MAIN, Justice.

Wade Tucker and Wendell Cook Testamentary Trust, on behalf of shareholders of HealthSouth Corporation (hereinafter referred to collectively as "HealthSouth"), brought this shareholder-derivative action against Ernst & Young, LLP ("E & Y"), asserting claims of "audit malpractice" based on E & Y's failure to discover and, if discovered, to report accounting fraud. The "audit malpractice" claims included various claims of negligence, breach of contract, and fraud.1 The action was referred to arbitration, and an arbitration award was entered in favor of E & Y. HealthSouth filed a motion in the Jefferson Circuit Court seeking to vacate the award. The circuit court denied the motion to vacate and entered a final judgment in favor of E & Y based on the award. HealthSouth appeals. We affirm.

I. Facts and Procedural Background

This action began as a shareholder-derivative action brought on behalf of HealthSouth Corporation by shareholders Wade Tucker and Wendell Cook Testamentary Trust, John P. Cook, trustee. It arises from accounting fraud at HealthSouth Corporation, which took place during the late 1990s and early 2000s. As a result of that accounting fraud, HealthSouth Corporation's earnings were falsely inflated by more than $2.6 billion; numerous HealthSouth Corporation officers, directors, and managerial employees were convicted of federal crimes for their roles in the fraud; and, upon discovery of the fraud, HealthSouth Corporation purportedly sustained billions of dollars in out-of-pocket losses. This shareholder-derivative action asserted contractual and tort claims against various officers and directors of HealthSouth Corporation and various business entities that had had dealings with HealthSouth Corporation, including E & Y, HealthSouth Corporation's independent auditor during the period when the accounting fraud occurred. This Court is no stranger to this litigation; various aspects of the action have previously come before us. See Scrushy v. Tucker, 70 So.3d 289 (Ala.2011); Scrushy v. Tucker, 955 So.2d 988 (Ala.2006); and Ernst & Young, LLP v. Tucker, 940 So.2d 269 (Ala.2006).

This particular appeal concerns only the claims against E & Y and the subsequent arbitration award related to those claims. HealthSouth asserted audit-malpractice claims against E & Y premised upon E & Y's failure to discover the accounting fraud at HealthSouth Corporation, or, alternatively, E & Y's failure to report its discovery of the accounting fraud. Pursuant to the arbitration provision of the engagement agreement between HealthSouth Corporation and E & Y pursuant to which E & Y was to audit the financial statements of HealthSouth Corporation, the circuit court, on December 29, 2004, entered an order referring HealthSouth's claims against E & Y to arbitration. This Court affirmed the circuit court's arbitration order in Ernst & Young, LLP v. Tucker, supra. For a detailed procedural background concerning the claims against E & Y and the referral of those claims to arbitration, see Ernst & Young, 940 So.2d at 270-80.

Following the referral of this case to arbitration, the parties selected a panel of three neutral arbitrators.2 The arbitration hearing began on July 12, 2010. In September 2011, E & Y sought leave to file a dispositive motion at the close of HealthSouth's case-in-chief based on affirmative defenses raised in E & Y's answer. HealthSouth objected to the request on the grounds that the applicable arbitration rules contained no provision permitting the dispositive motion and that the motion would require HealthSouth to recalibrate its strategy to rebut E & Y's affirmative defenses during its case-in-chief. The arbitration panel overruled HealthSouth's objections, finding that the panel had the authority to permit dispositive motions at the close of evidence and noting that HealthSouth had been aware of the specific defenses from the outset of the hearing.3 The panel, however, ruled that HealthSouth would be allowed the opportunity to present all relevant evidence and witnesses it thought necessary to oppose E & Y's dispositive motion before that motion would be heard. HealthSouth rested on March 1, 2012. During its case-in-chief, HealthSouth called 14 live witnesses who testified over 81 days spread over nearly 2 years. HealthSouth also presented the testimony of 61 witnesses by video designation and thousands of pages of exhibits.

