Marchison Capital Partners, L.P. v. Nuance Communications, Inc. , 760 F.3d 418 ( 2014 )

Case: 13-10852 Document: 00512711570 Page: 1 Date Filed: 07/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
July 25, 2014
No. 13-10852 Lyle W. Cayce
Clerk
MURCHISON CAPITAL PARTNERS, L.P.; ROBERT MURCHISON; DR.
ALAN HULL, M.D.; BACK NINE INVESTMENTS, LIMITED; DOUGLAS
KELLER; ET AL,
Plaintiffs - Appellees
v.
NUANCE COMMUNICATIONS, INCORPORATED,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, JONES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
This appeal arises from a lawsuit to clarify an arbitration award
concerning an alleged breach of a corporate merger agreement. Nuance
Communications now appeals the district court’s order remanding this case
back to the arbitration panel for clarification of the arbitration award. Since
we have previously stated that a district court order remanding a case back to
an arbitration panel for clarification is not a final order, we DISMISS this
appeal for lack of jurisdiction.
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FACTS AND PROCEDURAL HISTORY
Plaintiff-Appellees are stockholders of a Texas-based startup software
company called Vocada, Inc. (“Vocada”). Defendant-appellant Nuance
Communications, Inc. (“Nuance”) is a publicly traded global computer software
company located in Massachusetts. Vocada’s sole product was a software
program called Veriphy, which documents patients’ medical test results in
radiology departments and hospitals. Nuance produces a software product
called PowerScribe, a speech recognition software used in medical care
facilities that allows users to convert spoken word into text appearing on
computer screens. Veriphy worked well with Nuance’s PowerScribe program
and eventually Nuance approached Vocada about a merger. Vocada and
Nuance believed that the sales of both PowerScribe and Veriphy would
increase if sold together as one software suite.
Nuance acquired 100 percent of Vocada’s stock through a merger
agreement in 2007. Pursuant to the agreement, Nuance paid $24 million as
the upfront purchase price and agreed to pay up to an additional $21 million
in “Earnout Consideration,” contingent upon Veriphy sales producing specified
levels of revenue in the years after the merger. The merger agreement
contained a binding arbitration clause for disputes relating to the Earnout
Consideration.
Three years after the merger the Vocada stockholders had not received
any Earnout Consideration, so their stockholder representative filed a demand
for arbitration alleging that Nuance had defrauded the Vocada stockholders.
Vocada asserted that it was entitled to the $21 million Earnout Consideration
as its benefit-of-the-bargain damages, and that in the alternative, it was
entitled to out-of-pocket damages that would be measured by the difference
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between the $24 million Nuance paid as the up-front purchase price for
Vocada’s stock and the actual value of Vocada at the time of the merger.
After a two week arbitration hearing the arbitration panel returned an
award finding that Nuance committed fraud in inducing Vocada into the
merger agreement by making materially false statements about Nuance’s
intentions to sell the Veriphy software product, but that Vocada was not
entitled to damages because Nuance’s fraudulent representations were not the
cause of Veriphy’s poor revenue in the years after the merger. Instead, the
panel found that Vocada’s own salesforce, who joined Nuance after the merger,
performed poorly, the Veriphy product did not have “buy-in” from the medical
profession, the 2008 economic recession impacted Veriphy’s sales, and
Veriphy’s pre-merger customer base had been substantially overstated by
Vocada.
The arbitration clause in the merger agreement required the
arbitration panel to support its award by “written findings of fact and
conclusions.” Accordingly, the arbitration panel issued a thirty-page award in
which it described its “Findings of Fact” and “Conclusions of Law.” The
arbitration award did not differentiate between Vocada’s claims for out-of-
pocket and benefit-of-the-bargain damages, but rather, stated that “Vocada is
not entitled to any portion of the $21 Million Earnout Consideration on account
of its statutory fraud claim.”
