).

In sum, we conclude that § 11(a) allows courts to correct only those evident

material miscalculations that appear on the face of the award. The provision’s

text compels that conclusion, when it is read in the context of the FAA’s

purposes, history, and structure. And this conclusion is bolstered by the narrow

and deferential standard of review applicable in the arbitration context.

Persuasive authority from our sister circuits confirms our reading of

§ 11(a). Take the Fourth Circuit’s decision in Apex Plumbing Supply. As part of

the award there, the arbitrator compensated Apex for the value of its inventory.

But in calculating that figure, the arbitrator wrongly included the value of

inventory over one year old. See 142 F.3d at 193. This inadvertently large figure

for Apex’s inventory value made its way into the final arbitration award;

26 however, the mathematical calculations by which the arbitrator arrived at that

figure did not. U.S. Supply therefore moved under § 11(a) to correct this error.

The district court, however, denied that motion. On appeal, the Fourth Circuit

affirmed, emphasizing the “severely circumscribed” review that federal courts

have of arbitration awards and the fact that § 11 “allows modification of an

arbitrator’s award only in limited instances.” Id. With these considerations in

mind, the court determined that the “claimed miscalculation of the inventory’s

value . . . was not ‘evident’ because it did not appear on the face of the arbitration

award.” Id. at 194. Thus, the Fourth Circuit held that the district court correctly

declined to modify the award.

The Fourth Circuit’s reasoning and holding in Apex buttress ours. As we

do here, Apex grounds its holding on § 11(a)’s text—read in the context of the

federal courts’ “severely circumscribed” review of arbitration awards. Id. at 193.

From this text and context, the Fourth Circuit interpreted “evident” to mean that a

miscalculation must “appear on the face of the arbitration award” to satisfy

§ 11(a). Id. at 194. The court’s conclusion and its reasoning are congruent with

our own holding.

To escape this potent and persuasive authority, Mid Atlantic tries to

distinguish Apex. In doing so, it casts that case as one involving “an alleged

miscalculation of a line item in an arbitration award.” Mid Atlantic’s Opening

27 Br. at 26. But that fact does not distinguish Apex from this case. Indeed, akin to

the error in Apex, the miscalculation here involves an alleged duplication of a line

item in an arbitration award. Compare id. at 17 (complaining that the arbitration

panel awarded net-out-of-pocket losses and market-adjusted damages), with Apex,

142 F.3d at 193 (summarizing U.S. Supply’s complaint that the arbitration panel

“included inventory over one year old in its valuation of Apex’s entire

inventory”). So Mid Atlantic’s effort to distinguish Apex falls flat.

Trying a different tack, Mid Atlantic faults Apex for “borrow[ing] the ‘face

of the award’ phrasing from Hough v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 757 F. Supp. 283, 288 (S.D.N.Y. 1991).” Mid Atlantic’s Opening Br. at 27.

As Mid Atlantic points out, Hough involved New York’s arbitration statute, not

the FAA. Implicit in that observation is the critique that by citing a case

interpreting New York law to support its view that § 11(a) includes a face-of-the-

award limitation, the Apex court effectively undercut the persuasive value of its

reasoning.

Such an implicit critique, however, is misguided because of the close

connection between New York arbitration law and the FAA—especially with

respect to the language of § 11(a). As discussed above, the New York provision

operative in 1925 allowed courts to correct “an evident miscalculation of figures.”

N.Y. C ODE C IV . P. § 2375, supra. Congress transplanted that language into

28 § 11(a). And by the time it did so, New York courts had long interpreted it to

mean a miscalculation that appears on the face of the award. See In re Burke, 84

N.E. at 406. In borrowing that “evident miscalculation of figures” language from

New York law, as noted, Congress also borrowed the New York courts’

longstanding interpretation of that phrase as including a face-of-the-award

limitation. Therefore, Mid Atlantic’s implicit critique of Apex for its reliance on

New York law, and in particular on Hough, is misguided.

To be sure, although Congress has left the relevant language of § 11(a)

intact, New York has amended its counterpart to § 11(a) to omit the word

“evident.” That is, the New York provision in effect today and when Hough was

decided allows courts to modify awards if “there was a miscalculation of figures.”

N.Y. C.P.L.R. § 7511(c)(1). But, importantly, even though New York’s amended

text conceivably could contemplate a more searching judicial inquiry because of

the elimination of the restrictive term “evident,” New York courts continue “to

require that the miscalculation appear on the face of the award.” Avamer Assocs.,

L.P. v. 57 St. Assocs., L.P., 67 A.D. 3d 483, 484 (N.Y. App. Div. 2009). 7

7 See also Cardinale v. 267 Sixth Street LLC, No. 13 Civ. 4845 (JFK), 2014 WL 4799691, at *9 (S.D.N.Y. Sept. 26, 2014) (unpublished) (citing Hough for proposition that New York law and FAA, generally limits modification to “patently obvious mistakes on the face of the award”); Hemlall v. Ngo, No. 2008- 1825 QC, 2009 WL 3297542, at *1 (N.Y. Sup. Ct. Oct. 8, 2009) (unpublished) (“We are of the view that plaintiff’s motion [to modify award] was properly denied since a mathematical error in the computation of damages was not evident (continued...)

29 Consequently, Apex was on solid ground in relying on New York law—and, more

specifically, Hough—in holding that § 11(a) contemplates a face-of-the-award

limitation.

Mid Atlantic also complains that Apex, in any event, misread Hough. It

contends that the language from Hough that Apex relied on was taken out of

context, resulting in Apex’s misreading of Hough’s import. Set in its full context,

Mid Atlantic explains, the Hough language that Apex relies on reads: “Where no

mathematical error appears on the face of the award and where no computational

error can be clearly inferred, an arbitration award will not be altered.” Mid

Atlantic’s Opening Br. at 27 (quoting Hough, 757 F. Supp. at 288). But Apex

omitted the italicized language. See 142 F.3d at 194. And that “clearly inferred”

language, Mid Atlantic posits, proves that the phrase “face of the award” is “non-

statutory shorthand” that imposes no “actual requirement that district courts

ignore a properly submitted arbitration record” in determining whether an award

has an “evident material miscalculation.” Mid Atlantic’s Opening Br. at 27–28.

Put differently, Mid Atlantic argues that the “face of the award” language

7 (...continued) from the face of the award.”); 23A C ARMODY -WAIT N.Y. P RACTICE WITH F ORMS § 141:256 Westlaw (database updated March 2020) (“[A] modification based upon the statutory ground of a miscalculation of figures is proper only where a mathematical error in the computation of damages is evident from the face of the award.”); 5 N.Y. J UR . 2 D A RBITRATION AND A WARD § 280 Westlaw (database updated February 2020) (“Mistakes apparent on the face of the award may be corrected in an action brought for that purpose . . . .”).

30 encompasses clear inferences that courts may glean from the arbitration record.

In this sense, it reasons that Hough—and by extension, Apex—“actually supports

[its] position here.” Id. at 27.