Upon the close of HealthSouth's case-in-chief, E & Y filed its dispositive motion requesting an award in favor of E & Y on all of HealthSouth's claims against it. The motion was based on Alabama's Hinkle rule4 and the doctrine of in pari delicto. E & Y also argued that HealthSouth's negligence claims were barred by the doctrine of contributory negligence. In short, E & Y contended that the fraud committed by HealthSouth Corporation's officers and directors, imputed to HealthSouth, precluded HealthSouth's recovery under Alabama law. HealthSouth responded that accepting E & Y's affirmative defenses would be to allow an auditor a "free pass" to engage in malpractice. HealthSouth argued that E & Y had contractually agreed to provide HealthSouth Corporation "reasonable ... assurance" that its financial statements were "free of material misstatement caused by" management fraud. Thus, HealthSouth argued that granting E & Y's dispositive motion would essentially immunize E & Y and render the engagement agreement illusory.

HealthSouth and E & Y submitted extensive briefing concerning E & Y's motion. The panel then held a three-day oral argument. A review of the record of the oral argument reveals that each member of the panel actively engaged and questioned counsel for E & Y and HealthSouth regarding their respective positions. The transcript indicates that the panel was familiar with the cases and authorities cited by the parties and that it worked hard, and in apparent good faith, to understand the parties' positions and applicable Alabama law.

On December 18, 2012, the panel issued its unanimous decision, denying and dismissing all of HealthSouth's claims. The panel's award was supported by a 25-page decision, setting forth various findings of fact and applying Alabama law. The panel summarized some of the evidence presented during the proceedings as follows:

After summarizing the evidence, the panel engaged in an analysis of Alabama law.5 First, the panel concluded that, under Alabama law, the misconduct and knowledge of HealthSouth Corporation's officers, directors, and employees who had engaged in the fraud must be imputed to HealthSouth. The panel reasoned that § 8-2-7, Ala.Code 1975, could be invoked to impute to HealthSouth the conduct of HealthSouth Corporation's officers, directors, and employees.6 The panel also relied on Todd v. Modern Woodmen of American, 620 So.2d 591 (Ala.1993), in which this Court held that the conduct of an agent may be imputed to the principal where, as the panel found here, the agent's wrongful acts were (1) "`in the line and scope of his employment'" or (2) "`in furtherance of the business of [the principal].'" 620 So.2d at 593 (quoting Joyner v. AAA Cooper Transp., 477 So.2d 364, 365 (Ala.1985)). The panel also rejected HealthSouth's argument that imputation of conduct is available only to support a plaintiff's claims, and not a defendant's affirmative defenses.7 Likewise, the panel imputed the knowledge of HealthSouth Corporation's officers, directors, and employees of the fraud to the company, citing § 8-2-8, Ala. Code 1975;8 Stone v. Mellon Mortg. Co., 771 So.2d 451, 457 (Ala.2000) ("An agent's knowledge can bind the principal if the agent acquired the knowledge while acting within the line and scope of his authority...."); and American Cent. Life Ins. Co. v. First Nat'l Bank, 206 Ala. 535, 536, 90 So. 294, 294 (1921) ("[W]hen, in the course of his employment, an agent acquires knowledge or receives notice of any fact material to the business he is employed to transact, his principal is deemed to have notice of such fact.").9 The panel concluded:

Having imputed to HealthSouth the conduct and knowledge of HealthSouth Corporation's employees, the panel concluded that several Alabama legal doctrines barred recovery by HealthSouth. First, the panel set forth Alabama's "Hinkle Rule," enunciated by this Court in Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So.2d 417, 421 (1942): "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Citing this Court's application of the Hinkle rule in several recent cases,10 the panel concluded:

The panel also concluded that HealthSouth's claims were due to be dismissed under the doctrine of in pari delicto. Quoting this Court's decision in Robinson v. Boohaker, Schillaci & Co., 767 So.2d 1092 (Ala.2000), the panel noted that, "`[w]here the fault is mutual, the law will leave the case as it finds it.'" The panel concluded:

Furthermore, the panel concluded that, applying Alabama law, all of HealthSouth's claims against E & Y grounded in negligence were due to be dismissed based on the doctrine of contributory negligence. The panel's decision also specifically addressed and rejected a number of arguments made by HealthSouth in its briefs and during oral argument.11 The panel's rejection of these arguments was based on its application and interpretation of Alabama law. Accordingly, the panel dismissed all claims — HealthSouth's claims and a pending counterclaim asserted by E &Y.12