On November 1, 2012, Plaintiff-Appellees filed an application in Texas
state court on behalf of the Vocada shareholders to vacate and remand the
arbitration award. The Vocada shareholders argued that the arbitration panel
exceeded its authority by failing to issue specific findings of fact and
conclusions of law on Vocada’s request for out-of-pocket damages. Specifically,
Vocada asserted that the $21 million Earnout Consideration was related only
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to its benefit-of-the-bargain damages request. Therefore, Vocada argues, the
arbitration panel’s award stating that Vocada was not entitled to any of the
$21 million did not address the out-of-pocket losses. Nuance removed the
action to the U.S. District Court for the Northern District of Texas, Dallas
Division under diversity jurisdiction.
The district court found that the arbitration panel exceeded its authority
under the arbitration agreement by failing to provide sufficient findings of fact
and conclusions of law regarding Vocada’s out-of-pocket damages claim.
Accordingly, the district court remanded the case back to the arbitration panel
for consideration of the issue of out-of-pocket damages. The district court made
clear that it was remanding the award for further consideration but was not
vacating the award. Nuance appealed the district court’s remand order to this
Court.
STANDARD OF REVIEW
“We review questions of subject matter jurisdiction de novo.” Wagner v.
United States, 545 F.3d 298, 300 (5th Cir. 2008). We review a district court’s
order confirming or vacating an arbitration award de novo, “but the review of
the underlying award is exceedingly deferential.” Rain CII Carbon, LLC v.
ConocoPhillips Co., 674 F.3d 469, 472 (5th Cir. 2012).
DISCUSSION
Nuance appeals the propriety of the district court’s remand order, but
Plaintiff-Appellees assert that appellate jurisdiction is lacking here and that
this appeal should be dismissed accordingly. We must first address the issue
of our appellate jurisdiction. See Castaneda v. Falcon, 166 F.3d 799, 801 (5th
Cir. 1999) (“We must always be sure of our appellate jurisdiction and, if there
is doubt, we must address it, sua sponte if necessary.” (citation omitted)).
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Section 16 of the Federal Arbitration Act (FAA) allows for appeals from,
inter alia, orders confirming or denying confirmation of an award or partial
award, orders modifying, correcting, or vacating an award, and a final decision
with respect to an arbitration that is subject to the FAA. 9 U.S.C. § 16(a). It
is well established that an order confirming an arbitration award is a final
appealable order. Id. §16(a)(1)(D). It is also well established that an order
vacating an award and remanding the case back to arbitration for a rehearing
is a final appealable order. See Atl. Aviation, Inc. v. EBM Grp., Inc., 11 F.3d
1276, 1280 (5th Cir. 1994) overruled on other grounds by Action Indus., Inc. v.
U.S. Fid. & Guar. Co., 358 F.3d 337, 341 n.10 (5th Cir. 2004) (noting that under
the FAA “orders which vacate awards and direct a rehearing of the arbitration
dispute . . . are appealable”). Here, the district court neither vacated nor
confirmed the arbitration award but instead remanded the award back to the
arbitration panel for further consideration of Vocada’s out-of-pocket damages.
(R. 730). Specifically, the district court held that the arbitration panel “failed
to provide sufficient findings of fact and conclusions of law on the issue of out-
of-pocket damages, which was submitted to it but not resolved.” (R. 729).
Plaintiff-Appellees rely on this Court’s decision in Forsythe
International, S.A. v. Gibbs Oil Co. of Texas, 915 F.2d 1017 (5th Cir. 1990) for
their assertion that appellate jurisdiction is lacking in this case. In Forsythe,
we addressed the question of whether a district court’s order vacating an
arbitration award and remanding the case to a different arbitration panel for
an entirely new hearing was a final appealable order. Id. at 1019–20. While
we found that the district court’s vacatur and remand order was appealable,
we also stated that “[h]ad the district court remanded to the same arbitration
panel for clarification of its award, the policies disfavoring partial resolution
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by arbitration would preclude appellate intrusion until the arbitration was
complete.” Id. at 1010 n.1.