We disagree. Hough’s “clearly inferred” language came from an earlier

New York case, City of Troy v. Village of Menands, 48 A.D. 2d 733, 734 (N.Y.

Sup. Ct. 1975). See Hough, 757 F. Supp. at 288 (citing City of Troy). However,

neither City of Troy nor Hough specified the source from which courts are to

make these inferences. And, without citation to any supportive legal authority,

Mid Atlantic has no clear footing to support its position; instead, it baldly

contends that this language contemplates that courts may look to the arbitration

record for those inferences. This view is unpersuasive because one may naturally

read the “clearly inferred” language as being entirely consistent with a face-of-

the-award limitation. And, such a reading would be congruent with the long line

of New York cases that have historically endorsed such a limitation. See, e.g., In

re Burke, 84 N.E. at 46. Specifically, the language “clearly inferred” (as it

appears in City of Troy and Hough) naturally could be read to mean that courts are

still limited to the face of the award in looking for obvious, material

miscalculations, but that the face-of-the-award limitation simply includes, not

only obvious mathematical errors that can be discerned from the explicit

31 computations of the award (e.g., 2+2=5), but also such errors that can be clearly

inferred from the language and other figures of the award.

Under such a reading, the sole touchstone for the court’s analysis would

still be the face of the award. And crucially, the arbitration record would remain

off limits. Indeed, at least one New York court quoting City of Troy’s “clearly

inferred” statement has read that language precisely in this manner. See Curtis

Lumber Co. v. Am. Energy Care, Inc., 910 N.Y.S. 2d 761, 2010 WL 1756883 at

*4, (N.Y. Sup. Ct. Apr. 30, 2010) (unpublished) (reading “miscalculation of

figures” to mean “‘mathematical errors on the face of the . . . award’ or

‘computational errors [that] can be clearly inferred’ from the award” (alterations

in original) (emphasis added) (quoting City of Troy, 48 A.D. 2d at 734)). And we

have discerned no contrary view in other New York cases. Thus, as we see it,

neither the “clearly inferred” language in Hough nor Apex’s reliance on Hough

“actually supports” Mid Atlantic’s position. Mid Atlantic’s Opening Br. at 27.

Finally, Mid Atlantic wrongly claims that Apex did “not identify a statutory

basis for limiting a court’s review to errors that appear ‘on the face of the

award.’” Mid Atlantic’s Reply & Resp. Br. at 8. However, as we do, Apex

grounded the face-of-the-award limitation in § 11(a)’s text—namely, the word

“evident.” See Apex, 142 F.3d at 194 (“[T]he miscalculation was not ‘evident’

because it did not appear on the face of the arbitration award.”). In short, despite

32 Mid Atlantic’s arguments to the contrary, Apex supports our holding that § 11(a)

allows district courts to correct only those material miscalculations that appear on

the face of the award.

We find similar (though admittedly less robust) support in Grain v. Trinity

Health, Mercy Health Services Inc., 551 F.3d 374 (6th Cir. 2008). In that case, a

married couple won a sizable arbitration award but moved to modify the award to

correct “an evident material miscalculation of figures.” Id. at 378 (quoting 9

U.S.C. § 11(a)). However, because the couple “failed to raise this argument in

the district court,” the Sixth Circuit did not address it at length. Id. But the court

considered the argument enough to read the phrase “an evident . . . miscalculation

of figures” to mean “a computational error in determining the total amount of an

award—what the Fourth Circuit calls ‘a mathematical error appear[ing] on the

face of the award.’” Id. (alterations in original) (emphasis added) (quoting Apex,

142 F.3d at 194). “No such error appear[ed] on the face of the award,” the Sixth

Circuit concluded. Id. at 379. Indeed, rather than “complaining that the

arbitrators made an obvious numerical gaffe in computing the total award,” the

couple had argued “that the arbitrators made a mistake on the merits.” Id.

“Whatever else such an alleged error may be,” the Sixth Circuit explained that it

was “not ‘an evident material miscalculation of figures.’” Id.

33 Grain supports our reading of § 11(a). Guided by Apex, Grain focused on

the statutory text and concluded that, for the error to be “evident” within the

meaning of § 11(a), it must appear “on the face of the award.” Id. And Grain

concluded that the couple could not demonstrate that its alleged error satisfied

this standard. Thus, Grain is persuasive support for the face-of-the-award

holding we reach here.

We recognize that Mid Atlantic marshals certain cases that purportedly

bolster its position. Chief among them is Eljer Manufacturing, Inc. v. Kowin

Development Corp., 14 F.3d 1250 (7th Cir. 1994). The arbitration award there

gave the defendant, Kowin, almost $15 million in damages. See 14 F.3d at 1253.

The award divided these damages “into three separate” categories of (1) about $3

million, (2) around $8.4 million, and (3) $3.5 million. Id. The award itself did

not clarify what these amounts represented or how the arbitrator calculated them.

Id. But as it turned out, the three categories “duplicated precisely the amounts

requested by Kowin in the damages section of its post-hearing brief.” Id. By

consulting that brief, the district court determined that the first category

inadvertently included $1.25 million that Eljer had already paid Kowin, and that

the third category included $2.5 million that the first category had already

accounted for. To correct these errors, the district court granted Eljer’s motion

for modification under § 11. Kowin appealed this decision.

34 The Seventh Circuit in Eljer agreed with the district court that the “[t]he

basis for each of the arbitrator’s awards” was Kowin’s brief. Id. at 1254. It

rejected Kowin’s contention that “the [district] court’s reduction of the award

rest[ed] on impermissible speculation as to what each of the arbitrator’s three

awards was attempting to redress,” reasoning that “[i]t was hardly speculative for

the district court to base its analysis on Kowin’s own explanation of its

damages.” Id. The court observed that “Kowin confuses a narrow standard of

review with a nonexistent standard of review.” Id. With this information from

beyond the face of the award, the Seventh Circuit concluded that the award

provided for double recoveries. And it reasoned that a “[d]ouble recovery

constitutes a materially unjust miscalculation which may be modified under

section 11.” Id. Thus, the Seventh Circuit affirmed the district court’s order

modifying the award. See id. at 1257.

The face-of-the-award limitation that we adopt here is admittedly in some

tension with the Seventh Circuit’s decision in Eljer. But we do not find Eljer’s

analysis persuasive, and, thus, it gives us no pause. See, e.g., United States v.

Krueger, 809 F.3d 1109, 1116 n.9 (10th Cir. 2015) (declining to rely on

“unpersuasive out-of-circuit cases”). For starters, Eljer did not expressly hold

that § 11(a) permits district courts to go beyond the face of the arbitration award

to find evident material mathematical miscalculations. And, notably, Eljer

35 undertook no textual analysis of § 11(a); for instance, the word “evident” appears

nowhere in the body of the opinion. See Eljer, 14 F.3d at 1253 n.4. This failing

is particularly salient given the Supreme Court’s repeated instruction to “interpret

the [FAA] as written.” Henry Schein, 139 S. Ct. at 529; see also Hall St., 552

U.S. at 587–88. What’s more, the non-textual analysis that does exist in Eljer

comes in a brief discussion devoid of any on-point authority. See 14 F.3d at 1254

(citing two cases for the proposition that § 11 allows modification to correct

double recovery but citing no authority for the proposition that courts may look

beyond the face of the award to determine whether such a double recovery exists).

