OOGC America, L.L.C. v. Chesapeake Exploration, L. ( 2020 )

Case: 19-20002 Document: 00515563678 Page: 1 Date Filed: 09/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20002 September 14, 2020
Lyle W. Cayce
Clerk
OOGC AMERICA, L.L.C.,
Plaintiff – Appellee,
v.
CHESAPEAKE EXPLORATION, L.L.C.,
Defendant – Appellant.
--------------------------------------------------------------
Consolidated with 19-20003
OOGC AMERICA, L.L.C.,
Plaintiff – Appellee,
v.
CHESAPEAKE EXPLORATION, L.L.C.,
Defendant;
D. PATRICK LONG,
Movant – Appellant.
Appeals from the United States District Court
for the Southern District of Texas
Case: 19-20002 Document: 00515563678 Page: 2 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
This consolidated appeal concerns an arbitration dispute between two oil
and gas companies, OOGC America, L.L.C. and Chesapeake Exploration,
L.L.C. OOGC brought the lawsuit to vacate two arbitration awards favoring
Chesapeake on the basis of an arbitrator’s failure to disclose connections with
certain non-parties. The district court vacated the awards, and Chesapeake
appeals. The arbitrator, Patrick Long, appeals the district court’s denial of his
motion to intervene and also seeks leave to intervene on Chesapeake’s appeal
in order to protect his reputational interest. We VACATE the district court’s
arbitration ruling and REMAND the action with instructions to confirm the
arbitration awards within thirty days of the issuance of the mandate. We
AFFIRM the district court’s denial of Long’s motion to intervene and DENY
AS MOOT his motion to intervene on appeal.
I.
Chesapeake is an Oklahoma LLC with headquarters in Oklahoma.
OOGC is a Delaware LLC with its headquarters in Texas. In late 2010 and
early 2011, Chesapeake sold OOGC partial interests in two oil and gas
properties. Soon, a contract dispute arose out of two Development Agreements
and a pair of accompanying Joint Operating Agreements (collectively, “the
Agreements”) between the two that governed their joint venture. 1
The Agreements provided that Chesapeake, as the operator, would pay
the expenses up front and then charge the expenses to a joint account. Then
Chesapeake would bill OOGC for its proportionate share of the costs. The
Agreements permitted Chesapeake to bill work performed by “affiliates” or
“related parties” to the joint account, but required that such work must be
1 The two sets of agreements are functionally identical.
2
Case: 19-20002 Document: 00515563678 Page: 3 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
compensated “at competitive rates that do not exceed the prevailing rates in
the area.”
The Agreements also established that any dispute would be resolved
through arbitration and provided guidelines by which that arbitration would
be conducted. One such guideline stated that an arbitrator must not have
performed material work for affiliates within the preceding five years. Another
required that the arbitration be conducted by a panel of three arbitrators in
accordance with the American Arbitration Association (“AAA”) rules.
In 2014, OOGC became concerned that Chesapeake was overbilling it by
compensating affiliates and related parties at rates higher than the prevailing
market rate and charging those expenses to the joint account. In early 2016,
after the parties failed to reach an agreement on the matter, OOGC initiated
arbitration, seeking damages of $185–210 million. OOGC’s arbitration
demand pleaded two breach of contract claims. First, it claimed breach of
Section 7.7 of the Agreements, which required quarterly reporting by
Chesapeake on work done by Chesapeake’s affiliates. Second, it claimed
breach of Article V.D.1 of an addendum to the Agreements, which governed
market pricing and charges to the joint account.
OOGC had the first chance to select an arbitrator and picked then-Locke
Lord partner J. Robert Beatty. Chesapeake went next and picked Squire
Patton Boggs partner D. Patrick Long. Beatty and Long together picked the
third arbitrator and panel chairman, Wyoming litigator Donald I. Schultz.
Each arbitrator supplied disclosures to the AAA, and neither party objected to
any arbitrator. Long’s disclosures did not include mention of a non-party
company called FTS.