Other Circuits have adopted the rule found in Forsythe, finding that
orders vacating an award and remanding the case for an entirely new
arbitration are appealable, but orders remanding a case back to an arbitration
panel for further clarification of an existing award are not. See, e.g., Jays
Foods, L.L.C. v. Chem. & Allied Prod. Workers Union, Local 20, AFL-CIO, 208
F.3d 610, 613 (7th Cir. 2000) (“[T]he Federal Arbitration Act [] make[s] orders
vacating arbitral awards appealable immediately, though nonfinal, unless the
purpose of the remand was merely to enable the arbitrator to clarify his
decision in order to set the stage for informed appellate review.” (internal
citation omitted)); Virgin Islands Housing Authority v. Coastal General
Construction Services Corp., 27 F.3d 911, 913–14 (3rd Cir. 1994) (noting that
for purposes of appellate jurisdiction, “the distinction is whether the additional
hearing is ordered merely for purposes of clarification -- an order that would
not be appealable -- or whether the remand constitutes a re-opening that would
begin the arbitration all over again [which would].”); Landy Michaels Realty
Corp. v. Local 32B-32J, Service Employees Int’l Union, 954 F.2d 794, 797 (2nd
Cir. 1992) (finding that a district court’s remand that “ordered the same
arbitrator to make some further decision with respect to the content of the
award . . . . is not immediately appealable”).
Nuance contends that the district court’s remand order “did not remand
for ‘clarification’ of the arbitration award, as imagined in Forsythe’s
hypothetical.” Nuance’s argument is unavailing, as the district court’s order
stated that the panel “failed to provide sufficient findings of fact and
conclusions of law on the issue of out-of-pocket damages” and its final judgment
explained “[t]he case is remanded to the Arbitration Panel for consideration of
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the issue of out of pocket damages.” Accordingly, the district court remanded
the case back to the same arbitration panel for further clarification of the
existing award, which fits squarely within the hypothetical posed by Forsythe.
Appellants also argue that the district court’s order is a final judgment
under the Supreme Court’s holding in Green Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 86 (2000). In Green Tree, the Court considered whether
“an order compelling arbitration and dismissing a party’s underlying claims is
a ‘final decision with respect to an arbitration’ within the meaning of § 16(a)(3)
of the Federal Arbitration Act, and thus is immediately appealable pursuant
to that Act.” Id. at 82. The Court explained, “[b]ecause the FAA does not define
‘a final decision with respect to an arbitration’ . . . we accord the term its well-
established meaning” as “a decision that ends the litigation on the merits and
leaves nothing more for the court to do but execute the judgment.” Id. at 86
(internal quotation marks and citations omitted).
The Court in Green Tree held that the district court’s order compelling
arbitration was a final judgment because it ended the litigation on the merits
as far as the district court was concerned, even though its order contemplated
further proceedings in arbitration:
The District Court’s order directed that the dispute be resolved by
arbitration and dismissed respondent’s claims with prejudice,
leaving the court nothing to do but execute the judgment. That
order plainly disposed of the entire case on the merits and left no
part of it pending before the court. . . . The District Court’s order
was therefore “a final decision with respect to an arbitration”
within the meaning of § 16(a)(3), and an appeal may be taken.
Green Tree, 531 U.S. at 86–87 (internal citation omitted).
Here, Appellants argue that the district court’s order should be viewed
as a final order under Green Tree because it resolved the sole issue in
dispute―namely, whether the panel exceeded its authority under 9 U.S.C. §
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10(a)(4) by failing to address Vocada’s out-of-pocket damages. The order in
Green Tree, however, directed the parties to arbitration and then dismissed the
case with prejudice. Id. at 89 (“We therefore conclude that where, as here, the
District Court has ordered the parties to proceed to arbitration, and dismissed
all the claims before it, that decision is ‘final’ within the meaning of § 16(a)(3),
and therefore appealable.”) (emphasis added). Here, in contrast, the district
court did not dismiss the parties’ case (in fact, the court denied Nuance’s
motion to dismiss), nor did it vacate or confirm the award, but simply entered
a judgment remanding the award for further clarification.