On December 18, 2012, HealthSouth filed a notice of appeal of the award in the Jefferson Circuit Court, and on December 28, 2012, HealthSouth filed a motion to vacate the panel's award. On February 1, 2013, pursuant to Rule 71B(f), Ala. R. Civ. P., the circuit court entered the award as a final judgment of the court. On that same day, HealthSouth renewed its motion to vacate the judgment entered on the award and filed a supporting brief. HealthSouth argued that the arbitration award was due to be vacated under two of the vacation provisions of the Federal Arbitration Act ("the FAA"), 9 U.S.C. § 10(a)(3) and (a)(4):

Specifically, HealthSouth argued that the arbitrators exceeded their powers by "disregarding binding principles of Alabama law that the parties agreed would govern." HealthSouth also argued that the arbitrators were guilty of misconduct by permitting E & Y to file its dispositive motion at the close of HealthSouth's case-in-chief.

Following briefing and oral argument, the circuit court, on April 25, 2013, denied HealthSouth's motion. The circuit court, which had presided over other aspects of the HealthSouth litigation, summarized the panel's decision and concluded that HealthSouth's arguments were not well taken. The circuit court stated:

HealthSouth appeals.

II. Standard of Review

HealthSouth argues that the circuit court erred in refusing to vacate the arbitration award in favor of E & Y. Judicial review of an arbitration award, however, is extremely limited, and a court may not vacate an award unless the party attacking the award clearly establishes one of the grounds for vacating an award specified in 9 U.S.C. § 10.

Hereford v. D.R. Horton, Inc., 13 So.3d 375, 378 (Ala.2009).

III. Analysis

Courts must enforce awards entered in arbitration proceedings conducted pursuant to the FAA unless the challenging party establishes that vacatur is appropriate based on one of the grounds enumerated in 9 U.S.C. § 10(a) of the FAA. Cavalier Mfg., Inc. v. Gant, [Ms. 1080284, Dec. 20, 2013] 143 So.3d 762, 769 (Ala.2013). Section 10(a) provides:

HealthSouth contends that the arbitration award in this case is due to be vacated for two general reasons falling under §§ 10(a)(3) and (4). First, HealthSouth argues that the arbitrators "exceeded their powers" because, HealthSouth says, they "ignored foundational rules of Alabama law repeatedly invoked by HealthSouth." HealthSouth's brief, at 22. Second, HealthSouth argues that the arbitrators "engaged in prejudicial misconduct when they made arbitrary procedural rulings and refused to consider relevant evidence unfavorable to E & Y." HealthSouth's brief, at 23.

A. Whether the Arbitrators Exceeded Their Powers

HealthSouth invokes § 10(a)(4) of the FAA and argues that the arbitrators exceeded their powers by "ignoring" Alabama law in critical respects. A party invoking § 10(a)(4) of the FAA has a heavy burden. The United States Supreme Court has recently stated:

Oxford Health Plans LLC v. Sutter, ___ U.S. ___, ___, 133 S.Ct. 2064, 2068, 186 L.Ed.2d 113 (2013).

HealthSouth claims that the panel exceeded its authority by ignoring Alabama law in several key respects. HealthSouth's brief summarizes the particular areas of law it claims the panel ignored:

HealthSouth's brief, at 22-23.

A review of the panel's 25-page decision and the record of the 3-day oral argument concerning E & Y's dispositive motion reveals HealthSouth's arguments to be mostly hollow. The panel's decision discussed each of the above topics under Alabama law, distinguishing some of, but not all, the cases cited by HealthSouth. Nevertheless, although the panel's decision did not directly address each authority cited by HealthSouth, HealthSouth's assertion that the panel's discussion of Alabama law was no more than "prophylactic" cover for its decision to "consciously ignore" Alabama law in favor of "foreign authorities" is without basis. HealthSouth simply contends that the panel's award was in error because it disregarded binding Alabama precedent. In this respect, HealthSouth's argument must be viewed as an argument that the panel "manifestly disregarded" Alabama law. Whether true or not, this Court has held that "manifest disregard of the law" is not a valid basis for vacating an arbitration award. Hereford, 13 So.3d at 381 ("[M]anifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator's award."); Cavalier, 143 So.3d at 768 ("We decline [the] invitation to give further life to the concept of manifest disregard of the law.").