The arbitration schedule provided for four hearings, divided by topic. In
the first hearing, the panel considered OOGC’s Section 7.7 claim, concluding
that Chesapeake breached its reporting duties under that section. The panel
3
Case: 19-20002 Document: 00515563678 Page: 4 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
also addressed the threshold question of whether FTS—one of the companies
whose rates OOGC challenged—was a Chesapeake affiliate. The panel
unanimously found that FTS was not a Chesapeake affiliate because FTS had
never been under Chesapeake’s control.
In the second and third hearings, the panel considered OOGC’s Article
V.D.1 claim. OOGC argued that FTS was a “related party” under the
Agreements, that the market rate requirement for related parties was identical
to the requirement for affiliates, and that Chesapeake compensated FTS at
rates higher than the market rate. The panel unanimously concluded that,
even assuming arguendo that FTS was a related party and that the market
rate requirements for affiliates and related parties were identical, the rates at
which Chesapeake compensated FTS met the market rate requirement.
Although the panel ruled for OOGC on several other issues, it ultimately
concluded that Chesapeake did not overbill the joint account for work
performed by its affiliates and related parties under Article V.D.1.
About a month and a half later, OOGC filed an action in state court in
Harris County, Texas, seeking to vacate the panel’s awards. Specifically,
OOGC complained that Long had failed to disclose his relationship with Yon
Siang Goh, chairman of FTS’s board of directors. Chesapeake removed the
case to federal court on the basis of diversity of citizenship and asked the
district court to affirm the awards.
In February 2017, OOGC filed an “Amended Motion to Vacate
Arbitration Awards.” In the motion, OOGC argued that the awards should be
vacated because Long’s connections to FTS showed “evident partiality” under
9 U.S.C. § 10(a)(2) and “misbehavior by which the rights of a[] party have been
prejudiced” under § 10(a)(3). In addition to his connections to Goh, OOGC
alleged that Long had connections to Goh’s daughter Jolene and FTS’s general
counsel Jennifer Keefe, both of whom had previously worked at Long’s law
4
Case: 19-20002 Document: 00515563678 Page: 5 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
firm. The next day, the district court stayed the arbitration awards pending
further proceedings.
Meanwhile, with the fourth arbitration hearing looming, OOGC
complained about Long to the AAA. In response, the AAA asked Long for
additional disclosures about his connections to Goh and Keefe. Long disclosed
that Keefe formerly worked at Squire Patton Boggs, that the two had worked
on numerous cases together, and that they remained friends after she left to
join FTS. Once at FTS, Keefe retained Long to represent the company in two
oil and gas matters. Long also disclosed that he and Goh had been business
partners until 2010. 2
The AAA concluded that Long should be removed from the panel. In lieu
of appointing a new arbitrator, Chesapeake suggested that Shultz and Beatty
simply proceed as a quorum, pursuant to AAA rules. Shultz and Beatty agreed.
OOGC then asked the panel to postpone arbitrating the remaining
claims pending resolution of their claims in the district court. The panel denied
the motion. OOGC then moved in the district court to enjoin or stay the
arbitration proceedings, and the district court granted the motion.
No rulings were issued by the district court through the remainder of
2017 and most of 2018, despite several unopposed requests from OOGC for a
ruling or status conference. Then, in December of 2018, the district court
vacated the arbitration awards with an opinion titled “Opinion on Arbitration
Corruption.” The district court concluded that OOGC satisfied the “evident
partiality” standard under § 10(a)(2), stating that “[w]hen [Long] claimed that
he did not have professional or social connections with the parties or witnesses,
2 The parties dispute the number and nature of Long and Goh’s prior business
dealings. Resolution of that dispute is unnecessary for the disposition of this appeal.
5
Case: 19-20002 Document: 00515563678 Page: 6 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
he lied.” The opinion erroneously referred to Long as the arbitration panel’s
chairman and drew attention to what it termed his “deceit,” and “corrupt[ion].”