We must also decline to exercise jurisdiction over the district court’s
nonfinal order to avoid generating piecemeal appeals. For example, if we
accepted jurisdiction to entertain this appeal and, assuming arguendo,
affirmed the district court’s decision to remand the case back to the arbitration
panel, the panel would still have to clarify its award to address Vocada’s out-
of-pocket damages theory. The parties could then return to the district court
with any complaints they wish to raise regarding the clarified arbitration
award, and could then file a second appeal in this Court based upon the district
court’s decision. In this case, we would have generated two separate appellate
decisions on the same arbitration award, resulting in piecemeal appeals.
Instead, the parties should wait for the arbitration panel to clarify its decision
upon remand, and then they may seek one appeal of the entire proceeding
based on the clarified award, raising all of their complaints in a single appeal.
See, e.g., Jays Foods, 208 F.3d at 613 (explaining that a district court’s order
remanding a case to the arbitration panel was not a final, appealable order
when “the purpose of the remand was merely to enable the arbitrator to clarify
his decision in order to set the stage for informed appellate review.” (internal
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citation omitted)). Accordingly, our interest in preserving judicial resources by
avoiding piecemeal appeals obligates us to decline jurisdiction in this case.
Finally, declining jurisdiction over the district court’s order and
permitting the arbitration panel to clarify its award is necessary given our
deferential standard of review of arbitration awards. Although “[t]he
arbitrator’s award is not subject to judicial review on the merits,” a “remand to
the arbitrator is the appropriate disposition of an enforcement action when an
award is patently ambiguous, [or] when the issues submitted were not fully
resolved.” Oil, Chem. & Atomic Workers Int’l Union, Local 4-367 v. Rohm &
Haas, Texas Inc., 677 F.2d 492, 495 (5th Cir. 1982); see also Brown v. Witco
Corp., 340 F.3d 209, 216 (5th Cir. 2003) (“A court is not authorized to review
the merits of the arbitrator’s decision . . . [but] if the arbitration award in
question is ambiguous in its scope or application, it is unenforceable.”).
Here, the district court found that the panel exceeded its authority by
failing to adhere to the parties’ bargained-for contractual provision requiring
the arbitrators to explain their award with “factual findings and conclusions.”
Nuance contends, however, that there were sufficient findings of fact in the
panel’s award to conclude that the panel implicitly denied any of Vocada’s out-
of-pocket losses. Nuance supports its argument with this Court’s deferential
standard of review: “In deciding whether the arbitrator exceeded its authority,
we resolve all doubts in favor of arbitration.” Executone Info. Sys., Inc. v. Davis,
26 F.3d 1314, 1320 (5th Cir. 1994). This Court has held, however, that “[a]
court may not interpret the award in order to resolve the ambiguity and
implement the award; instead, the court must remand the award to the
arbitrator with instructions to clarify the award’s particular ambiguities.”
Brown, 340 F.3d at 216. Accordingly, declining to exercise appellate
jurisdiction over the district court’s nonfinal order remanding this case back to
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the arbitration panel for further clarification is fully supported by our
deferential standard of review.
CONCLUSION
Since the district court neither confirmed nor vacated the arbitration
award we have no statutory ground for appellate jurisdiction under the FAA.
See 9 U.S.C. § 16(a)(1)(D)–(E). Moreover, Forsythe precludes appellate
jurisdiction when an order remands a case back to the arbitrators for further
clarification of an existing award. For these reasons, we DISMISS this appeal
for lack of jurisdiction.
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JONES, Circuit Judge, dissenting.
Because it is wrong to consider the district court’s order as non-final and
therefore not immediately appealable, and because mischief will come of this
error, I respectfully dissent.
The standard meaning applies to the term “final decision” where the
FAA makes “a final decision with respect to an arbitration” immediately
appealable. 9 U.S.C. § 16(a). When Congress enacted this provision,
commentators interpreted it as adopting the pre-existing finality doctrine.
15B Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 3914.17 (2d ed.