This case is nearly indistinguishable from Cavalier Manufacturing, Inc. v. Gant, supra. In that case, a mobile-home manufacturer sought to set aside an arbitration award in favor of the purchaser of a mobile home. The manufacturer, like HealthSouth here, argued that the arbitrator had ignored Alabama law in numerous respects. We rejected that argument, holding that "manifest disregard of the law" was not a basis for setting aside an arbitration award:

143 So.3d at 769 (footnote omitted). See also Gower v. Turquoise Props. Gulf, Inc., [Ms. 1120045, Dec. 20, 2013] ___ So.3d ___, ___ (Ala.2013) ("The fact that the arbitrator appears to have misapplied the law in denying Gower's claims, however, does not authorize this Court to vacate the arbitration award under 9 U.S.C. § 10. Federal authorities are abundantly clear that an arbitrator does not exceed his or her powers when the arbitrator misapplies the law.").

HealthSouth attempts to distinguish Cavalier by arguing that the mobile-home manufacturer in Cavalier made only a "manifest-disregard-of-the-law" argument and "failed to tether its argument to FAA § 10 or cases interpreting it." HealthSouth's reply brief, at 12 n. 3. Further, HealthSouth contends that our holdings in Cavalier and Gower were unremarkable in that those cases concerned only "garden-variety" claims that the arbitrator misapplied the law, where here, HealthSouth contends, the panel "ignored Alabama law." HealthSouth's reply brief, at 9. HealthSouth's arguments are unpersuasive. HealthSouth's arguments are exactly the same as the arguments raised by the mobile-home manufacturer in Cavalier. See 143 So.3d at 770 ("Cavalier seeks to establish that the relevant legal principles were well defined and were called to the arbitrator's attention; yet, Cavalier argues, the arbitrator nevertheless chose to ignore those identified principles."). There is no substantive distinction between HealthSouth's argument that the panel "willfully ignored" the law and the argument that an arbitrator "manifestly disregarded" the law. Thus, we do not question whether the panel "disregarded" or "ignored" the law. "[T]he sole question... is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong." Oxford Health, ___ U.S. ___ at ___, 133 S.Ct. at 2068.

Nevertheless, HealthSouth contends that the panel exceeded its authority under § 10, because, it says, the panel was duty-bound to apply Alabama law. HealthSouth argues that when the panel ignored Alabama precedent, it exceeded its authority under the arbitration agreement. In support of this argument, HealthSouth cites Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010). In Stolt-Nielsen, the plaintiff brought a putative class action against various shipping companies, alleging illegal price-fixing and asserting antitrust claims. The dispute was referred to arbitration pursuant to an arbitration agreement. As a threshold matter, however, the panel of arbitrators was required to determine whether the arbitration clause permitted the class-action claims to proceed in arbitration. The parties stipulated that they had never reached an agreement on class arbitration. After hearing argument and evidence, including testimony from shipping companies' experts regarding arbitration customs and usage in the maritime trade, the arbitrators concluded that the arbitration clause allowed for class arbitration. On appeal, the United States Supreme Court held that the decision of the arbitrators ordering class proceedings was due to be vacated. The Supreme Court held that because the parties had never agreed to arbitrate class-action claims, the arbitrators had no contractual basis to order class-action arbitration. In effect, the Court stated, the arbitrators had merely imposed their own idea of sound policy, without a contractual basis. Accordingly, the Court held that the arbitrators had exceeded the authority granted to them by the parties' arbitration agreement.

HealthSouth contends that Stolt-Nielsen is on all fours with this case. HealthSouth's reliance on Stolt-Nielsen, however, is unavailing, particularly in light of the Supreme Court's recent decision in Oxford Health Plans LLC, supra. In Oxford Health, a physician plaintiff filed a proposed class-action lawsuit against Oxford Health Plans, alleging that Oxford failed to promptly pay him and other physicians who had entered into employment contracts with Oxford. The suit was referred to arbitration, and the parties agreed that the arbitrator should decide whether the arbitration clause in their contract authorized class arbitration. The arbitrator found that the arbitration clause unambiguously evinced an intention to allow class arbitration. Citing Stolt-Nielsen, Oxford sought to have the arbitrator's decision set aside on the ground that the arbitrator failed to properly interpret the arbitration agreement. The Supreme Court rejected Oxford's reliance on Stolt-Nielsen:

