OMG, L.P. v. Heritage Auctions, Inc. ( 2015 )

Case: 14-10403 Document: 00513035744 Page: 1 Date Filed: 05/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10403 United States Court of Appeals
Fifth Circuit
FILED
May 8, 2015
OMG, L.P.; JOHN GALLO; GREG MARTIN,
Lyle W. Cayce
Plaintiffs - Appellees
Clerk
v.
HERITAGE AUCTIONS, INCORPORATED,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-1404
Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*
PER CURIAM:**
Heritage Auctions, Inc. (“Heritage”) appeals the district court’s order and
judgment vacating an arbitration award against OMG, LP (“OMG”), John
Gallo, and Greg Martin. In the order accompanying its Judgment, the district
* District Judge for the Eastern District of Texas, sitting by designation.
**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10403 Document: 00513035744 Page: 2 Date Filed: 05/08/2015
No. 14-10403
court adopted the report and recommendation of the magistrate judge, who
found that “a court was the proper decision-maker as to contract formation
issues in this case, not the arbitrator.” We hold that the parties agreed to
arbitrate the issue of contract formation by submitting, briefing, and generally
disputing that issue throughout the arbitration proceedings, with the plaintiffs
never contesting the arbitrator’s authority to decide contract formation until
he issued an adverse award. By submitting issues for an arbitrator’s
consideration, parties may expand an arbitrator’s authority beyond that
provided by the original arbitration agreement such that we need not address
whether the original agreement encompassed such authority. See generally
Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’
Warehouse Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th
Cir. 1980). We therefore REVERSE the district court’s Judgment and
REMAND the case with instructions for the district court to confirm the
arbitration award.
I. Background
Heritage is a large and prominent auction house, boasting over $800
million in merchandise sales. OMG is the successor 1 of various entities that
have auctioned high-end firearms through the collaboration of Bernard Osher,
Greg Martin, and John Gallo. OMG and Heritage arrived in arbitration after
failing to resolve disagreements about the commissions OMG should receive
for sales of firearms and related merchandise made through Heritage’s auction
business. OMG and Heritage agreed to partner in selling this type of
merchandise through two agreements: (1) the Asset Purchase Agreement
1 Heritage actually transacted with Greg Martin Auctions, LP (“GMA”), of which OMG
is the successor. For simplicity’s sake, we will reference both entities as “OMG” throughout
this opinion.
2
Case: 14-10403 Document: 00513035744 Page: 3 Date Filed: 05/08/2015
No. 14-10403
(“APA”), under which OMG transferred all of its assets, including its name,
trademarks, customer information, and other items, to Heritage for $150,000;
and (2) the Consulting Agreement (“CA”), in which OMG agreed to consult for
Heritage in exchange for commissions on the sales of firearms and
“Merchandise.”
This case arose out of a dispute over the calculation of commissions and
the meaning of “Merchandise” under the CA. The CA never defines
“Merchandise,” but Exhibit A to the CA says that OMG and Martin “shall be
responsible for procuring . . . firearms and firearm related merchandise on
consignment for auction (the “Merchandise”), using their reasonable best
efforts.” OMG believed the CA entitled it to commissions for any firearms or
related merchandise sold by Heritage—broadly defined to include western art,
correspondence, and antique items—regardless of who procured the
merchandise. By contrast, Heritage believed the CA entitled OMG only to
commissions for items OMG procured—including firearms and narrowly-
related merchandise like bullets, bayonets, holsters, and like items. The
parties were unable to resolve these disputes themselves, so Heritage
terminated the CA and demanded arbitration to, among other things, resolve
the meaning of “Merchandise.”
Both the APA and CA contain arbitration clauses that mandate
arbitration of “[a]ny dispute or difference between the Parties hereto arising
out of or in any way related to this Agreement,” including “whether a valid
agreement to arbitrate has been made in the first instance and whether certain
disputes are subject to arbitration.” In resolving disputes, the arbitrator has
“the authority to grant any equitable and legal remedies that would be
available in any judicial proceeding.” The CA and APA were to be “construed
in accordance with the Laws of the State of Texas.”