Indeed, Mid Atlantic concedes that Eljer only “tacitly endorsed . . . review of the

arbitration record.” Mid Atlantic’s Reply & Resp. Br. at 7. Therefore, we are not

persuaded by Eljer’s analysis, and it does not lead us to question the face-of-the-

award limitation we adopt here.

The other cases Mid Atlantic cites are similarly unpersuasive. Consider

Transnitro, Inc. v. M/V Wave, 943 F.2d 471 (4th Cir. 1991). The arbitrator there

awarded M/V damages accounting for, among other things, certain expenses that

M/V had incurred and about $57,000 in interest that had accrued on a bond. After

the award was issued, M/V discovered that it had failed to inform the arbitrator or

Transnitro that it had already earned about $34,000 in interest on the bond.

Likewise, M/V had not reported some $28,000 in expenses. In federal court,

36 Transnitro moved to modify the award to subtract the unreported $34,000 from

the $57,000 interest award. For its part, M/V asked to collect the $28,000 in

unreported expenses. The district court agreed to subtract the $34,000 from the

interest award because it would be “unfair to permit [M/V] to reap the benefit of

[its own] failure.” Id. at 474. But fairness did not likewise compel the court to

allow M/V to collect the unreported expenses.

On appeal, M/V argued “that the district court had no power under 9 U.S.C.

§ 11 to modify” the award because the provision’s “last sentence . . . [which

speaks of modifications to awards “so as to . . . promote justice between the

parties”] d[id] not create an independent basis for modification.” Id. at 373–74.

Rather, it contended that § 11 authorized “modification only if the provisions of

one of subparagraphs (a), (b) or (c) [were] met.” Id. The Fourth Circuit

sidestepped that question. It reasoned instead that whatever the effect of the last

sentence of § 11, “there were, within the meaning of subsection (a), material

mistakes made in the arbitration proceeding as to interest on the bond and . . . as

to other expenses.” Id. True, the court noted,“[t]hose errors were apparently not

the fault of the arbitrators.” Id. However, that fact did “not also mean that where

there is ‘an evident material mistake’ attributable to one or both parties to an

arbitration, a district court lacks power under subsection (a) to do equity and

justice,” the court explained. Id. (emphasis added). The Fourth Circuit further

37 reasoned that “the court below was right in reaching and correctly determining the

interest issue. However, that court also should have reached and determined the

additional expenses issue.” Id. Therefore, the Fourth Circuit affirmed the

interest modification and remanded for the district court to consider the expense

issue further.

Mid Atlantic relies heavily on Transnitro. It reads that case as proof that

“the Fourth Circuit . . . endorsed a review of material beyond even the arbitration

record itself.” Mid Atlantic’s Opening Br. at 22. Mid Atlantic adds that

Transnitro even “revers[ed] a district court’s decision not to correct an error

based upon a review of factual information that was never submitted to the

arbitration Panel.” Id. At bottom, Mid Atlantic reads Transnitro to stand for the

proposition that when, “as here, there is a mathematical error in an award, the

district court could have (and should have) looked at the materials in the

arbitration record . . . to determine the fix for that mathematical error.” Id. at 25.

Drilling down on it, however, Transnitro is less helpful than Mid Atlantic

thinks. To begin, that case interpreted the language “evident material mistake”

from the second half of § 11(a). See Transnitro, 943 F.2d at 474. And recall, we

are concerned here with only the language from the first half of § 11(a), which

authorizes courts to correct an “evident material miscalculation.” To be sure,

ordinarily, Transnitro’s interpretation of the second half of § 11(a) could not be

38 easily dismissed as irrelevant, given the presumption that a term, such as

“evident,” bears the same meaning throughout a statutory text. See Scalia &

Garner, supra, at 170. But the Fourth Circuit—the same court that issued

Transnitro—subsequently spoke in Apex to the precise meaning of “evident” in

the first half of § 11(a) and held that a “miscalculation was not ‘evident’ because

it did not appear on the face of the arbitration award.” 142 F.3d at 194. For our

purposes, then, Apex—not Transnitro—offers the Fourth Circuit’s on-point

determination of the language we are concerned about here. And that

interpretation supports our holding. 8

Even if Transnitro were the only word from the Fourth Circuit on § 11(a),

we would respectfully decline to follow it because we are not persuaded by its

analysis. See Krueger, 809 F.3d at 1116 n.9; cf. AIG Baker, 508 F.3d at 1000

(“We are convinced that the earlier decision of the Fourth Circuit in Transnitro is

erroneous.”). Significantly, the court in Transnitro seemed to draw and rely on a

distinction between errors by arbitrators for which “relief under [the terms of] 9

U.S.C. § 11(a) would have been available,” and errors by one or more litigants, as

8 Because Apex and Transnitro concern different portions of § 11(a), we do not interpret their holdings to directly conflict. As a result, the Fourth Circuit’s interpretive rule that “[w]hen published panel opinions are in direct conflict on a given issue, the earliest opinion controls” plays no role in our analysis. McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (emphasis added); see United States v. Rosales-Miranda, 755 F.3d 1253, 1261 (10th Cir. 2014) (recounting similar rule).

39 there, for which the district court had “power under subsection (a) to do equity

and justice.” 943 F.2d at 474 (emphasis added); cf. AIG Baker, 508 F.3d at 999

(“Because the arbitration panel crafts the award, only the panel can make a

mistake in the award.”). This suggests that Transnitro’s holding is inapposite

because we are concerned here with an alleged error of the arbitrator, not a

litigant. And this reading of Transnitro is supported by the fact that the court did

not purport to engage with the terms of § 11(a)—which the court itself seem to

recognize would be relevant only if the error was one committed by the arbitrator.

See 943 F.2d at 474. Rather, the court appeared to rely on § 11(a) only as a

source of equitable power. See id. at 474 (noting that district courts have the

“power under subsection (a) to do equity and justice” (emphasis added)).

At the end of the day, what is important is what the Transnitro court

did—and, especially, did not do—in reaching its holding, not the theory that

motivated its actions. And, in addition to tacitly eschewing a textual analysis of

§ 11(a), the court in Transnitro did not consider the FAA’s purposes, history, or

structure in arriving at its holding. Yet, as explained above, it is these sources

(combined with § 11(a)’s plain text) that ultimately led us to the conclusion that

we reach here concerning the face-of-the-award limitation. Therefore, even if

Transnitro were the only word from the Fourth Circuit on § 11(a), the fact that

the court elided these key sources in reaching its holding would render it an

40 unpersuasive touchstone for our own interpretation of that provision. In sum,

contrary to Mid Atlantic’s reading of the case, we do not find that Transnitro

speaks persuasively—if at all—to the circumstances before us.