___ U.S. at ___, 133 S.Ct. at 2069-70. Accordingly, the Court held that the arbitrators did not exceed their powers.

Much as was the case in Oxford Health, HealthSouth's reliance on Stolt-Nielsen is misplaced. The arbitration agreement in this case required the panel to apply Alabama law in resolving the claims brought by HealthSouth against E & Y. The panel has arguably, and in apparent good faith, done so. Whether the panel correctly applied Alabama law is not a question properly before this Court. As the United States Supreme Court concluded in Oxford Health:

___ U.S. at ___, 133 S.Ct. at 2070-71.

In this case, HealthSouth obviously disagrees with the panel's interpretation of Alabama law. Nevertheless, HealthSouth bargained for the arbitrators' interpretation of Alabama law, and HealthSouth's argument that the panel "ignored" or disregarded key aspects of Alabama must be rejected.

Next, HealthSouth argues the panel exceeded its powers by granting E & Y relief on its affirmative defenses despite what HealthSouth characterizes as "the arbitration agreement's plain language, which strictly limits the Arbitrators' remedial authority." HealthSouth's brief, at 60. The arbitration agreement in question provides that the arbitrators "may not award non-monetary or equitable relief of any sort."13 HealthSouth contends that E & Y's affirmative defenses are fundamentally equitable in nature and, therefore, that the panel violated the language of the arbitration agreement, and thus exceeded its authority, when it granted E & Y's dispositive motion based upon those affirmative defenses.

A critical problem with HealthSouth's argument that the panel was not authorized to rule on E & Y's affirmative defenses is that HealthSouth failed to raise this argument before the panel entered its award. The first time HealthSouth raised this particular argument was in a footnote to its 70-page brief to the circuit court in support of its motion to vacate the panel's award. Indeed, not only did HealthSouth make no objection to the panel concerning the arbitrability of E & Y's affirmative defenses, but HealthSouth itself submitted the same affirmative defenses to E & Y's counterclaim. In R.P. Industries, Inc. v. S & M Equipment Co., 896 So.2d 460 (Ala.2004), this Court held that a party who failed to raise an objection to an arbitration panel's ability to award attorney fees before the panel entered its award, and who itself had requested an attorney-fee award, had waived its objection that the panel exceeded its powers in making such an award. Likewise, HealthSouth's failure to timely object to the submission to the panel of E & Y's "equitable" affirmative defenses resulted in a waiver of that issue. Consequently, the panel did not exceed its power by granting relief based on E & Y's affirmative defenses.

The circuit court's denial of HealthSouth's motion to set aside the panel's award on the basis that the panel "exceeded [its] powers" is due to be affirmed.

B. Whether the Arbitrators Were Guilty of Misconduct

Next, HealthSouth contends that the panel's award is due to be vacated on the ground that the panel engaged in "misconduct" that materially prejudiced HealthSouth. In order to establish "misconduct" under § 10(a)(3), HealthSouth must demonstrate that the arbitration proceedings were fundamentally unfair.

Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997).

First, HealthSouth claims that the panel's decision even to entertain E & Y's dispositive motion constituted misconduct. In light of the record before us, the panel's decision to allow E & Y to file a dispositive motion at the close of HealthSouth's case-in-chief was not fundamentally unfair. The panel undoubtedly had the authority to accept E & Y's motion. See Birmingham News Co. v. Horn, 901 So.2d 27, 55 (Ala.2004) ("`"`Procedural questions' which grow out of the dispute and bear on its final disposition" are presumably not for the judge, but for an arbitrator, to decide.'" (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002))). HealthSouth was aware of the affirmative defenses raised by E & Y from the outset of the proceeding. E & Y sought leave to file the motion more than five months before HealthSouth rested its case-in-chief, and the panel gave HealthSouth the opportunity to add additional witnesses to its case-in-chief, so that E & Y's motion would be heard only "after HealthSouth has had a full opportunity to present all its relevant evidence." Allowing E & Y to submit a dispositive motion at the close of HealthSouth's case-in-chief does not constitute "misconduct," and HealthSouth cites no authority indicating otherwise.