3
Case: 14-10403 Document: 00513035744 Page: 4 Date Filed: 05/08/2015
No. 14-10403
At arbitration, Heritage argued, among other things, that there was no
“meeting of the minds” on the meaning of “Merchandise” or on how
commissions should be calculated and that the contract was therefore
unenforceable and should be rescinded. The arbitrator accepted this
argument, reasoning that the meaning of “Merchandise” and the calculation of
commissions were ambiguous and that there was no way to resolve the
ambiguity. Accordingly, the arbitrator found that the parties’ minds never met
and that a contract never existed. The arbitrator therefore cancelled the
contract, abrogating its unperformed portions and noting Heritage had
abandoned its claim to use OMG or Martin’s name and likeness and that it
could not restrict OMG or Martin from competing against it in the future.
OMG then filed suit in federal court, seeking to vacate the arbitration
award on the grounds that the arbitrator exceeded his authority, committed
prejudicial misconduct, ruled on a matter not submitted to him, and committed
a manifest error of law. Heritage responded with a motion to confirm the
award. Over Heritage’s objection, the district court adopted the magistrate
judge’s recommendation and vacated the award. The magistrate judge
reasoned that “a court was the proper decision-maker as to contract formation
issues in this case, not the arbitrator. By finding that the APA and the CA
never came into existence, the arbitrator intruded on an issue that was
reserved for an alternative decision-maker and thereby exceeded his
authority.” Heritage now appeals from the district court’s order and judgment
vacating the arbitration award and remanding the case to the arbitrator.
II. Standard of Review
“Our review of the district court’s confirmation or vacatur of an
arbitrator’s award is de novo.” Timegate Studios, Inc. v. Southpeak Interactive,
L.L.C., 713 F.3d 797, 802 (5th Cir. 2013) (citing Executone Info. Sys. v. Davis,
4
Case: 14-10403 Document: 00513035744 Page: 5 Date Filed: 05/08/2015
No. 14-10403
26 F.3d 1314, 1320 (5th Cir. 1994)). However, review of the arbitrator’s award
itself is highly deferential, and we “will defer to the arbitrator[’s] resolution of
the dispute whenever possible.” Anderman/Smith Operating Co. v. Tenn. Gas
Pipeline Co., 918 F.2d 1215, 1218 (5th Cir. 1990). “In deciding whether the
arbitrator exceeded [his] authority, we resolve all doubts in favor of
arbitration.” Executone, 26 F.3d at 1320.
III. Discussion
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16, constrains federal
courts to a narrow review of arbitration awards. See Hall Street Assocs. v.
Mattel, Inc., 552 U.S. 576, 586 (2008). A court may vacate an award only if the
award was procured by corruption, fraud, or undue means, the arbitrator was
evidently partial or corrupt, the arbitrator was guilty of misconduct, or the
arbitrator exceeded his or her powers. See id.; 9 U.S.C. § 10(a)(1)–(4); see also
Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009)
(holding that “manifest disregard of the law,” as an independent nonstatutory
ground for vacatur, did not survive the Hall Street holding). Before this court,
OMG argues that the arbitrator exceeded his authority in cancelling the
contract. OMG argues, first, that because the arbitrator found there was no
contract between OMG and Heritage, the arbitrator could not draw authority
from the CA and APA to decide the dispute. Second, OMG argues that because
the contract formation issue was not submitted to the arbitrator by either
party, OMG did not consent to arbitration of that issue. Heritage asserts that
the issue of contract formation was arbitrated by the consent of both parties
because Heritage submitted this issue to the arbitrator from the beginning,
arguing (in the alternative to its argument about the meaning of
“Merchandise”) that the parties’ minds never met and that the arbitrator
should rescind the contract.
5
Case: 14-10403 Document: 00513035744 Page: 6 Date Filed: 05/08/2015
No. 14-10403
“Arbitration is a matter of contract, and the FAA requires courts to honor
parties’ expectations.” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740,
1752 (2011). “However, once the parties have gone beyond their promise to
arbitrate and have actually submitted an issue to an arbiter, we must look both
to their contract and to the submission of the issue to the arbitrator to
determine his authority.” Piggly Wiggly, 611 F.2d at 584; see also Executone,
26 F.3d at 1323. Accordingly, by their actions, the parties may agree to
arbitrate disputes that they were not otherwise contractually bound to
arbitrate. Executone, 26 F.3d at 1323.
