Case: 13-30120       Document: 00512359082         Page: 1     Date Filed: 08/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 30, 2013
                                     No. 13-30120
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RICHARD BAIN,

                                                  Plaintiff - Appellee

v.

WHITNEY BANK,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2785


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Whitney Bank (Whitney) appeals the district court’s
judgment confirming Plaintiff-Appellee Richard Bain’s arbitral award and
denying its motion to vacate or modify the award under 9 U.S.C. §§ 10(a)(4) or
11(a). We AFFIRM.
                          I. Facts & Procedural History
       Richard Bain        entered into an employment agreement with Parish
National Bank (PNB) in 2008. That agreement provided: “[Bain] shall be

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 13-30120

eligible to participate in incentive plans developed by [PNB] for its Executive
Officers [and Bain] shall be entitled to participate in all other benefits generally
offered to bank employees.” Bain and PNB agreed that disputes arising out of
that agreement were to be submitted to arbitration.
      Whitney acquired PNB in 2011, and assumed all of PNB’s contractual
obligations.   Thereafter, Bain demanded Whitney pay him compensation
allegedly owed to him under the terms of the employment agreement. When
Whitney refused, Bain initiated arbitration proceedings.
      The arbitrator rendered a reasoned award in Bain’s favor in September
2012. The arbitrator found, inter alia: there was a valid contract between Bain
and PNB, which was assumed by Whitney; Bain was entitled to receive incentive
benefits; and Whitney breached that agreement. After issuing the award, and
pursuant to Whitney’s request to correct computational errors, in October 2012
the arbitrator issued an amended award for Bain in the approximate amount of
$674,425 in cash and stock.
      Bain made demand on Whitney to satisfy the award; when it refused, Bain
filed a petition in Louisiana state court to confirm the arbitral award. Whitney
removed to federal district court, and filed a motion to vacate or modify the
award; Bain filed a motion to confirm it. The district court denied Whitney’s
motion and granted Bain’s. This timely appeal followed.
                  II. Jurisdiction & Standard of Review
      On appeal from a district court’s denial of a motion to vacate an
arbitration award, we review findings of fact for clear error; questions of law, de
novo. Prescott v. Northlake Christian Sch., 

, 494 (5th Cir. 2004)
(citation omitted). “[T]he district court’s review of an arbitration award, under
the Federal Arbitration Act (FAA), is extraordinarily narrow.” Id. (citation and
internal quotation marks omitted).




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                                   III. Analysis
      Whitney contends the arbitral award should be vacated under 9 U.S.C. §
10(a)(4), because the arbitrator exceeded her authority by granting an award
supported by neither Louisiana law nor the employment agreement; or,
alternatively, modified under 9 U.S.C. § 11(a), because the arbitrator relied on
an unambiguous mistake of fact.
      Arbitration awards must be confirmed unless statutory grounds exist for
vacatur or modification. 9 U.S.C. § 9. The FAA permits a district court to vacate
an award “where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject matter
submitted was not made.” 9 U.S.C. § 10(a)(4). Modification may be ordered
where “there was an evident material miscalculation of figures or an evidence
material mistake in the description of any person, thing, or property referred to
in the award.” 9 U.S.C. § 11(a).
      Regarding its first contention, Whitney asserts that Bain introduced no
evidence during arbitration of an incentive plan under which he would have been
entitled to payment, and that the arbitrator exceeded her powers by awarding
damages with no legal relation to the underlying contract. A mere mistake of
law, however, is not sufficient grounds for disturbing an arbitral award. Apache
Bohai Corp. LDC v. Texaco China BV, 

, 401 (5th Cir. 2007) (citation
omitted). Here the arbitrator applied the law, in accordance with her express
powers, in the manner she deemed appropriate. Further, to the extent Whitney
asserts the arbitral award evinced a “manifest disregard for the law,” this
independent, nonstatutory ground cannot be the basis for vacatur or
modification in this circuit. Citigroup Global Markets, Inc. v. Bacon, 

, 358 (5th Cir. 2009).
      Regarding its second contention, Whitney asserts the arbitrator relied on
an unambiguously inaccurate report reflecting the value of incentive payments
owed to Bain. During the hearing, Bain proffered evidence from a financial

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                                 No. 13-30120

forensic expert regarding his damages, but Whitney did not challenge that
expert’s testimony. Yet even if it had, review of the arbitrator’s decision is
exceedingly deferential. Apache Bohai, 480 F.3d at 401 (citation omitted).
Accordingly, we will not disturb the arbitrator’s award.
                               IV. Conclusion
      For the foregoing reasons, the district court’s judgment denying Whitney’s
motion to vacate or modify the arbitral award is AFFIRMED.




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