Finally, HealthSouth contends that the panel committed misconduct by unfairly refusing to consider relevant testimony — namely, the testimony of Wayne Dunn, the senior manager assigned by E & Y to the HealthSouth Corporation audits. Dunn was called as part of E & Y's case-in-chief, which began after HealthSouth rested, and during the time the panel provided for briefing on E & Y's dispositive motion. Dunn's testimony is important, according the HealthSouth, because, HealthSouth says, it showed that E & Y was not "innocent." This showing was important, argues HealthSouth, because E & Y's imputation-based affirmative defenses are, under Alabama law, reserved for "innocent" defendants. Thus, HealthSouth continues, E & Y could not impute the fraud of HealthSouth Corporation's officers, directors, and employees to the company. Accordingly, HealthSouth contends, Dunn's testimony was important to refuting E & Y's motion and the panel's refusal to consider his testimony constitutes "misconduct." There are number of reasons why this argument is unconvincing.

First, as E & Y points out, it is unclear whether the panel considered Dunn's testimony. Although the panel stated that the "record" for the purpose of E & Y's motion would be the evidence presented during HealthSouth's case-in-chief, the panel heard Dunn's testimony and mentioned it during oral argument on the motion. Second, the panel, interpreting Alabama law, rejected HealthSouth's legal argument that E & Y could raise its imputation-based defenses only if E & Y were deemed "innocent." Once it rejected this legal argument, the panel had no reason to consider the factual testimony of Dunn. Third, HealthSouth's entire case-in-chief was calculated to prove its claim that E & Y had failed to properly perform its job — that E & Y was not innocent. Thus, Dunn's testimony was arguably cumulative. Fourth, viewing E & Y's motion as akin to a Rule 50, Ala. R. Civ. P., motion for a judgment as a matter of law presented at the close of a plaintiff's case, the panel had no obligation to consider testimony offered after HealthSouth had rested its case. Indeed, E & Y could have chosen to put on no case at all. Finally, HealthSouth had the opportunity to call Dunn as a witness in its case-in-chief and chose not to.

Based on the record before us, HealthSouth has not established "misconduct" on the part of the panel. HealthSouth was provided a full and fair opportunity to present its case and to oppose E & Y's dispositive motion. HealthSouth was provided unlimited time to present its case and was permitted to call any relevant witness. Over the course of 81 days of live testimony HealthSouth presented 14 live witness, 61 witnesses by video designation, and thousands of pages of exhibits.14 The proceedings were, by all the evidence before us, "fundamentally fair." Accordingly, the circuit court properly denied HealthSouth's motion to vacate the arbitration award on misconduct grounds.

IV. Conclusion

HealthSouth has failed to show that the arbitration panel exceeded its powers or engaged in misconduct. Accordingly, the order of the circuit court entering judgment on the arbitration award is due to be affirmed.

AFFIRMED.

STUART, BOLIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and PARKER, MURDOCK, and SHAW, JJ., concur in the result.

MURDOCK, Justice (concurring in the result).

The main opinion disclaims agreement with the understanding and application of various affirmative defenses upon which the arbitrators based their ruling in favor of Ernst & Young, LLP ("E & Y"). See, e.g., 159 So.3d at 1268 n. 5. This disclaimer is made for good reason. I believe the arbitrators misunderstood and misapplied critical legal principles regarding the imputation of an agent's knowledge or actions to a principal. Without the erroneous imputations made by the arbitrators, the affirmative defenses upon which the arbitrators based their ruling would not have been available in this case. Nonetheless, principles regarding the limited judicial review of arbitration awards under the Federal Arbitration Act ("the FAA") appear to prevent this Court from rectifying the arbitrators' error.

A.

E & Y entered into a contract with and assumed a duty to HealthSouth Corporation, as a legal entity separate from HealthSouth's officers, directors, and employees, to audit HealthSouth's financial statements and, in this regard, to use due care to discover and report any material misstatements or fraud by HealthSouth's officers, directors, and employees. For the arbitrators to hold that, even if an auditor fails to meet its required standard of care to discover and report such misstatements and fraud, the auditor can invoke such affirmative defenses as contributory negligence, the so-called "Hinkle rule," and the doctrine of in pari delicto because HealthSouth officers, directors, and employees committed fraud is to make illusory the very obligation undertaken by the auditor, the obligation to use due care to discover and report that very fraud. In so holding, the arbitrators overread and placed far too much on § 8-2-7 and § 8-2-8, Ala.Code 1975, and relied upon cases involving circumstances distinguishable from the circumstances presented here.