Throughout the arbitration proceedings, from the initial pleadings to the
post-arbitration briefing, the parties disputed whether there had been a
meeting of the minds and whether rescission of the contracts between them
would be an appropriate remedy. Heritage argued, first, that its interpretation
of the CA and APA should govern, and in the alternative, that the CA was
ambiguous such that there had been no meeting of the minds. In the latter
case, Heritage requested a rescission of the CA (but not the APA). OMG argued
(1) that the CA and APA were essentially one agreement and had to be
construed together; (2) that the CA and APA were not ambiguous, but
supported OMG’s interpretation; and (3) if the CA and APA were ambiguous,
parol evidence supported OMG’s interpretation, thereby making rescission an
inappropriate remedy. The parties clearly disagreed about how the arbitrator
should construe the contract and about what remedy would be most
appropriate in the event that the contracts’ terms proved ambiguous. We
conclude that Heritage sufficiently asserted that there had been no meeting of
the minds, and OMG never contested the arbitrator’s authority to resolve this
issue. Instead, OMG disputed the meeting of the minds issue. As such, the
parties agreed to arbitrate contract formation.
6
Case: 14-10403 Document: 00513035744 Page: 7 Date Filed: 05/08/2015
No. 14-10403
Heritage first asserted the contract formation issue in its original
Demand for Arbitration and in its Amended Demand for Arbitration, sent to
opposing counsel on April 23, 2012. In its Second Amended Demand for
Arbitration on September 5, 2012, Heritage made the same claim, noting as
one alternative argument that “Heritage believes that there was never a
meeting of the minds concerning Martin’s compensation” and again requesting
such a finding and rescission of the CA. In its Answer to the Second Amended
Demand on September 17, 2012, OMG generally denied Heritage’s allegations
regarding no meeting of the minds. In its answer to OMG’s Third Amended
Counterclaim, Heritage again asserted that if the CA was found ambiguous,
“Heritage contends that there was never a meeting of the minds as to Martin’s
compensation.”
Heritage and OMG sparred over the meeting of the minds issue in pre-
arbitration briefing. In OMG’s “Arbitration Brief,” filed on October 5, 2012,
OMG acknowledged Heritage’s “Meeting of the Minds/Rescission” argument,
countering only that rescission was inappropriate and that, in any event, the
court could not award both damages and rescission. Several days later,
Heritage asserted in its “Trial Brief” that “[i]n the alternative, the Arbitrator
should determine that there was no meeting of the minds between the parties,
and that therefore no enforceable contract was formed.” 2
On October 17, 2012, the parties orally argued and presented evidence
at an arbitration hearing. Toward the end of the hearing, the arbitrator
2 In its pre- and post-arbitration briefing, Heritage contended that the lack of any
meeting of the minds constituted a “mutual mistake” and warranted rescission of the
contract. Whatever Heritage labeled this lack of aligned expectations, it was clear
throughout that it challenged an element crucial to contract formation. By the pre-
arbitration briefing, Heritage explicitly made the argument that no enforceable contract had
been formed between the parties.
7
Case: 14-10403 Document: 00513035744 Page: 8 Date Filed: 05/08/2015
No. 14-10403
inquired about whether OMG’s counsel had objected to Heritage’s argument
that there was no meeting of the minds as not made in the pleadings. OMG’s
counsel responded that “[t]here was a reference in the prior pleadings to a
meeting of the minds,” but that “the term, ‘mutual mistake,’ I believe, was
asserted for the first time in a brief.” The arbitrator noted that he thought
meeting of the minds was “an issue in the case,” and asked: “[I]f I make a
decision on that – on that, I’m not going to hear from somebody that it’s not
supported by the pleading or they don’t have fair notice?” OMG did not
respond. Heritage requested a “trial amendment” in case that argument was
made, which the arbitrator granted.
Finally, the parties again discussed contract formation, rescission, and
the meeting of the minds issue in post-arbitration briefing. Heritage cited
evidence from the arbitration hearing that the parties’ expectations never met
and asserted again that rescission would be an appropriate remedy if the
arbitrator found no meeting of the minds and therefore no enforceable contract.