1992) (concluding that the “obvious interpretation” of § 16(a) “is that it
incorporates the finality doctrine”). In Green Tree Fin. Corp.-Ala. v. Randolph,
the Supreme Court affirmed this view. Green Tree, 531 U.S. 79, 86, 121 S. Ct.
513, 519 (2000) (construing “final decision” according to its “well-established
meaning”). Under Green Tree, a decision relating to an arbitration is final if it
“ends the litigation on the merits and leaves nothing more for the court to do
but execute the judgment.” Id. Further, a final decision is immediately
appealable “regardless of whether the decision is favorable or hostile to
arbitration.” Id.
Here, the district court’s ruling resolved the entire case before it. The
court ruled on the only ground of relief presented to it and concluded that the
arbitrator did not resolve the question of out-of-pocket damages. It remanded
the award because the arbitration panel “exceeded its powers” under 9 U.S.C.
§ 10(a)(4). It did not determine that the award may be silent on the issue of
out-of-pocket damages and defer its final ruling until the arbitrator clarified
the meaning of certain sections of its opinion. The district court certainly
thought that its work was done. It closed the case, issued a “Final Judgment,”
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and did not stay the action or retain jurisdiction over the case after the remand.
See Saturn Distribution Corp. v. Paramount Saturn, Ltd., 326 F.3d 684, 686-
87 (5th Cir. 2003) (holding that an order was final for these identical reasons).
Even if the district court’s ruling meant that the arbitrator had more work to
do, the court’s work was done, which is what matters for the purposes of FAA
finality under Green Tree. Green Tree, 531 U.S. at 86, 121 S. Ct. at 519 (holding
that a decision is final “when it leaves nothing more for the court to do”)
(emphasis added).
The majority asserts that under Green Tree, a district court must dismiss
a case “with prejudice” in order for a remand order to be a final decision.
Although the district court in Green Tree dismissed plaintiff’s claims on
account of a binding arbitration provision, the Supreme Court did not hold that
a formal order of dismissal with prejudice is a sine que non of finality. Instead,
it defined “final decision” consistent with that term’s “well-developed and
longstanding meaning” as “a decision that ‘ends the litigation on the merits
and leaves nothing more for the court to do but execute the judgment.’” Id. at
86, 121 S.Ct. at 519 (citing cases); see also 19 MOORE’S FEDERAL PRACTICE §
201.10 (3d ed. 2014) (“Essentially, a final decision is one that ends the litigation
on the merits so that the only thing left for the district court to do is to execute
the judgment.”). Where, as here, a remand order ends the litigation before the
district court, Green Tree clearly provides for appellate jurisdiction over the
case. 1
The district court’s denial of Nuance’s motion to dismiss, noted by the majority, is
1
irrelevant to the finality question. Nuance moved to dismiss for improper venue on the
grounds that the forum-selection clause in the parties’ merger agreement barred Murchison
from litigating the arbitration award outside of any court within the State of New York. The
outcome of that jurisdictional motion could not possibly affect whether the district court’s
order granting Murchison’s remand petition was a final order.
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The majority also errs in concluding that appellate jurisdiction is lacking
under Forsythe’s dicta that an order of remand for the purpose of clarifying an
arbitral award is not appealable. Forsythe v. Gibbs, 915 F.2d 1017, 1020 n.1
(5th Cir. 1990). Even if not dicta, Forsythe predates Green Tree by a decade.
Under Green Tree, an order remanding an arbitral award for clarification that
leaves the district court “nothing more . . . to do but execute the judgment” is
final. Green Tree, 531 U.S. at 86, 121 S. Ct. at 519. By contrast, a remand
order for clarification that leaves the court something to do once it has received
the requested clarification is not final. Id.
A notable example of a non-final clarification order is Hanford Atomic
Metal Trades Council, AFL-CIO v. General Elec. Co., 353 F.2d 302 (9th Cir.
