United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
action is over two years old. It arises from Defendants'
unauthorized showing of a pay-per-view boxing match, the
rights to which are owned by Plaintiff. The case was set for
a jury trial to begin on January 9, 2017. (Docket #17).
However, at the parties' request, the Court vacated the
trial date so that they could seek arbitration. The
arbitrator issued a decision on August 15, 2017, awarding
Plaintiff a total of $5, 463.80, which included $350 in
damages and $3, 625 in attorney's fees. See
(Docket #24 at 1-2).
October 23, 2017, Plaintiff filed a motion pursuant to 9
U.S.C. § 11 requesting modification of the award.
Id. at 2-6. Plaintiff claims that the arbitrator
miscalculated the proper amount of damages. See Id.
Defendants filed a letter shortly thereafter, complaining
that Plaintiff was attempting to undo what they believed to
be a final and binding resolution of their dispute. (Docket
#25). Defendants are plainly mistaken; while arbitration is
indeed binding, the very purpose of the Federal Arbitration
Act (“FAA”) is to permit certain limited
challenges to arbitration decisions. See 9 U.S.C.
§§ 10-11; Halim v. Great Gatsby's Auction
Gallery, Inc., 516 F.3d 557, 563 (7th Cir. 2008).
Defendants failed to timely file a memorandum in opposition
to Plaintiff's motion. The Court does not decide matters
based on competing letters of counsel, so their letter of
October 27 does not count. Even if it did, however, because
of counsel's failure to appreciate the function and
purpose of Title 9, the letter offers no substantive
opposition to Plaintiff's motion. Thus, the Court could
grant the motion as unopposed. Civ. L. R. 7(d).
Plaintiff's motion has its own fatal defects which the
Court may not overlook. First, Plaintiff did not file the
arbitrator's decision with the Court. It claims to have
done so, see (Docket #24 at 2 n.1), but the actual
document attached as Exhibit 1 to the motion is
Plaintiff's brief to the arbitrator, not the ultimate
decision, see (Docket #24-1). Thus, Plaintiff has
not fully equipped the Court to review the arbitrator's
decision and its challenges thereto.
and more importantly, Plaintiff's motion overstates the
relief available to it under the FAA. Plaintiff reports that
the arbitrator awarded $350.00 in damages and that the
balance of the $5, 463.80 was comprised of attorney's
fees, costs, and expenses. In support of its request for
modification of the award, Plaintiff cites Section 11(a) of
the FAA, which permits modification by the district court
“[w]here there was an evident material miscalculation
of figures or an evident material mistake in the description
of any person, thing, or property referred to in the
award.” 9 U.S.C. § 11(a).
says that the $350 damages award was
“miscalculated” inasmuch as it was too low.
(Docket #24 at 3). The arbitrator apparently multiplied the
cover charge for Defendants' showing of the fight-$7.00-
by the number of attendees-50-to arrive at the $350 figure.
See Id. Plaintiff contends that the proper
calculation should have started with the commercial licensing
fee for the event, which was $2, 200. Id. at 4;
(Docket #24-2). Anything less would incentivize future
piracy, as the pirate could count on paying less in damages
than if he licensed the showing in the first place. See J
& J Sports Prods., Inc. v. Castrillon, No. 07-cv-
02946(FB)(WP), 2009 WL 1033364, at *4 (E.D.N.Y. Apr. 16,
2009). Furthermore, says Plaintiff, the arbitrator should
have awarded enhanced statutory damages as are available
under 47 U.S.C. § 605(e)(3)(C)(ii). (Docket #24 at 4-5).
persuasive may be Plaintiff's reasoning, an
“evident material miscalculation” in an
arbitration award should not be confused with mere
disagreement with the arbitrator's decision. Judicial
review of arbitration decisions is exceedingly narrow.
See AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema,
Inc., 508 F.3d 995, 1001 (11th Cir. 2007)
(“Because arbitration is an alternative to litigation,
judicial review of arbitration decisions is among the
narrowest known to the law.”). The FAA was not designed
to facilitate a de novo review of the
arbitrator's conclusions. See Health Servs. Mgmt.
Corp. v. Hughes, 975 F.2d 1253, 1267 (7th Cir. 1992);
Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250,
1256 (7th Cir. 1994).
particular, relief under Section 11(a) is limited to
“simple formal, descriptive, or mathematical mistake,
” Stroh Container Co. v. Delphi Industries,
Inc., 783 F.2d 743, 749 (8th Cir. 1986), not
disagreement over factual or legal decisions deliberately
made. In other words, Section 11(a) reaches only
computational errors, not legal or factual mistakes
concerning the amount of damages that should be awarded or
the value of the subject property. See Waddell v. Holiday
Isle, LLC, Civil No. 09- 0040-WS-M, 2009 WL 2413668, at
*3 (S.D. Ala. Aug. 4, 2009) (collecting cases). Simply put,
Section 11(a) does not apply to “an interpretation of
the law and facts as [the arbitrator] saw them.”
Capital Wholesale Elec., Inc. v. McCarthy Constr.,
50 F.3d 13, 1995 WL 105987, at *2 (9th Cir. 1995).
consequence, saying that the arbitrator made an arithmetical
error in calculating damages is one thing, but accusing the
arbitrator of making a legal or factual error arriving at a
damages award is another. Plaintiff's complaint is of the
latter type; it does not accuse the arbitrator of a
scrivener's error but says that “[t]he evident
material mistake with respect to the description of the
property derives from the arbitrator's determination that
the value of the property was $7.00, and the material
miscalculation herein derives from the arbitrator's
decision to utilize the Defendants' $7.00 cover charge as
the basis for calculating damages.” (Docket #24 at 3).
Plaintiff's own words show that the arbitrator
consciously decided to value the showing of the fight in this
Plaintiff's concern about enhanced damages is that they
were warranted by the law and the facts, not that the
arbitrator's arithmetic was faulty. Id. at 4
("[T]he arbitrator should have awarded enhanced
statutory damages under 47 U.S.C. § 605(e)(3)(C)(ii). It
is clear from the evidence that the actions of Defendants
were willful and for financial gain."). Indeed,
Plaintiff's brief to the arbitrator shows that it
requested enhanced damages, see (Docket #24-1 at 5),
so the failure to award them was, again, a deliberate choice
of the arbitrator. If the arbitrator's decision on these
matters was error, it is outside the Court's power to
given that Plaintiff's purported objections to the award
are not reviewable under Section 11(a), there is nothing left
to do but deny Plaintiff's motion and dismiss this case.
If the parties agreed to have the arbitration award confirmed
in a judgment of this Court, time remains for them to apply
for the same. See 9 U.S.C. § 9.
IT IS ORDERED that Plaintiff's motion to modify the
arbitrator's award (Docket #23) be ...