Later that month, after learning of the district court’s comments about
him, Long filed an “Emergency Motion to Intervene” under Federal Rule of
Civil Procedure 24. In the motion, Long argued that intervention was
necessary to protect “his reputation for veracity and integrity, which has been
harmed by the Opinion’s statements that he is a liar and corrupt.” He provided
a declaration with his account of the facts, stating that he had no connection
to the parties, and that the other individuals he was accused of having close
relationships with were neither parties nor witnesses in the arbitration, and
had no stake in the arbitration’s outcome.
On December 28, 2018, Chesapeake appealed from the final judgment.
Later that day, the district court denied Long’s motion to intervene. Long then
appealed that denial. He also filed a motion to intervene on appeal. We stayed
the district court’s judgment pending resolution of the appeal.
II.
This court reviews an order affirming or vacating arbitration awards de
novo, “using the same standards that apply to the district court.” 21st Fin.
Servs., L.L.C. v. Manchester Fin. Bank, 747 F.3d 331, 335 (5th Cir. 2014). “We
accept findings of fact that are not clearly erroneous . . . .” Hughes Training
Inc. v. Cook, 254 F.3d 588, 592 (5th Cir. 2001).
Review of the arbitration awards themselves is limited in order to “give
deference to the decisions of the arbitrator.” Manchester, 747 F.3d at 335.
Judicial review of an arbitration award “is extraordinarily narrow” and we
“defer to the arbitrator’s decision when possible.” Antwine v. Prudential Bache
Secs., Inc., 899 F.2d 410, 413 (5th Cir. 1990). In a dispute over an arbitration
award, “[t]he burden of proof is on the party seeking to vacate the award, and
6
Case: 19-20002 Document: 00515563678 Page: 7 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
any doubts or uncertainties must be resolved in favor of upholding it.” Cooper
v. WestEnd Capital Mgmt., L.L.C., 832 F.3d 534, 544 (5th Cir. 2016).
We review a district court’s denial of a motion to intervene as of right de
novo. Taylor Commc’ns Grp., Inc. v. Sw. Bell Tel. Co., 172 F.3d 385, 387 (5th
Cir. 1999). We review a district court’s denial of permissive intervention for
clear abuse of discretion. Edwards v. City of Houston, 78 F.3d 983, 995 (5th
Cir. 1996) (en banc).
III.
A.
Chesapeake argues that the district court erred by vacating the
arbitration awards for “evident partiality” under 9 U.S.C. § 10(a)(2). We agree.
The test for evident partiality in nondisclosure cases in the Fifth Circuit
is set out in Positive Software Solutions, Inc. v. New Century Mortgage Corp.,
476 F.3d 278 (5th Cir. 2007) (en banc). In Positive Software, we stated that an
arbitrator’s nondisclosure must involve a “reasonable impression of bias”
stemming from “a significant compromising connection to the parties” in order
for vacatur to be warranted under § 10(a)(2). Id. at 283. This “stern standard”
requires “a concrete, not speculative impression of bias” and calls for
“upholding arbitral awards unless bias was clearly evident in the
decisionmakers.” Id. at 281, 286. Indeed, “for the arbitration award to be
vacated,” the party challenging the award “must produce specific facts from
which a reasonable person would have to conclude that the arbitrator was
partial to” its opponent. WestEnd, 832 F.3d at 545 (emphasis added).
Here, Chesapeake argues that FTS had no stake in the outcome of any
of the arbitration proceedings, and therefore that Long’s relationship with FTS
did not amount to a “significant compromising connection to the parties.”