We are likewise unpersuaded by Valentine Sugars, Inc. v. Donau Corp.,

981 F.2d 210 (5th Cir. 1993), which Mid Atlantic also cites. That case contains

the following passage:

Next, Valentine argues that we should vacate the award because it is based upon a material mistake of fact. Title 9 U.S.C. § 11(a) allows us to vacate an award “[w]here there was an evident material miscalculation of figures . . . .” The Sixth Circuit has held that “where the record that was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance on the mistake by the arbitrator in making his award, it can fairly be said that the arbitrator ‘exceeded [his] powers or so imperfectly executed them’ that vacation may be proper.”

981 F.2d at 214 (alterations in original) (quoting Nat’l Post Office Mailhandlers

v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Later Fifth

Circuit cases have read that passage as holding “that an ‘evident material

[mis]calculation’ occurs ‘where the record that was before the arbitrator

demonstrates an unambiguous and undisputed mistake of fact and the record

demonstrates strong reliance on that mistake by the arbitrator in making his

award.’” Prestige Ford v. Ford Dealer Comput. Servs., Inc., 324 F.3d 391,

396–97 (5th Cir. 2003) (emphasis added) (quoting Valentine, 981 F.2d at 214),

41 overruled on other grounds by Hall St., 552 U.S. 576. Viewed in this light,

Valentine arguably stands for the proposition that § 11(a) permits district courts

to look beyond the face of the arbitration award to the arbitration record. While

this interpretation seems to conflict with the one we embrace today, we are not

persuaded by Valentine.

At its core, Valentine rests on an untenable reading of National Post Office.

See Valentine, 981 F.2d at 214 (relying on National Post Office). In that case, the

Postal Service fired an employee who had been indicted for drug trafficking. The

employee protested the discharge and initiated arbitration proceedings. Although

the arbitrator had “doubts,” he nevertheless “sustain[ed] the discharge.” 751 F.2d

at 838. The arbitrator’s “written decision . . . includ[ed] the glaring misstatement

that the employee had pleaded guilty to marijuana trafficking . . . prior to the

Postal Service’s discharge action.” Id. (emphasis added). In truth, the employee

pleaded guilty “four weeks after the discharge.” Id. Given such an error, the

employee’s union moved to vacate the arbitration decision. The district court

denied the motion.

The Sixth Circuit reversed. It reasoned that when “the record that was

before the arbitrator demonstrates an unambiguous and undisputed mistake of fact

and the record demonstrates strong reliance on that mistake by the arbitrator in

making his award, it can fairly be said that the arbitrator ‘exceeded [his] powers,

42 or so imperfectly executed them’ that vacation may be proper.” Id. at 843

(quoting 9 U.S.C. § 10(d)). Because it was “undisputed that [the] arbitrator . . .

was in error regarding the date of the employee’s guilty plea” and that the error

“played a central if not essential role in his decision,” the Sixth Circuit held that

vacatur was appropriate. Id. But rather than vacating and remanding for

“meaningless rearbitration,” the court determined that “under 9 U.S.C. § 11, the

intent of [the] arbitrator[’s] . . . award and the interests of justice . . . [would] best

be promoted by ordering simply that the employee be awarded back pay for the . .

. period between his discharge and the date he pleaded guilty.” Id. at 844.

As this description suggests, properly read, National Post Office has

nothing to do with § 11(a) and the propriety of a face-of-the-award limitation.

Indeed, the case says nothing about what constitutes either “an evident material

miscalculation” or “an evident material mistake” and, in fact, does not even

include the word “face.” 9 U.S.C. § 11(a). Rather, National Post Office speaks

to only when an arbitrator “so imperfectly executed” her powers that a court may

vacate the award under another provision of the FAA, which is now codified at

§ 10(a)(4). 9 As for § 11, at most, National Post Office read the last sentence of

§ 11 as allowing courts to modify awards to promote justice when the conditions

9 The FAA provision that National Post Office relied on—9 U.S.C. § 10(d)—was moved in 1990 and is now codified at 9 U.S.C. § 10(a)(4). See Administrative Dispute Resolution Act, Pub. L. 101-552, §5, 104 Stat. 2745 (1990).

43 for vacatur are met. Compare Nat’l Post Office, 751 F.2d at 844 (“[W]e conclude

that under 9 U.S.C. § 11, the intent of arbitrator[’s] award and the interests of

justice between the parties will best be promoted by ordering simply that the

employee be awarded back pay for the 31-day period between his discharge and

the date he pleaded guilty.” (emphasis added)), with § 11 (providing in the last

sentence that “[t]he order may modify and correct the award, so as to effect the

intent thereof and promote justice between the parties” (emphasis added)). But

even that proposition is irrelevant to the meaning of the plain terms of § 11(a)

and, more specifically, whether those terms allow courts to look beyond the face

of an award.

We must respectfully conclude, therefore, that Valentine misread National

Post Office. It took National Post Office’s discussion of when vacatur under

now-§ 10(a)(4) was appropriate and—without explanation or citation to on-point

legal authority—grafted that discussion onto § 11(a). Therefore, Valentine is an

unreliable guidepost for the interpretation of § 11(a), and we are unpersuaded by

its holding. As a result, the Fifth Circuit’s apparent rule—based on

Valentine—that “an ‘evident material [mis]calculation’ occurs ‘where the record

that was before the arbitrator demonstrates an unambiguous and undisputed

mistake of fact,” Prestige Ford, 324 F.3d at 396 (quoting Valentine, 981 F.2d at

44 214), has no cogent force for us. We endorse instead a face-of-the-award

* * *

To recapitulate, we hold that § 11(a) allows district courts to correct only

those evident material miscalculations of figures that appear on the face of the

arbitration award. District courts may not look beyond the face of the award

when determining whether such an error exists. We derive that face-of-the-award

limitation from the plain meaning of § 11(a) taken in context. And persuasive

out-of-circuit authority confirms our reading.

Having concluded that § 11(a) incorporates a face-of-the-award limitation,

we now must determine whether the face of the arbitration award here contains an

evident material miscalculation of figures. It is Mid Atlantic’s burden to prove

that such a miscalculation appears on the face of the award. See Apex, 142 F.3d

at 194 (concluding that U.S. Supply “did not meet its burden under section eleven

in order to modify the award”); see also Samaan v. Gen. Dynamics Land Sys.,

Inc., 835 F.3d 593, 603 (6th Cir. 2016) (explaining that the party seeking vacatur

bears the burden); Cooper v. WestEnd Capital Mgmt., L.L.C., 832 F.3d 534, 544

(5th Cir. 2016) (same). Put simply, Mid Atlantic has not satisfied that burden.

45 The arbitration award ordered Mid Atlantic to pay Ms. Bien and Mr.

Wellman two forms of damages: (1) initial-investment-loss damages and (2)

compensatory damages. The award broke down as follows:

Damages Award Ms. Bien Mr. Wellman Both Total Initial Investment Loss $240,321 N/A $52,090 $292,411 Compensatory Damages $437,286 $47,397 N/A $484,683 Total $677,607 $47,397 $52,090 $777,094

Mid Atlantic argues that the award “included a clear ‘double-counting.’” 10

Mid Atlantic’s Opening Br. at 12. It posits that the $292,411 award for “initial

investment loss” reflected the $292,411 in net out-of-pocket losses that Ms. Bien

and Mr. Wellman’s expert had testified that they suffered. Similarly, the

$484,683 in “compensatory damages” almost exactly matched the $484,684 in

“market-adjusted damages” that the expert had at one point said Ms. Bien and Mr.