The arbitrators concluded that "the plain language" of § 8-2-7 required that the wrongful conduct of HealthSouth's officers, directors, and agents "must ... be imputed to HealthSouth." Section 8-2-7 states:

The arbitrators further relied upon § 8-2-8, which states: "As against a principal, both principal and agent are deemed to have notice of whatever either has notice of and ought in good faith and the exercise of ordinary care and diligence to communicate to the other."

The arbitrators have read § 8-2-7 and § 8-2-8 too broadly. What is at issue in the present case is not the issue addressed in those statutes, i.e., whether a third party may hold a principal liable for the actions of the principal's agent (as, for example, where the third party is the victim of a tort committed by the agent in the line and scope of the agent's employment).15 What is at issue in the present case is whether a principal may hold a third party liable for a tort committed against the principal by the third party, notwithstanding, or perhaps in conjunction with, a breach of duty owed the principal by the principal's agent. As to that issue, the law is well settled that such actions are viable under the appropriate circumstances; the agent's wrongful conduct or knowledge is not always imputed to the principal so as to preclude the principal from recovering against a third party.

For example, in Ex parte R.A. Brown & Co., 240 Ala. 157, 198 So. 138 (1940), this Court concluded that a defendant real-estate broker may be held liable by a corporation where the broker conspired with officers and agents of that corporation to perpetrate a fraud upon the corporation and its innocent shareholders. 240 Ala. at 158-59, 198 So. at 139. Specifically, this Court noted:

240 Ala. at 159, 198 So. at 139 (emphasis added). See also Restatement (Third) of Agency § 5.04 cmt. c (2006) ("A principal should not be held to assume the risk that an agent may act wrongfully in dealing with a third party who colludes with the agent in action that is adverse to the principal. That is, the third party should not benefit from imputing the agent's knowledge to the principal when the third party itself acted wrongfully or otherwise in bad faith." (emphasis added));16 Restatement (Third) of Agency § 5.04 cmt. b ("[N]otice of material facts known to an agent is imputed to the principal when the agent deals with a third party who reasonably believes the agent to be authorized so to act for the principal. However, this section does not protect a third party who knows or has reason to know that an agent acts adversely to the principal." (emphasis added)).

Comment c to § 5.04 of the Restatement provides illustrations that directly address the issue of fraud in the context of a corporate audit:

(Emphasis added.)

The arbitrators attempted to distinguish illustration 5 on the ground that HealthSouth's agents did not act adversely to HealthSouth. In so doing, however, they apparently did not appreciate the abovequoted comment language following illustration 5, and they apparently did not review comment b to Restatement (Third) of Agency § 5.03 (2006), which states:

(Emphasis added.) Comment b to § 5.03 goes on to explain as follows, however:

(Emphasis added.)

The distinctions reflected in comment b are important to the present case. Indeed, it is the fact that E & Y was retained to assist HealthSouth with the discovery of possible wrongdoing by HealthSouth's own officers, directors, and employees that distinguishes the present case from cases such as Ex parte HealthSouth Corp., 978 So.2d 745 (Ala.2007), one of the cases relied upon by the arbitrators in support of their imputation rationale. Unlike the taxing authorities that were the object of the fraudulent tax returns in Ex parte HealthSouth Corp. and that owed no duty to HealthSouth insofar as the accuracy of HealthSouth's tax submissions, E & Y had a duty to assist HealthSouth in discovering and reporting wrongful conduct by HealthSouth's own agents.

If, then, the arbitrators erred, the next question is whether this Court is in a position to correct that error.

B.

Notwithstanding the error in the arbitrators' understanding of Alabama law, I reluctantly concur in the result reached in the main opinion. In so doing, and in order to explain my vote, I find it necessary to comment on certain aspects of the main opinion and to acknowledge certain aspects of United States Supreme Court precedent in this area that have generated no small amount of disagreement, and some confusion, among both federal and state courts.

First, I decline to join in the analysis offered in Part III.A of the main opinion, including the manner in which it attempts to use the Supreme Court's opinion in Oxford Health Plans LLC v. Sutter, ___ U.S. ___, 133 S.Ct. 2064, 186 L.Ed.2d 113 (2013). That opinion addresses only an error by arbitrators in construing a contract; I do not read it as addressing errors by arbitrators in their understanding of the law, as occurred here.