Positive Software, 476 F.3d at 283. FTS was not a party or witness in the
arbitration, and OOGC’s Article V.D.1 claim that Chesapeake compensated
7
Case: 19-20002 Document: 00515563678 Page: 8 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
FTS too highly in the past could only—at most—have resulted in damages
against Chesapeake, not FTS. In other words, says Chesapeake, the issue was
whether Chesapeake could properly charge the joint account for the rates it
had paid FTS, not whether FTS could retain the rates it had already received
for its work. 3 Similarly, OOGC’s Section 7.7 claim that Chesapeake had
certain reporting obligations vis-à-vis FTS imposed no requirements on FTS
itself. Thus, argues Chesapeake, Long’s relationship with FTS did not
incentivize him to rule in the favor of FTS or any party.
OOGC offers two reasons that Long was incentivized to rule in
Chesapeake’s favor, but both fall short of the “concrete, not speculative”
showing of a significant, compromising connection to the parties required for
vacatur under § 10(a)(2). Id. at 286.
OOGC’s first argument is that Long was incentivized to conclude that
FTS was not a Chesapeake affiliate because the Agreements stated that
qualified arbitrators must not “have performed material work” for an affiliate
within the five-year period prior to initiation of arbitration. Because Long had
represented FTS within that period, a conclusion that FTS was an affiliate
would have disqualified him from sitting on the panel. Thus, says OOGC, Long
was put in a position to decide his own status as a member of the panel—a
decision that implicated his financial interest in continuing his employment as
an arbitrator in the matter.
In context of the panel’s overall decision-making, this theory of Long’s
bias in favor of Chesapeake is more “speculative” than “concrete,” id. As an
initial matter, Long was not directly faced with the question of his ability to
arbitrate. His vote on the question of whether FTS was an affiliate only
indirectly bore on his status as an arbitrator through a wholly different
3 FTS had ceased performing work for Chesapeake by the time of the arbitration.
8
Case: 19-20002 Document: 00515563678 Page: 9 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
provision of the Agreements. OOGC must speculate that, at the time of the
panel’s affiliate ruling, Long was aware of the provision of the Agreements
concerning arbitrators’ past work for affiliates—a provision that no party
raised at the time.
Moreover, the panel’s conclusion that FTS was not a Chesapeake affiliate
was rendered essentially meaningless by the panel’s assumption (in OOGC’s
favor) that the same market rate requirements that applied to affiliates also
applied to FTS. The panel determined that, even assuming that FTS was
covered by the affiliate rules, OOGC’s Article V.D.1 overcompensation claim
failed anyway because Chesapeake properly compensated FTS under the
Agreements. 4 The lack of import of the panel’s affiliate conclusion militates
against OOGC’s theory that Long’s connection to FTS constituted a “significant
compromising connection to the parties.” Id. at 283. 5
Perhaps recognizing the uphill climb it faces to surmount the Positive
Software nondisclosure standard, OOGC attempts to analogize this case to an
out-of-circuit case that does not implicate nondisclosure: Pitta v. Hotel
Association of New York City, 806 F.2d 419 (2d Cir. 1986). In the “rare[]”
circumstances at issue in Pitta, Millard Cass received an employment
agreement appointing him to arbitrate a dispute. Id. at 421. One of the parties
4As to the reporting requirements under Section 7.7, OOGC has explained that they
merely “allow OOGC to meaningfully verify and, if necessary, contest Chesapeake’s Affiliate
charges to the joint account.” And the panel had already declined to award OOGC any
equitable relief for violations of Section 7.7.
5 OOGC argues that Chesapeake waived this argument because it discussed Long’s
alleged incentive to rule that FTS was not an affiliate in order to remain on the panel in the
section of its brief dealing with Pitta v. Hotel Association of New York City, 806 F.2d 419 (2d
Cir. 1986), not the section of its brief dealing with Positive Software. This amounts to an
invitation to penalize Chesapeake for failing to perfectly anticipate and mirror the structure
of OOGC’s response brief—an invitation we decline. Chesapeake clearly argued that this
alleged incentive was an insufficient ground for vacatur under § 10(a)(2).
9
Case: 19-20002 Document: 00515563678 Page: 10 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
subsequently notified Cass that it was “terminating [his] appointment.” Id.