Wellman incurred. And, Mid Atlantic notes that the expert had testified, “market-

10 Ms. Bien and Mr. Wellman argue that Mid Atlantic failed to preserve its double-recovery argument by not raising the issue during arbitration. In particular, they fault Mid Atlantic for not invoking FINRA Rule 12905, which allows a party to alert the panel to computational errors in the award within ten days. See FINRA Code, Rule 12905(a)(2). Whether Mid Atlantic’s failure to invoke that rule forfeited its double-recovery argument is an open question that we need not resolve here given that we conclude that Mid Atlantic’s double- recovery argument fails in any event. Cf. Murphy v. Royal, 875 F.3d 896, 912 (10th Cir. 2017) (declining to resolve whether an issue was waivable or waived), cert. granted, 138 S. Ct. 2026 (2018); United States v. Zander, 794 F.3d 1220, 1233 (10th Cir. 2015) (same). We therefore assume without deciding that Mid Atlantic preserved its double-recovery argument.

46 adjusted damages include net out-of-pocket losses.” Id. at 17. Indeed, the expert

had presented net out-of-pocket damages and market-adjusted damages as

alternative measures of the couple’s losses. And Ms. Bien and Mr. Wellman had

asked for only market-adjusted damages in their final prayer for relief. But the

arbitration panel awarded Ms. Bien and Mr. Wellman what it labeled “initial

investment losses” and “compensatory damages.” In so doing, according to Mid

Atlantic, the panel mistakenly awarded Ms. Bien and Mr. Wellman damages

twice.

Even if we accept Mid Atlantic’s double-counting argument, it does not

carry the day on appeal. For example, let us say that Mid Atlantic is correct that

the award included double counting. After all, it is conceivable that the

arbitration panel misunderstood the alternative measures of damages that Ms.

Bien and Mr. Wellman’s expert had presented. And the panel may have

inadvertently given them a double recovery by awarding them both measures of

damages (i.e., net out-of-pocket losses and market-adjusted damages).

Mid Atlantic’s double-counting argument, however, still would not permit

it to prevail. Most obviously, the alleged material miscalculation did not appear

on the face of the award. Further, the award did not even state that the “initial

investment loss” damages corresponded to what the expert had called net out-of-

pocket losses. Nor did the award say that the “compensatory damages” were

47 equivalent to the market-adjusted damages that the expert discussed. Critically,

missing from the award was an explanation as to how the panel calculated the

damages figures. We need not definitively opine on how much of such

information would have been sufficient to make the alleged material

miscalculation evident on the face of the award. Suffice it to say, the absence of

all of this information under the circumstances here prevented the alleged

material miscalculation from being evident on the face of the award. In short,

“there is no math issue” on the face of the award. Ms. Bien & Mr. Wellman’s

Resp. & Principal Br. at 26. And Mid Atlantic does not suggest otherwise,

arguing instead that courts are free to look beyond the face of the award. In the

end, Mid Atlantic has not carried its burden of identifying an evident material

miscalculation of figures that appears on the face of the award. Therefore, we are

obliged to uphold the district court’s decision not to rectify the alleged double

recovery in favor of Ms. Bien and Mr. Wellman.

IV

With the issue Mid Atlantic raises in its appeal resolved, we turn now to the

three questions that Ms. Bien and Mr. Wellman raise in their cross-appeal. Those

questions ask whether the district court erred by (1) granting post-award interest

on damages, but not attorney’s fees and other costs; (2) awarding postjudgment

interest at the federal rate; and (3) ordering Ms. Bien and Mr. Wellman to

48 reassign to Mid Atlantic any post-award distributions from their ownership

interests in Sonoma Ridge Partners and KBS (including interest thereon). We

hold that the district court did not err in any of these respects. Thus, we affirm

the remainder of the amended final judgment.

We start with the district court’s first supposed error—granting post-award

interest on damages, but not on attorney’s fees and other costs. As we explain,

the district court did not err.

The arbitration award ordered Mid Atlantic to pay Ms. Bien and Mr.

Wellman damages, attorney’s fees, and arbitration costs. As discussed above, the

award ordered Mid Atlantic to pay two types of damages—“an initial investment

loss” and “compensatory damages.” Aplt.’s App., Vol. I, at 28. It also specified

that Mid Atlantic was “liable for and shall pay . . . interest at the rate of 8% per

annum beginning February 6, 2015[,] until” each type of damages was “paid in

full.” Id. However, in stating that Mid Atlantic was “liable for and shall pay”

attorney’s fees and costs, the award said nothing about interest. Id. By negative

implication, the award seemed to effectively deny interest on the attorney’s fees

and costs. See Scalia & Garner, supra, at 107–11. The award made this more

explicit by clarifying that “[a]ny and all claims for relief not specifically

addressed herein . . . are denied.” Aplt.’s App., Vol. I, at 28 (emphasis added).

49 A “claim for relief” is “[a] demand for money, property, or a legal remedy to

which one asserts a right.” Claim, B LACK ’ S L AW D ICTIONARY 311 (11th ed.

2019). As applicable here, the language “demand for money” in the definition of

“claim” is naturally read as encompassing Ms. Bien and Mr. Wellman’s request

for interest on the attorney’s fees and costs. See Aplt.’s App., Vol. I, at 27

(noting that Ms. Bien and Mr. Wellman sought any and all “relief which [the

arbitration] Panel deem[ed] just and proper”). Yet, the arbitration panel’s award

did “not specifically address[]” this claim for relief (i.e., demand for money) of

Ms. Bien and Mr. Wellman. Id. at 28. As a result, the arbitration award had the

effect of not ordering Mid Atlantic to pay interest on attorney’s fees or

costs—only on the damages, which the award did address. Accordingly, the

district court did not err in adhering to the award’s terms by ordering Mid

Atlantic to pay interest on only the damages.

Ms. Bien and Mr. Wellman, however, beg to differ. They contend that “the

terms of [their] agreement” with Mid Atlantic compelled the district court to grant

interest on the entire award—not just on the damages portion. Ms. Bien & Mr.

Wellman’s Reply Br. at 2. As they point out, the arbitration clause in the

contracts with Mid Atlantic incorporated FINRA’s arbitration rules. And FINRA

Rule 12904(j) provides in relevant part:

An award shall bear interest from the date of the award:

50 (1) If not paid within 30 days of receipt;

(2) If the award is the subject of a motion to vacate which is denied; or

(3) As specified by the panel in the award.

FINRA Code, Rule 12904(j). According to Ms. Bien and Mr. Wellman, the

phrase “an award shall bear interest” means that interest accrues on “the entire

award, and not simply parts of it.” Ms. Bien & Mr. Wellman’s Resp. & Principal

Br. at 45. And, because their contracts with Mid Atlantic incorporated Rule

12904(j), they reason that “the explicit language” in their contracts compelled the

district court to grant them interest on the entire award, not just on the damages.