1965), the case that Forsythe cites to support its dicta. See Forsythe, 915 F.2d
at 1020 n.1. In Hanford, the district court, faced with a question concerning
the construction of an arbitral award, entered an interim judgment ordering
the parties to present the dispute over the meaning of the award to the
arbitrator. Hanford, 353 F.2d at 305. After the arbitrator concluded its review
on remand, the district court, which had retained jurisdiction over the case,
entertained the clarified opinion and entered final judgment. Id. at 305-06.
There is a clear difference between the case before us and Hanford.
First, no interim order was issued here. As noted earlier, the district court
did not defer its final ruling, as in Hanford, until the arbitrator clarified the
arbitral award and opinion. It issued a final order that the arbitration panel
had not resolved the claim for out-of-pocket damages and thereby exceeded its
powers under the FAA § 10(a)(4). Second, the district court neither retained
jurisdiction nor otherwise indicated that it would resolve any disputes arising
over the new order. We must presume that the district court no longer has
jurisdiction over this dispute. See Jay’s Foods, L.L.C. v. Chem. & Allied Prod.
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Workers Union, Local 20, AFL-CIO, 208 F.3d 610, 613 (7th Cir. 2000)
(indicating that that jurisdiction is presumably lost on remand unless
expressly retained). In sum, the clarification order here ended the district
court’s work, which makes it a final order under Green Tree.
The other cases cited by the majority also fail to defeat appellate
jurisdiction. The majority invokes Jay’s Foods’s dicta about the non-
appealability of remand orders that merely seek to clarify an award. It
neglects to mention, however, that the Seventh Circuit went to considerable
lengths in Jay’s Foods to acknowledge that a previous appellate panel had
erred when it found no appellate jurisdiction over the remand order at issue in
the case. Jay’s Foods, 208 F.3d at 612 (reasoning that the earlier panel was
mistaken “in thinking that the district court’s order of remand was not
immediately appealable.”); 15B Wright & Miller, FEDERAL PRACTICE AND
PROCEDURE § 3914.17 n.51 (2d ed. Supp. 2014) (explaining that the court in
Jay’s Foods “observed that it been wrong to dismiss the union’s initial appeal
from the remand order on the theory that it was not final”). Similarly, the
majority relies on dicta in V.I. Hous. Auth. v. Coastal Gen. Constr. Servs. Corp.,
although that court devoted the lion’s share of its jurisdictional discussion to
explaining why the district court’s order vacating and remanding the arbitral
award was immediately appealable. V.I. Hous. Auth., 27 F.3d 911, 913-14 (3d
Cir. 1994). Our decision should not be controlled by mere dicta, especially in
the face of Green Tree.
In only one of the majority’s cases, Landy Michaels Realty Corp. v. Local
32B-32J, Service Employees Int’l Union, did the court rule against appellate
jurisdiction. But Landy is distinguishable. In Landy, the non-finality of the
remand order was underscored by the fact that the district court retained
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jurisdiction over the case. Landy, 954 F.2d 794, 195 (2d Cir. 1992). Here, the
district court, without retaining jurisdiction, left no unfinished business.
Although it is difficult to tell exactly what effect it will have, the majority
opinion does not bode well for arbitration. On one hand, a party that prevails
at arbitration and fears that a district court will remand the arbitral award for
clarification need only cross-move to confirm the award. Under the FAA, an
order confirming or denying confirmation of the award, even in part, is
immediately appealable. See 9 U.S.C. § 16(1)(D). Had Nuance cross-moved to
confirm the entire award here, the district court might have denied
confirmation for the same reason that it remanded the arbitral award—namely
for exceeding the panel’s authority.
On the other hand, any court might refuse to rule on a motion to confirm
in the belief that it could not finally decide without a complete arbitration
award. Rather than order an interim remand for clarification, however, a court
may choose, as here, to wash its hands of the case with a fully dispositive order.
Accordingly, the majority’s refusal to accept jurisdiction here will encourage
the proliferation of requests for “remand” precisely because (a) such orders are
not appealable under this ruling, and (b) the cost and delay associated with
such maneuvers may prompt settlements at odds with the arbitration awards.