The other party protested and asked Cass to arbitrate the issue of “whether he
had been validly dismissed” under his employment contract. Id. In the
resulting litigation, the Second Circuit determined that there was evident
partiality under § 10(a)(2) 6 because Cass was asked “to interpret his own
contract of employment” to “determine[] the validity of his own dismissal from
a lucrative position.” Id. at 420, 424. In doing so, the Second Circuit recognized
the unusual nature of the dispute, calling it “rarely litigated.” Id. at 420.
Pitta is a poor analogue to the present case. Unlike Cass, Long was not
asked to decide whether his own status as an arbitrator was valid. Instead, he
was asked to determine whether FTS was an affiliate of Chesapeake. Although
that question incidentally bore on his ability to arbitrate via a separate
provision of the Agreements, Long did not sit in judgment of that separate
question. This takes the present case outside the ambit of the “rarely litigated”
circumstances in Pitta. Indeed, expanding Pitta to bar arbitrators from
deciding questions that only indirectly bear on their ability to arbitrate would
risk the very “proliferat[ion]” of “[e]xpensive satellite litigation over . . . an
arbitrator’s ‘complete and unexpurgated business biography’” that this court
sought to avert in Positive Software. 476 F.3d at 285 (quoting Commonwealth
Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 151 (1968) (White, J.,
concurring)).
OOGC’s second argument is that Long was incentivized to rule in ways
that benefitted FTS, Goh, and Keefe because that would increase his chances
of receiving future legal work from FTS. It argues that the panel’s ruling that
FTS was not a Chesapeake affiliate aided FTS because it meant Chesapeake
did not have to turn over FTS’s pricing information to OOGC. It further argues
6 The Pitta court cited to § 10(b), which was then the evident partiality provision.
10
Case: 19-20002 Document: 00515563678 Page: 11 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
that the panel’s affiliate ruling aided FTS because it meant FTS’s future rates
would not be subject to caps on affiliate rates set out in the Agreements.
This theory also falls short of a showing of “specific facts from which a
reasonable person would have to conclude that the arbitrator was partial to” a
party. WestEnd, 832 F.3d at 545 (quoting Householder Grp. v. Caughran, 354
F. App’x 848, 852 (5th Cir. 2009)). OOGC begins by speculating that FTS
would be harmed by OOGC receiving its pricing information, that FTS would
actually perform any future work for Chesapeake under the Agreements, and
that the affiliate rate cap would not also apply to FTS as a related party. 7
Adding speculation to speculation, OOGC hypothesizes that these possible,
incidental harms to FTS flowing from a unanimous arbitration panel ruling
would make Long think that he needed to rule in FTS’s favor or else it would
take him personally to task by declining to retain him in future matters. 8 This
is simply too much conjecture. 9 Accepting OOGC’s argument would create an
“incentive to conduct intensive, after-the-fact investigations to discover the
most trivial of relationships,” undercutting the purpose of arbitration “as an
efficient and cost-effective alternative to litigation.” Positive Software, 476
F.3d at 280, 285.
7OOGC itself argued—and the panel assumed to be true for purposes of its rate
decision—that related parties were subject to the same rate cap as affiliates under the
Agreements.
8 Interestingly, Long had previously performed work adverse to Chesapeake—a fact
that did not deter Chesapeake from appointing him to the arbitration panel.
9OOGC moves on appeal for this court to take judicial notice of facts concerning work
Long has done for FTS, contending that these facts support its argument that Long
“enhance[d] his prospects for future legal work” by ruling for Chesapeake. We deny the
motion. Even if we were to grant it, the facts provided do not change our conclusion that
OOGC’s theory about Long’s partiality is too speculative.
11
Case: 19-20002 Document: 00515563678 Page: 12 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
In sum, OOGC has not shown evident partiality under § 10(a)(2). The
district court erred in reaching the contrary conclusion.
B.