Id. at 47.

This argument fails. For starters, whether Rule 12904(j) requires interest to

be paid on the entire award—i.e., on attorney’s fees and costs as well as on

damages—is a question of contract interpretation. Such questions are the

province of the arbitration panel. After all, the parties bargained for “the

arbitrator’s construction” of their contract. Burlington, 636 F.3d at 570 (quoting

United Steelworkers, 363 U.S. at 599); see, e.g., Aplt.’s App., Vol. III, at 715

(“All controversies that may arise between you, [and] us . . . including, but not

limited to, controversies concerning . . . breach of this or any other agreement

between you and us . . . shall be determined by arbitration”). The only question

for us is “whether the arbitrator (even arguably) interpreted the parties’ contract,

51 not whether he got its meaning right or wrong.” Lovato, 864 F.3d at 1083

(quoting Oxford, 569 U.S. at 569). In awarding interest on damages but not on

attorney’s fees and costs, the arbitration panel here arguably interpreted the

contracts (including Rule 12904(j)) as not mandating that interest accrue on every

portion of the award. Cf. Carpenters 46 N. Cal. Ctys. Conference Bd. v. Zcon

Builders, 96 F.3d 410, 414 (9th Cir. 1996) (“[W]e hold that the district court

properly gave deference to the arbitrator’s implicit decision on the notice issue.”);

McKesson Corp. v. Local 150 IBT, 969 F.2d 831, 834 (9th Cir. 1992) (deferring to

arbitrator’s implicit interpretation of contract); E.I. DuPont de Nemours and Co.

v. Int’l Chem. Workers Union, 968 F.2d 456, 458 (5th Cir. 1992) (remarking that

arbitrator’s findings may be implicit). And we are bound by that interpretation

unless it is obviously contrary to “the plain language of the contract.” Lovato,

864 F.3d at 1083 (quoting Misco, 484 U.S. at 38). It is not.

Rule 12904(j) speaks to when interest on an award begins accruing. But

the rule does not specify that the arbitration panel was required to award interest

on the entire award. Indeed, the plain terms of the rule at least arguably leave the

panel with the discretion to reach a contrary conclusion: that is, a panel may

expressly or effectively “specif[y] . . . in the award,” FINRA Code, Rule

12904(j), that at no time will interest accrue on certain portions of the award.

Accordingly, because we cannot conclude that the arbitration panel’s award here

52 is obviously contrary to the plain terms of the contracts insofar as it did not grant

interest on attorney’s fees or costs to Ms. Bien and Mr. Wellman, we must defer

to that award.

In sum, the district court’s decision that interest did not accrue on the

attorney’s fees and costs that the arbitration panel awarded to Ms. Bien and Mr.

Wellman is consistent with the plain terms of the panel’s award and those terms

are not obviously contrary to the contracts of Ms. Bien and Mr. Wellman with

Mid Atlantic. Accordingly, the district court did not err. We therefore affirm

that portion of the amended final judgment.

We now consider the district’s second supposed error—awarding

postjudgment interest at the federal rate. Again, the district court did not err.

Federal law sets the rate at which postjudgment interest accrues on civil

judgments in federal court. See 28 U.S.C. § 1961; Youngs v. Am. Nutrition, Inc.,

537 F.3d 1135, 1146 (10th Cir. 2008). Judgments confirming or modifying

arbitration awards are not insulated by any exception from the operation of

federal law. See 9 U.S.C. § 13 (giving such judgments “the same force and

effect” as any other judgment and subjecting them to the same “provisions of

law”). Indeed, once a district court confirms or modifies an arbitration award, the

53 cause of action underlying the award “merges into the judgment” and the federal

rate set forth in 28 U.S.C. § 1961 applies. In re Riebesell, 586 F.3d 782, 794

(10th Cir. 2009); see Tricon Energy Ltd. v. Vinmar Int’l, Ltd., 718 F.3d 448, 457

(5th Cir. 2013); Fid. Fed. Bank v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir.

2004); R ESTATEMENT (S ECOND ) OF J UDGMENTS § 18 cmt. (a) (1982). That said,

parties may contract around the merger rule and specify a different postjudgment

interest rate. See Newmont U.S.A., Ltd. v. Ins. Co. of N. Am., 615 F.3d 1268,

1276 (10th Cir. 2010). But to do so, they must express “their intent to override

[28 U.S.C. § 1961] using ‘clear, unambiguous and unequivocal language.’” Id. at

1277 (quoting Soc’y of Lloyd’s v. Reinhart, 402 F.3d 982, 1004 (10th Cir. 2005)).

Outside the arbitration context, the parties’ failure to clearly,

unambiguously, and unequivocally express their intent to contract around the

federal rate is dispositive. See, e.g., In re Riebesell, 586 F.3d at 794–95. But in

the arbitration context, there is another wrinkle to consider. Whether the parties

intended to contract around the federal postjudgment interest rate “is a

quintessential fact question.” Newmont, 615 F.3d at 1277. So the parties may

have agreed to have the arbitration panel decide whether they contracted around

the federal postjudgment interest rate. Id. And if the arbitration panel concludes

that the parties have done so, the panel may, “[c]onsistent with § 1961,” order

that the contracted-for rate apply. Id. In other words, if “the matter of post-

54 judgment interest was properly before the arbitration panel,” id. at 1276, and the

panel specifies that the contracted-for postjudment interest rate applies, we are

bound by that finding, id. at 1277; see Tricon, 718 F.3d at 458 (“[I]nsofar as an

arbitration panel sets a postjudgment rate as a matter of contract interpretation, its

award is entitled to almost absolute deference.”). But like parties, “arbitrators

must be just as clear and unequivocal” in expressing their intent to stray from the

federal postjudgment interest rate. Id. at 459; see Durga Ma, 387 F.3d at 1024

(holding that absent an express reference to postjudgment interest in the award

the federal rate applies); cf. Newmont, 615 F.3d at 1276 (reversing imposition of

federal rate when the arbitration panel had expressly awarded a different rate).

To recap, the federal postjudgment interest rate in 28 U.S.C. § 1961 applies

unless one of two conditions is met. First, the federal rate does not apply if the

parties clearly, unambiguously, and unequivocally contract for a different

postjudgment interest rate. Second, if the parties put the postjudgment-interest

issue before the arbitration panel and the panel similarly awards postjudgment

interest clearly and unequivocally, then the awarded rate applies. Neither

condition is met here.