Heritage made the same arguments later in its reply brief. OMG filed a
response brief in which it contended that “Heritage’s Argument that the
Consulting Agreement Should Be Rescinded on the Basis of No Meeting of the
Minds is Meritless.” OMG did not contest the arbitrator’s authority to
determine that no meeting of the minds had occurred; instead, it argued on the
merits that rescission was not an appropriate remedy. OMG also requested an
alternative damages amount of $728,902.88 in its post-arbitration response,
which it claimed it was owed “in Commissions earned but not paid.” In
cancelling the CA and APA, the arbitrator ordered that OMG receive unpaid
commissions and finder’s fees based on items it had procured. Heritage was to
perform an accounting and pay OMG the unpaid commissions it admitted to
owing OMG, with interest, in addition to unpaid commissions and finder’s fees
8
Case: 14-10403 Document: 00513035744 Page: 9 Date Filed: 05/08/2015
No. 14-10403
on items OMG procured that would be sold to customers in the future. The
arbitrator specified that this was not a damages award because the CA was
not enforceable; rather, he ordered this exchange as “part of a ‘true up’ to
facilitate cancellation of the APA and CA and to avoid Heritage’s receipt of a
windfall.”
An abundance of evidence in this case makes clear that OMG consented
to the submission of the issues of contract formation and whether there was a
meeting of the minds to the arbitrator. If OMG did not believe the arbitrator
had the authority to decide those issues, it should have refused to arbitrate,
leaving a court to decide whether the arbitrator could decide the contract
formation issue. See generally Jones Dairy Farm v. Local No. P-1236, United
Food & Commercial Workers Int’l Union, 760 F.2d 173, 174–77 (7th Cir. 1985)
(“The company could therefore have refused to arbitrate; and if the union had
sued it, the court would have decided whether the company had to arbitrate
this particular dispute . . . . But Jones Dairy Farm did not make it an issue.
. . . The company never questioned the arbitrator’s authority.”); see also
Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991) (“Also,
there is no evidence that, at any point before or during the arbitration,
appellants objected to the process, refused to arbitrate or made any attempt to
seek judicial relief.”).
OMG simply cannot wait until it receives a decision with which it
disagrees before challenging the arbitrator’s authority. See Jones Dairy, 760
F.2d at 175 (“If a party voluntarily and unreservedly submits an issue to
arbitration, he cannot later argue that the arbitrator had no authority to
resolve it.”). Courts, including our own, have refused to allow such
maneuvering where parties initially submitted their grievances in writing to
an arbitrator. See, e.g., Piggly Wiggly, 611 F.2d at 583–85; Johnson v. United
9
Case: 14-10403 Document: 00513035744 Page: 10 Date Filed: 05/08/2015
No. 14-10403
Food & Commercial Workers, Int’l Union Local No. 23, 828 F.2d 961, 965 (3d
Cir. 1987) (“The parties, therefore, define the issues and empower the
arbitrator. . . [whose] ultimate authority is not limited to the issues the
collective bargaining agreement requires to be submitted, but expands to
include those issues that the parties agree to submit.” (citations omitted)); cf.
John Morrell & Co. v. Local Union 304A of United Food & Commercial
Workers, 913 F.2d 544, 560–61 (8th Cir. 1990) (noting that parties may agree
to arbitrate certain issues through implication or through their own conduct,
including “how the parties have framed the issue to be arbitrated,” and finding
an arbitrator acted outside his authority when the parties neither referred to
the issue he decided in their opening briefs, nor offered evidence on the issue).
Likewise, OMG and Heritage submitted the meeting of the minds and contract
formation issues to the arbitrator in writing. Heritage pleaded the meeting of
the minds issue in each of its demands for arbitration, argued the issue in its
pre-arbitration briefing, elicited live witness testimony during the arbitration
hearing about whether the parties’ minds met, and raised these issues again
in its post-arbitration briefing. OMG responded in each of these contexts, in
writing, by arguing against the remedy Heritage requested (rescission), and by
arguing that the CA and APA were not ambiguous. OMG never objected to the
arbitrator’s authority or contended that it had not agreed to arbitrate. Cf.
Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70–71 (2010). Accordingly, OMG,
by consent, submitted to the arbitration of contract formation. 3
3 Before this court, the parties also contest whether meeting of the minds is an issue
that only a court may decide. We need not and do not decide whether a court would need to
decide meeting of the minds, rather than allowing an arbitrator to do so, when faced with a
contested motion to compel arbitration based on a potentially nonexistent contract. See, e.g.,
Rent-A-Ctr., 561 U.S. at 70–71; Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440
(2006); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967); Banc One
10
Case: 14-10403 Document: 00513035744 Page: 11 Date Filed: 05/08/2015
No. 14-10403
OMG is also bound by the arbitrator’s award, notwithstanding its
various objections to the validity of the cancellation remedy in this context. 4
Cancellation and rescission are often “synonymous” under Texas law, which
governs the CA and APA. 9029 Gateway S. Joint Venture v. Eller Media Co.,
159 S.W.3d 183, 186 (Tex. App.—El Paso 2004, no pet.). Cancellation and
rescission can operate in different ways, in that cancelling a contract may
“abrogate so much of it as remains unperformed” and “differ[] from rescission,
which means to restore the parties to their former position.” Manges v. Guerra,
621 S.W.2d 652, 658 (Tex. App.—Waco 1981, writ granted) rev’d in part, aff’d
in part, on other grounds, 673 S.W.2d 180 (Tex. 1984); see also 9209 Gateway,
159 S.W.3d at 186 (“If there is a distinction, it is only that rescission is a
general undoing of an agreement while cancellation is a more formal
annulment or rendering of an instrument ineffective as a legal obligation.”
Acceptance Corp. v. Hill, 367 F.3d 426 (5th Cir. 2004); Will-Drill Res., Inc. v. Samson Res.
Co., 352 F.3d 211 (5th Cir. 2003). OMG did not resort to a court to object that meeting of the
minds could not be arbitrated until after it had submitted to the entire arbitration process
and received a result. Nor do we need to determine whether we must apply the “clear and
unmistakable evidence” standard to resolve whether the parties agreed to submit the issue
of arbitrability to the arbitrator. See generally Gen. Motors Corp. v. Pamela Equities Corp.,
146 F.3d 242, 250–51 (5th Cir. 1998). This case rests on a simpler question: whether OMG
and Heritage, by their conduct, consented to the arbitrator determining the meeting of the
minds issue by submitting it to the arbitrator and failing to object that he lacked authority
to decide this issue. Even if we were to apply the clear and unmistakable evidence standard
to whether OMG and Heritage arbitrated the meeting of the minds issue by consent, their
repeated submission of this issue through the pleadings, briefing, and hearing testimony
would suffice. Cf. ConocoPhillips, Inc. v. Local 13-0555 United Steelworkers Int’l Union, 741
F.3d 627, 630–34 (5th Cir. 2014) (finding no waiver of a challenge to the arbitrator’s
jurisdiction where a party repeatedly asserted that the arbitrator lacked jurisdiction to decide
arbitrability).
4 OMG objects that the arbitrator exceeded his authority by: (1) cancelling the
contract, a remedy it alleges is not available under Texas law and that does not derive from
the essence of the CA or APA. OMG also asserts that the arbitrator committed prejudicial
misconduct under 9 U.S.C. § 10(a)(3) by failing to warn the parties he would grant
cancellation and thereby depriving OMG of the chance to argue against cancellation.
11
Case: 14-10403 Document: 00513035744 Page: 12 Date Filed: 05/08/2015
No. 14-10403
(quoting Ferguson v. DRG/Colony North, Ltd., 764 S.W.2d 874, 887 (Tex.
App.—Austin 1989, writ denied)); see also 10 TEX. JUR. 3D Cancellation and
Reformation of Instruments § 4 (same). Given the often synonymous nature of
cancellation and rescission and the extent to which the parties discussed and
contested the remedy of rescission, each of OMG’s objections to the arbitrator’s
chosen remedy fails. 5
Accordingly, we REVERSE the district court’s judgment and REMAND
the case with instructions for the district court to confirm the arbitration
award.
5 OMG asserts that cancellation does not draw its essence from the contract and that
the arbitrator could not order it because the parties never requested “cancellation” or
specifically discussed “cancellation,” rather than “rescission.” These arguments lack merit.
The arbitrator granted a remedy that is often used interchangeably with rescission, which
the parties addressed at length throughout the arbitration process. See generally PSC
Custom, LP v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.
Workers Int’l Union, Local No. 11-770, 763 F.3d 1005, 1010 (8th Cir. 2014) (“[T]hough the
arbitrator’s decision must draw its essence from the agreement, he is to bring his informed
judgment to bear in order to reach a fair solution of a problem. This is especially true when it
comes to formulating remedies.” (citation and internal quotation marks omitted)); cf. Totem
Marine Tug & Barge, Inc. v. N. Am. Towing, Inc., 607 F.2d 649, 651–52 (5th Cir. 1979)
(finding an arbitrator ignored the dispute submitted by the parties in making an award).
12