OOGC urges that—even if there is no evident partiality—we should
affirm the vacatur under 9 U.S.C. § 10(a)(4) and this court’s decision in PoolRe
Insurance v. Organizational Strategies, Inc., 783 F.3d 256 (5th Cir. 2015). We
disagree. 10
Section 10(a)(4) permits vacatur “where the arbitrators exceeded their
powers.” 9 U.S.C. § 10(a)(4). In PoolRe, the arbitration agreement at issue
mandated that the arbitrator be “selected by the Anguilla, B.W.I. Director of
Insurance.” 783 F.3d at 263. The arbitrator who presided over the proceedings
in PoolRe “was not appointed by the Director of Insurance.” Id. Because “[t]he
power and authority of arbitrators in an arbitration proceeding [are]
dependent on the provisions under which the arbitrators were appointed,” and
the arbitrator in PoolRe “had not been ‘selected according to the contract-
specified method,’” we determined that he had exceeded his powers under
§ 10(a)(4). Id. at 263–64 (second alteration in original) (first quoting Brook v.
Peak Int’l, Ltd., 294 F.3d 668, 672 (5th Cir. 2002); then quoting Bulko v.
Morgan Stanley DW Inc., 450 F.3d 622, 624 (5th Cir. 2006)).
10 Both parties insist that the other party waived the § 10(a)(4) issue. OOGC argues
that Chesapeake waived the issue by not raising it in its opening brief. See United States v.
Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008) (“An appellant that fails to adequately brief an
issue in his opening brief waives that issue.”). But, as Chesapeake points out, OOGC did not
cite § 10(a)(4) in its motion to vacate in the district court, instead only raising it in a footnote
in its motion to enjoin the arbitration proceedings. And “arguments raised in a perfunctory
manner, such as in a footnote, are waived.” Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345
F.3d 347, 356 n.7 (5th Cir. 2003) (quoting United States v. Hardman, 297 F.3d 1116, 1131
(10th Cir. 2002)). While the failure of OOGC’s § 10(a)(4) argument on the merits absolves us
of the need to determine whether OOGC waived the issue, OOGC’s placement of the
argument in a solitary footnote in the district court certainly militates against the conclusion
that Chesapeake waived the issue by not addressing § 10(a)(4) in its opening brief.
12
Case: 19-20002 Document: 00515563678 Page: 13 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
OOGC argues that Long exceeded his powers here because he violated
“the contractual requirement that he be ‘neutral’” given that “(1) he had
represented alleged Chesapeake ‘Affiliate’ FTS one year before the arbitration,
and (2) the arbitration provision prohibits one from sitting as arbitrator if he
had done material work for a Chesapeake ‘Affiliate’ within five years before
the arbitration.” But this is a gripe about an arbitrator’s qualifications to
serve, not a failure to select an arbitrator according to the terms of the contract.
And OOGC admits, as it must, that we have treated arbitrator-selection cases
like PoolRe as “distinguishable” from arbitrator-qualifications cases like this
one. Bulko, 450 F.3d at 625. Indeed, it points to no case in which we have held
that a failure to satisfy contractually specified qualifications warrants vacatur
under § 10(a)(4).
At any rate, the contract’s specification that arbitrators must be “neutral
parties” is not an expansive one. Instead, it appears to refer to the
qualifications set out in the remainder of the sentence: arbitrators must be
“neutral parties who have never been officers, directors or employees of the
Parties or any of their Affiliates, or have performed material work for either of
the Parties or its Affiliates within the preceding five (5) year period.” Thus,
Long’s work for FTS would only cause him to be unqualified under the contract
if FTS was, in fact, an affiliate.