Given our narrow review of arbitration awards, we begin with the second

55 condition. Insofar as there was a “controvers[y]” between the parties with respect

to the rate of postjudgment interest, the parties contracted to place that dispute in

the hands of the arbitration panel. See, e.g., Aplt.’s App., Vol. III, at 715 (“All

controversies that may arise between you, [and] us . . . including, but not limited

to, controversies concerning . . . breach of this or any other agreement between

you and us . . . shall be determined by arbitration”). The award here, however,

never used the word “postjudgment.” See id., Vol. I, at 26–28. Indeed, in

reciting the relief Ms. Bien and Mr. Wellman had requested, the award listed

“[p]re-judgment interest” but not postjudgment interest. Id. at 27. The arbitration

panel seemingly did not consider postjudgment interest. Perhaps for that reason,

the award did “not specifically address[]” postjudgment interest. Id. at 28. As a

result, the terms of the award dictate that the arbitration panel denied a claim for

any specified rate of postjudgment interest, along with every other claim for relief

“not specifically addressed” in the award. Id. Thus, even if “the matter of post-

judgment interest was properly before the arbitration panel,” Newmont, 615 F.3d

at 1276, the panel did not award postjudgment interest at a rate other than that in

28 U.S.C. § 1961. Absent such an express award of postjudgment interest, the

federal rate applies—just as the district court concluded.

Our examination of the parties’ contracts ends with the same conclusion.

56 The word “postjudgment” appears nowhere in the contracts themselves See

Aplt.’s App., Vol. III, at 705–37. True, FINRA Rule 12904(j), which the

contracts incorporate, provides: “Interest shall be assessed at the legal rate, if

any, then prevailing in the state where the award was rendered, or at a rate set by

the arbitrator(s).” FINRA Code, Rule 12904(j). But that rule is silent as to

whether—or at what rate—postjudgment interest shall accrue. And consistent

with the merger rule, we have held that merely agreeing “to be bound by [a

jurisdiction’s] law does not amount to agreeing to a particular post-judgment

interest rate.” Reinhart, 402 F.3d at 1004; accord In re Riebesell, 586 F.3d at

794; see Tricon, 718 F.3d at 459 (requiring parties to “expressly refer[] to

postjudgment interest”); Durga Ma, 387 F.3d at 1024 (same). Rule 12904(j)

simply amounts to an agreement to be bound by a certain jurisdiction’s law; that

is insufficient to contract around the merger rule and the federal rate. As a result,

the parties did not clearly, unambiguously, and unequivocally contract around the

federal postjudgment interest rate.

57 Ms. Bien and Mr. Wellman disagree. 11 They point to FINRA Rule 12904(j)

as evidence that they contracted with Mid Atlantic for the Colorado statutory

postjudgment interest rate of 8%. They reason that the arbitration panel “had the

power to award [postjudgment] interest” at that rate—i.e., 8%. Ms. Bien & Mr.

Wellman’s Resp. & Principal Br. at 50. And according to Ms. Bien and Mr.

Wellman, the arbitration panel exercised that authority by ordering that Mid

Atlantic pay damages “plus interest at the rate of 8% per annum beginning

February 6, 2015[,] until . . . paid in full.” Aplt.’s App., Vol. I, at 28 (emphasis

added). Critical to their argument, Ms. Bien and Mr. Wellman read the “until

paid in full” language as an award of both pre- and postjudgment interest at the

rate of 8%.

This argument fails. Its key misstep is in reading the “until paid in full”

language as providing for an award of postjudment interest. Court after court has

11 In their reply brief, Ms. Bien and Mr. Wellman offer additional arguments. First, they contend that the district court erred in applying the federal rate because “the parties both agreed in their submissions to the District Court that the post-judgment interest rate was 8%.” Ms. Bien & Mr. Wellman’s Reply Br. at 9–10 (emphasis omitted). Second, they complain that “it simply makes no sense whatsoever to modify an arbitration award regarding interest simply because a judgment is now attached to the award.” Id. at 11. Third, they rattle off some policy reasons why “[a]pplying a rate other than one stated by the arbitrators in their award” has “undesirable effect[s].” Id. at 12. We need not and do not consider these late-blooming arguments, however, since Ms. Bien and Mr. Wellman waited until their reply brief to raise them. See United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (“[A]rguments raised for the first time in a reply brief are generally deemed waived.”).

58 rejected this argument. Take Tricon as an example. As here, the arbitration

award imposed interest “until paid.” 718 F.3d at 459. “[T]hough, interpreted

literally,” that language would apply “beyond the judgment,” the Fifth Circuit

held that the award spoke only to prejudgment interest. See id. at 459–60. “Such

boilerplate language,” the court explained, could not “circumvent the merger rule”

and deviate from the federal postjudgment interest rate. Id. at 460. The Second,

Ninth, and Eleventh Circuits have reached similar or analogous conclusions in the

arbitration context. See Carte Blanche Pte., Ltd. v. Carte Blanche Int’l, Ltd., 888

F.2d 260, 264, 270 (2d Cir. 1989) (holding the federal rate applied despite award

of interest “to the date of payment”); Parsons & Whittemore Ala. Mach. & Servs.

Corp. v. Yeargin Const. Co., 744 F.2d 1482, 1483–84 (11th Cir. 1984) (holding

that the federal rate applied despite award of interest “until the award was paid”);

cf. Durga Ma, 387 F.3d at 1024 (holding award of “interest at the statutory rate”

did not circumvent the federal rate).

Outside of the arbitration context, our court has likewise held that a

contract using the language “shall accrue interest until payment” was not a

“contract for a post-judgment interest rate,” meaning “the federal rate applie[d].”

In re Riebesell, 586 F.3d at 794–95. Given this contrary authority, Ms. Bien and

Mr. Wellman’s reliance on the “until paid in full” language is misplaced. 12

12 To support their until-paid-in-full argument, Ms. Bien and Mr. (continued...)

59 In summary, even if the postjudgment-interest issue were properly before

the arbitration panel, we would not read the panel’s award as clearly and

unequivocally awarding postjudment interest. Nor did the parties clearly,

unambiguously, or unequivocally express their intent to contract around the

federal rate. The district court was therefore correct to apply the federal

postjudgment interest rate.

We now consider whether the district court erred by ordering Ms. Bien and

Mr. Wellman to reassign to Mid Atlantic any post-award distributions from their

ownership interests in Sonoma Ridge Partners and KBS (including interest

thereon). We conclude that Ms. Bien and Mr. Wellman have not demonstrated

that the district court erred.

The arbitration award ordered Ms. Bien and Mr. Wellman to “reassign

ownership of all Sonoma Ridge Partners and KBS REIT investments to [Mid

12 (...continued) Wellman cite only two district court cases. The first case ordered that post-award interest would continue “until payment.” Kruse v. Sands Bros. & Co., 226 F. Supp. 2d 484, 489 (S.D.N.Y. 2002). But it said nothing about postjudgment interest. See id. The second case applied the rules of FINRA’s predecessor (i.e., NASD) to award postjudgment interest at a state-law rate because the arbitration award was silent on that issue and the opposing party had failed to timely offer any arguments to the contrary. See McClelland v. Azrilyan, 31 F. Supp. 2d 707, 713 (W.D. Mo.), aff’d, 168 F.3d 494 (8th Cir. 1998). Our synopses of these cases should be enough to reveal their weaknesses. Suffice it to say, neither is persuasive.

