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Swarbick v. UMPQUA Bank

February 26, 2010

STEPHEN L. SWARBICK, CESAR LOPEZ, AND ELIZABETH FESTEJO, PLAINTIFFS,
v.
UMPQUA BANK, WESTERN SIERRA NATIONAL BANK, AND DOES 1 THROUGH 20, INCLUSIVE. DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion by Defendant Umpqua Bank ("Defendant") to Vacate the December 30, 2009 "Final Arbitration Opinion and Award" issued in favor of Plaintiffs Stephen L. Swarbick, Cesar Lopez, and Elizabeth Festejo ("Plaintiffs") pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Concurrently before the Court is a Motion by Plaintiffs for Confirmation of Arbitration Award pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.

Plaintiffs also move for attorney's fees and costs. For the reasons set forth below, Defendant's Motion is denied and Plaintiffs' Motions are granted.*fn1

BACKGROUND

In July 2003, Defendant*fn2 and Woodbury Financial Services ("Woodbury") entered into a Third-Party Brokerage Agreement whereby certain employees of Defendant would dually serve as Registered Representatives of Woodbury, selling financial products on their behalf. Woodbury is a registered securities broker-dealer that provides administrative and clearing functions for institutions and brokers who cannot handle securities sales directly under federal law. Plaintiffs served as such "dual agents" meaning that they were simultaneously employed by Defendant while selling securities as representatives of Woodbury. Accordingly, Plaintiffs had an Employment Agreement contract with Defendant and a separate agreement with Woodbury. Securities sales were made either to customers of Defendant or through the dual agent's personal contacts.

As compensation for securities sold through Defendant and the dual agents, Woodbury paid a commission to Defendant on a semi-monthly basis. However, pursuant to the Third-Party Brokerage Agreement, Defendant was not entitled to commissions for sales generated through the dual agents' personal contacts. Instead, it was the responsibility of Defendant to forward the appropriate funds to Plaintiffs.

However, commissions were not forwarded to Plaintiffs, and in 2008 Plaintiffs filed suit against Defendant alleging breach of contract to third-party beneficiaries, breach of fiduciary duties, unjust enrichment, breach of California Labor Code, and breach of Lopez's employment contract. Pursuant to Plaintiffs' Employment Agreements the matter was then submitted to arbitration. On December 30, 2009, the Arbitrator issued a Final Award granting damages to Plaintiffs on the grounds of breach of employment contract as to Plaintiff Lopez and breach of fiduciary duty as to Plaintiffs Swarbick and Festejo. Attorney's costs and fees were awarded to Swarbick and Festejo.

Defendant now moves to vacate the award of damages and attorney's fees to Swarbick and Festejo on the allegation that the Arbitrator manifestly disregarded the law and issued an irrational and internally contradictory decision that fails to draw its essence from parties' contract. Plaintiffs move for confirmation of the award due to Defendant's failure to remit damages as mandated by the Arbitrator's award. Plaintiffs also seek to recover the cost of enforcing the Award.

STANDARD

Judicial review of arbitration awards is heavily restricted by the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., which "enumerates limited grounds on which a federal court may vacate, modify or correct an arbitral award." Bosack v. Soward, 586 F.3d 1096, 1102 (9th Cir. 2009). "Neither erroneous legal conclusions nor unsubstantiated factual findings justify federal court review of an arbitral award under the statute, which is unambiguous in this regard." Kyocera Corp. v. Prudential-Bache Trade Servs., 341 F.3d 987, 994 (9th Cir. 2003). Under the FAA, "a court 'must' confirm an arbitration award 'unless' it is vacated, modified, or corrected 'as prescribed' in §§ 10 and 11." Hall St. Assocs., L.L.C., v. Mattel, Inc., 552 U.S. 576, 582 (2008) (citing 9 U.S.C. § 10(a)). Sections 10 and 11 authorize courts to vacate, modify, or correct an award for egregious departures from the parties' agreed-upon arbitration. Id. at 586.

Specifically, Section 10(a)(4) of the FAA permits courts to vacate arbitration awards "where the arbitrators exceed their powers." 9 U.S.C. § 10(a)(4). An arbitrator exceeds his powers where he demonstrates "manifest disregard of the law" or issues an award that is "completely irrational." Kyocera, 341 F.3d at 997. The burden of establishing grounds for vacating an arbitration award is on the party seeking it. U.S. Life Ins. Co.v. Superior Nat. Ins. Co., 591 F.3d 1167, 1173 (9th Cir. 2010).

"Manifest disregard of the law" is established by a "clear" showing from the record that "the arbitrator recognized the applicable law and then ignored it." Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277, 1290 (9th Cir. 2009). The "manifest disregard" exception requires something beyond and different from a mere error in the law or failure on the part of the arbitrators to understand and apply the law. Colling v. D.R. Horton, Inc., 505 F.3d 874, 879 (9th Cir. 2007). Accordingly, the court may not reverse an arbitration award for erroneous interpretation of the law. Id. Rather, there must be some evidence in the record, other than the result, that the arbitrators were aware of the law and intentionally disregarded it. Bosack, 586 F.3d at 1104.

The "completely irrational" standard is extremely narrow and is satisfied only where the arbitration decision fails to draw its essence from the agreement. Comedy Club, 553 F.3d at 1288. An award draws its essence from the agreement if the award is derived from the agreement, viewed in light of the agreement's language and context, as well as other indications of the parties' intentions. Bosack, 586 F.3d at 1106. Under this standard of the review, the court does not decide "the rightness or wrongness of the arbitrators' contract interpretation, only whether the panel's decision draws its essence from the contract." Id.

An arbitrator does not exceed his authority "if the decision is a plausible interpretation of the arbitration contract." U.S. Life Ins., 591 F.3d at 1177. Accordingly, "the court must defer to the arbitrator's decision as long as the arbitrator even arguably construed or applied the contract." Id. ...


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