I also specifically decline to join that portion of Part III.A of the main opinion that reframes HealthSouth's argument that the arbitrators exceeded their authority (9 U.S.C. § 10(a)(4)) as a "manifest-disregard-of-the-law" argument and then rejects it out of hand merely because it is a manifest-disregard-the-law argument. In so doing, the main opinion relies upon this Court's holdings in Hereford v. D.R. Horton, Inc., 13 So.3d 375 (Ala.2009), and Cavalier Mfg., Inc. v. Gant, [Ms. 1080284, Dec. 20, 2013] 143 So.3d 762, 768 (Ala. 2013).

In Hereford, however, this Court stated merely that "manifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating ... an arbitrator's award." 13 So.3d at 381. (Our holding in Cavalier was based on our holding in Hereford and was to similar effect. 143 So.3d at 768.) We acknowledged that the United States Supreme Court itself had not foreclosed the possibility that "manifest disregard of the law" might be another way of contending that arbitrators had "exceeded their powers" within the contemplation of 9 U.S.C. § 10(a)(4). 13 So.3d at 380 n. 1. Accordingly, we concluded in Hereford, and reiterated in Cavalier, 143 So.3d at 770, no more than that any challenge to an arbitration award along these lines must be framed in terms of one of the grounds for vacatur described in § 10(a) of the FAA.

HealthSouth has done what we asked. It repeatedly contends in its brief that in willfully ignoring Alabama law the arbitrators' action "exceeds their power" within the meaning of § 10(a)(4). Yet, the main opinion rejects this argument without any legal analysis, other than, as noted, to reframe it as a "manifest-disregard-of-the-law" argument and then to conclude that, under Hereford and Cavalier, this "is not a valid basis for vacating an arbitration award." 159 So.3d at 1273.

For my part, and notwithstanding my concurrence in Cavalier, further reflection has caused me to question whether arbitrators who willfully ignore applicable state law are not, in fact, "exceeding their power," or acting "beyond their authority," within the contemplation of 9 U.S.C. § 10(a)(4). The United States Supreme Court, itself, in Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), held open the possibility that the term "manifest disregard" is one that continues to have some use. In describing its earlier decision in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Court stated:

Hall Street, 552 U.S. at 585, 128 S.Ct. 1396. More recently, in its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 672 n. 3, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), the United States Supreme Court specifically stated:

See, e.g., Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1290 (9th Cir.2009); Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed.Appx. 415, 419 (6th Cir.2008) (not selected for publication in the Federal Reporter); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 548 F.3d 85, 94-95 (2d Cir.2008) ("[T]he Hall Street Court also speculated that `the term "manifest disregard"... merely referred to the § 10 grounds collectively, rather than adding to them' — or as `shorthand for § 10(a)(3) or § 10(a)(4).' Hall Street, [552 U.S. at 585.] It did not, we think, abrogate the `manifest disregard' doctrine altogether."), reversed on other grounds, Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010). See also Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal.4th 1334, 1351, 190 P.3d 586, 597, 82 Cal.Rptr.3d 229, 243 (2008) (noting that the language of §§ 10 and 11 refer to those provisions as "directed to `United States court in and for the district where the award was made'"). See generally Stephen Wills Murphy, Judicial Review of Arbitration Awards Under State Law 96 Va. L.Rev. 887, 912 n. 102 and accompanying text (June 2010) (noting 18 jurisdictions that appear to a allow a state court to review an arbitration award for the arbitrators' "manifest disregard of the law").

If I were persuaded that the conduct of the arbitrators in this case did indeed rise to the level of a manifest disregard of the law, rather than ordinary legal error, a further examination of Hall Street, Stolt-Nielsen, and the other authorities cited above would be in order. For purposes of this case, however, I find it unnecessary to resolve my questions regarding the functionality of the "manifest-disregard" standard and particularly whether it equates to one or more § 10(a)(4) defenses under the FAA. For all that appears in the record, the arbitrators did attempt to discern and apply Alabama law. They erred, and their error had grave consequences. But HealthSouth and E & Y did contract to have their dispute resolved by arbitration, and I cannot conclude that the manner in which the arbitrators went about that task rose to the level of a knowing and manifest disregard of the law or otherwise satisfied one of he defenses prescribed under §§ 10 and 11 of the FAA.17 I therefore find myself compelled to concur in the result reached by the Court today.