60 Atlantic].” Aplt.’s App., Vol. I, at 28. Mid Atlantic was served with the award in

December 2016. After this service, Ms. Bien and Mr. Wellman say that they

contacted Mid Atlantic about reassigning the investments. According to the

couple, Mid Atlantic thought reassigning the investments was “premature”

because it had moved to vacate the award. Ms. Bien & Mr. Wellman’s Resp. &

Principal Br. at 52 n.18. Consequently, Ms. Bien and Mr. Wellman retained

ownership of the investments during the district court proceedings.

Having confirmed the arbitration panel’s award, in its amended final

judgment entered in April 2018, the district court ordered Ms. Bien and Mr.

Wellman to “reassign ownership of all Sonoma Ridge Partners and KBS REIT

investments to . . . Mid Atlantic.” Aplt.’s App., Vol. V, at 1093. However, the

court specifically clarified that “the reassignment shall include any and all

amounts distributed to [Ms. Bien and Mr. Wellman] by the Sonoma Ridge

Partners and KBS REIT investments after the [arbitration] Award, as well as any

interest earned on such distributions.” Id.

Ms. Bien and Mr. Wellman now argue that the district court erred in

ordering them to reassign to Mid Atlantic any post-award distributions from their

ownership interests in Sonoma Ridge Partners and KBS. They argue that the

district court strayed from “[t]he plain language of the [arbitration] Award.” Ms.

Bien & Mr. Wellman’s Resp. & Principal Br. at 52. That award “did not require”

61 them to pay Mid Atlantic the post-award distributions from the investments. Id.

Had the arbitration panel meant to do so, they argue it “could have stated so in the

Award.” Id. But the panel did not, and instead ordered that Ms. Bien and Mr.

Wellman assign only “their ‘ownership’ in the [Sonoma Ridge Partners and KBS

investments].” Id. Hence, Ms. Bien and Mr. Wellman contend that the district

court erred by improperly modifying the award to require them to reassign the

post-award distributions.

This argument is unpersuasive. Notably, Ms. Bien and Mr. Wellman cite to

no on-point legal authority to support this contention of error. This failing in

itself inclines us to reject their challenge. See, e.g., Grissom v. Roberts, 902 F.3d

1162, 1173 (10th Cir. 2018) (“It is a party’s duty to develop an argument if it

wishes a determination by this court.”); Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief

are waived . . . .”).

Moreover, Ms. Bien and Mr. Wellman do not meaningfully dispute Mid

Atlantic’s factual assertions concerning the status of their investments at the time

the district court ruled. Specifically, Mid Atlantic underscores in its briefing that

“investments are not static” and that Ms. Bien and Mr. Wellman “were paid cash

distributions on those investments post-Award . . . . [and] both investments were

liquidated and have no value at all” after the arbitration award, except for a

62 substantial distribution that Ms. Bien and Mr. Wellman received for their

ownership interests in KBS. Mid Atlantic’s Resp. & Reply Brief at 39 (emphasis

added). In response, Ms. Bien and Mr. Wellman do no more than make one vague

assertion—without citation to the record—that Mid Atlantic “has completely

reversed course on its valuation of Sonoma Ridge” from the position it took “[a]t

the arbitration” by now asserting, “in an almost ironic twist,” that after the

arbitration award their interests in the Sonoma Ridge Partners investment became

worthless. Ms. Bien & Mr. Wellman’s Reply Br. at 14. Further, addressing our

questions at oral argument, counsel for Ms. Bien and Mr. Wellman acknowledged

that there had been a “liquidating distribution” and that there was nothing left of

the stocks themselves. Oral Arg. at 29:56–30:06; see id. at 30:32–37.

This failure to meaningfully dispute Mid Atlantic’s factual assertions is

significant. Part and parcel of Ms. Bien and Mr. Wellman’s overarching

obligation to explain how the district court erred is the obligation to give us an

accurate picture of the factual landscape before the district court when it ruled.

Cf. Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The

first task of an appellant is to explain to us why the district court’s decision was

wrong.”). Consequently, because Ms. Bien and Mr. Wellman have not

meaningfully challenged—and indeed seem to agree with—Mid Atlantic’s

63 assertions concerning the status of their investments at the time the district court

ruled, we proceed on the premise that Mid Atlantic’s assertions are correct.

With this understanding of the factual landscape, and without the benefit of

citations of apposite authority from Ms. Bien and Mr. Wellman, we find their last

contention of error unpersuasive. Ms. Bien and Mr. Wellman’s argument begs the

important question—what does “ownership” of the investments mean? The

investments were “common stock” in KBS and Sonoma Ridge Partners. Aplt.’s

App., Vol. IV, at 885–87 (Proposed Assignment of Stock, dated June 12, 2017).

The ordinary legal understanding of “common stock” is “[a] class of stock

entitling the holder . . . to receive dividends . . . and to share in assets upon

liquidation.” Common Stock, B LACK ’ S L AW D ICTIONARY , supra, at 1713; see,

e.g., 18 C.J.S. Corporations § 215, Westlaw (database updated Mar. 2020) (noting

that “[a] common stockholder is an owner of the enterprise in proportion that his

or her stock bears to the entire stock and ordinarily he or she is entitled to . . .

ultimate distribution of assets of the corporation”).

“Ownership” of the investments, then, entailed the right to receive

distributions and to share in the liquidated assets. Thus, the arbitration award that

ordered Ms. Bien and Mr. Wellman in December 2016 to reassign ownership of

their investments in Sonoma Ridge Partners and KBS to Mid Atlantic also should

be read as having effectively ordered them to reassign to Mid Atlantic (in addition

64 to any actual common stock) their rights to future distributions from those

investments. And it is undisputed that—irrespective of the reason—Ms. Bien and

Mr. Wellman did not act on the arbitration panel’s order: that is, they did not

reassign their ownership interests in the Sonoma Ridge Partners and KBS

investments to Mid Atlantic before the district court entered its amended final

judgment in April 2018. It is further uncontested that at the time the court

entered its amended final judgment, essentially all that was left of the ownership

interests of Ms. Bien and Mr. Wellman in Sonoma Ridge Partners and KBS was

their distributions following liquidation.

Therefore, when the district court ordered Ms. Bien and Mr. Wellman to

reassign their distributions from Sonoma Ridge Partners and KBS (as well as

interest thereon) to Mid Atlantic, it was actually enforcing the terms of the

arbitration award—which required reassignment of their ownership interests in

those investment vehicles—instead of straying from those terms. Stated

otherwise, when the district court entered its amended final judgment in April

2018, it ensured that Mid Atlantic received all of the ownership interests—which

included the right to future distributions—that Ms. Bien and Mr. Wellman had in

their Sonoma Ridge Partners and KBS common stock, just as the arbitration panel

contemplated. Accordingly, we reject the last contention of error of Ms. Bien and

Mr. Wellman.

65 66 V

For the reasons stated above, we AFFIRM the amended final judgment in

all respects. 13

13 Having carefully considered the merits of Mid Atlantic’s pending unopposed motion to file Volume VI of the appendix under seal in light of the public’s “right of access to judicial records,” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011), we grant the motion.