The burden of proof is on OOGC to show that the unanimous panel’s
conclusion on this issue was erroneous, and it fails to persuasively do so. See
WestEnd, 832 F.3d at 544. The Agreements define affiliates as entities over
which a party “directly or indirectly” exercises “[c]ontrol.” All three arbitrators
on the panel reasonably determined that Chesapeake’s minority ownership
(“from 24% to 30%”) and board seats (“two members of a board that ranged
from five to seven members”) were insufficient evidence of “control.” And even
OOGC allows that the district court did “not apply[] the Agreements’ definition
13
Case: 19-20002 Document: 00515563678 Page: 14 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
of a capital-‘A’ ‘Affiliate,’ but rather apparently used its own, ‘common sense
definition’ under which an ‘affiliate’ relationship exists if ‘one person or entity
has a material interest in another.’”
Resolving all “doubts or uncertainties . . . in favor of upholding” the
awards, id., we conclude that OOGC has not shown an adequate basis for
vacatur under § 10(a)(4). Neither this conclusion nor our conclusion that
OOGC has not shown evident partiality under § 10(a)(2) is an endorsement of
Long’s actions. We merely determine that OOGC has not met the stringent
standards necessary to make “[t]he draconian remedy of vacatur” appropriate.
Positive Software, 476 F.3d at 286.
IV.
We now turn briefly to Long’s attempts to intervene in this case. He
asserts that the district court opinion “unfairly maligned his reputation” by
“calling him a liar and corrupt” and seeks leave to intervene “to demonstrate
his veracity, ethics, and integrity.”
A.
Long’s first motion to intervene was in the district court. The district
court denied the motion on its merits, but not until after Chesapeake had filed
its notice of appeal earlier that same day. Long appealed. We conclude that
the district court lacked jurisdiction to hear the motion. See Nicol v. Gulf Fleet
Supply Vessels, Inc., 743 F.2d 298, 299 (5th Cir. 1984) (“If an appeal is taken
from a judgment which determines the entire action, the district court loses
power to take any further action in the proceeding upon the filing of a timely
and effective notice of appeal, except in aid of the appeal or to correct clerical
errors under Rule 60(a). That is the general rule in this Circuit, and it has
been applied to motions for intervention.” (citation omitted)).
Long urges us to avoid this result by adopting the Ninth Circuit’s holding
in Long v. Bureau of Economic Analysis, 646 F.2d 1310 (9th Cir. 1981), vacated
14
Case: 19-20002 Document: 00515563678 Page: 15 Date Filed: 09/14/2020
No. 19-20002 c/w No. 19-20003
on other grounds, 454 U.S. 934 (1981) that “the district court was not divested
of jurisdiction” to rule on a motion to intervene where the notice of appeal and
district court order were filed “on the same day.” Id. at 1318–19; see also id. at
1319 (referring to such circumstances as mere “fortuity of the docketing”). We
decline to do so. The district court’s denial of the motion is therefore affirmed,
though on different grounds. See Nicol, 743 F.2d at 299 (“We affirm the denial
of intervention because the district court was without jurisdiction to rule upon
the [intervention] motion once [the plaintiff] had filed his notice of appeal.”).
B.
Long also moves to intervene as of right in this court under Federal Rule
of Civil Procedure 24(a)(2), as well as for permissive intervention under Rule
24(b)(1)(B). Long freely admits that he has no “preference in the outcome of
the parties’ dispute, for which he takes no position.” Instead, his wish is for
the court to “correct [certain alleged] factual misstatements” in the district
court’s opinion. But there is no cause to “correct” statements in a ruling that
is already being vacated. See Brockman v. Tex. Dep’t of Criminal Justice, 397
F. App’x 18, 24 (5th Cir. 2010) (“Because we . . . VACATE the portions of the
opinion below which concern [the proposed intervenor] . . . the motion to
intervene is denied as moot.”). Because this court is vacating the district
court’s decision for the reasons discussed supra, Long’s motion to intervene on
appeal is denied as moot.
V.
For the reasons stated, we VACATE the district court’s arbitration
ruling and REMAND the action with instructions to confirm the arbitration
awards within thirty days of the issuance of the mandate. We DENY OOGC’s
motion for judicial notice, AFFIRM the district court’s denial of Long’s motion
to intervene, and DENY AS MOOT Long’s motion to intervene on appeal.
15