The majority has opened the door to an outcome that is inconsistent with the
policy favoring expeditious arbitration behind the FAA. See Brown v. Pac. Life
Ins. Co., 462 F.3d 384, 392 n.5 (5th Cir. 2006) (explaining that the statute’s
general purpose). When parties must ping pong back and forth between the
arbitrator and the court, arbitration’s essential virtue as a speedy and efficient
dispute resolution tool is lost.
Reaching the merits, as I would, it seems obvious that the district court
erred in concluding that the arbitration panel exceeded its authority. Contrary
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to what the majority states, there is no ambiguity in the arbitration opinion.
The panel resolved all claims brought by the Vocada investors.
As a general matter, an arbitrator has no obligation to explain the
grounds for a take-nothing award. Brabham v. A.G. Edwards & Sons Inc., 376
F.3d 377, 385 (5th Cir. 2004) (providing that arbitrators need not give reasons
for their awards). Here, however, the parties modified the default rule when
they stipulated that the award must be supported by written findings of fact
and conclusions of law. Nevertheless, in determining whether the arbitral
award complies with this requirement, our review remains “exceedingly
deferential.” Rain CII Carbon, LLC v. ConocoPhillips Co., 674 F.3d 469, 472
(5th Cir. 2012). The sole question is “whether the arbitrator (even arguably)
interpreted the parties’ contract, not whether he got its meaning right or
wrong.” Oxford Health Plans v. Sutter, 133 S. Ct. 2064, 2068 (2013). We must
sustain the award as long as the arbitrator’s decision essentially applies the
underlying contract, and resolve all doubts in favor of arbitration. Timegate
Studios, Inc. v. Southpeak Interactive, L.L.C., 713 F.3d 797, 802 (5th Cir. 2013).
The issue on appeal is whether the arbitration panel resolved the Vocada
investors’ claim for out-of-pocket damages. 2 These damages represent the
difference between the $24 million up-front payment and Vocada’s actual
market value at the time of the merger. Significantly, the investors presented
only a single evidentiary basis for these damages at arbitration: the testimony
of its former owners that the company’s actual market value was ten times
revenues—approximately $40 million—as a result of its projected sales.
2The parties do not dispute that the panel addressed and rejected the investors’ only
other claim for damages—namely, that they were entitled to $21 million in “earnout”
consideration under the merger agreement.
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In response to all of the investor claims, and after taking testimony for
two weeks, a well-credentialed three-person panel wrote a thirty-page, single-
space opinion justifying a take-nothing decision. The opinion is fulsomely
grounded in the facts and law. Among its many findings, the panel found that
Vocada overestimated its future revenue stream from its customer base and
deal pipeline. The panel found that Vocada’s deals in progress generated only
$1 million after the merger instead of the $10 million projected, and that
revenues from contract renewals fell sharply after the merger, contrary to the
parties’ expectations.
The investors contend that these findings are insufficient because they
focus on Vocada’s performance after the merger, not on its value at the time of
the merger, which is the basis for their out-of-pocket damages claim. But their
sole argument to the arbitration panel was that Vocada’s actual value at the
time of the merger was greater than the up-front payment because of the
company’s expected sales growth (the “attractive revenue ramp,” in the words
of Vocada’s owner). The panel squarely rejected this argument in finding that
Vocada had significantly overestimated its future sales, the critical factor
driving Vocada’s valuation at the time of the merger. Thus, the panel vitiated
the out-of-pocket damage claim even if it did not mention this claim by name
when it concluded that “Vocada shall take nothing on its claims” and “[t]his
Award is in full settlement of all claims and counterclaims submitted to this
Arbitration.” (emphasis added). The panel’s detailed findings fully resolved
the dispute over whether Vocada’s shareholders suffered damages as a result
of Nuance’s alleged fraud. Under the “exceedingly deferential” standard that
appellate courts apply to unambiguous awards, the take-nothing award should
be sustained.
For these reasons, I respectfully dissent.
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