    14-732-cv
    Emilio v. Sprint Spectrum L.P.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 12th day of November, two thousand fourteen.

    PRESENT:
               JOHN M. WALKER, JR.,
               GERARD E. LYNCH,
               DENNY CHIN,
                     Circuit Judges.
    _____________________________________

    VINCENT EMILIO, Individually and on behalf
    of all others similarly situated,

                                Petitioner-Appellee,

                       v.                                                  14-732-cv

    SPRINT SPECTRUM L.P., DBA SPRINT
    PCS,

                     Respondent-Appellant.
    _____________________________________

    FOR PETITIONER-APPELLEE:                           WILLIAM ROBERT WEINSTEIN, Law
                                                       Offices of William R. Weinstein, White Plains,
                                                       NY.

    FOR RESPONDENT-APPELLANT:                          LAURI A. MAZZUCHETTI (Joseph Boyle and
                                                       Vincent P. Rao, II, on the brief), Kelley Drye &
                                                       Warren, LLP, Parsippany, NJ.
       Appeal from a judgment of the United States District Court for the Southern

District of New York (J. Paul Oetken, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Respondent-Appellant Sprint Spectrum, L.P. (“Sprint”) appeals the district court’s

opinion and order denying its motion to vacate the Arbitrator’s Partial Final Award

pursuant to § 10(a)(4) of the Federal Arbitration Act (“FAA”).1 We presume the parties’

familiarity with the facts and procedural history.

       We affirm substantially for the reasons stated in the district court’s careful opinion.

Contrary to Sprint’s argument on appeal, the Arbitrator did not exceed her authority by

making any ruling as to “what actions Emilio can or cannot take in a judicial forum.”

Sprint Br. 3. As we have already decided, the parties “clearly and unmistakably”

committed gateway questions of arbitrability to the Arbitrator. Emilio v. Sprint Spectrum

L.P., 508 F. App’x 3, 5-6 (2d Cir. 2013). The Arbitrator simply ruled that Sprint could

not be compelled to proceed with class arbitration under the Supreme Court’s decision in

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), and Emilio could

not be compelled to proceed with bilateral arbitration under Kansas law, which the

arbitration agreement stated would govern. The Arbitrator did nothing more than



       1
        This is our third foray into this case and Sprint’s second attempt to have us
intervene in the arbitration. See Emilio v. Sprint Spectrum L.P., 508 F. App’x 3 (2d Cir.
2013); Emilio v. Sprint Spectrum, L.P., 315 F. App’x 322 (2d Cir. 2009).

                                              2
construe the parties’ contract in order to decide the questions of arbitrability that the

parties submitted to her.

       Whether or not we agree with the Arbitrator’s construction of the contract or of the

Kansas law by which it is governed, the parties bargained for the Arbitrator’s

construction, not ours. “Only if the arbitrator acts outside the scope of h[er] contractually

delegated authority—issuing an award that simply reflects h[er] own notions of economic

justice rather than drawing its essence from the contract—may a court overturn h[er]

determination.” Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2068 (2013)

(internal quotation marks and alterations omitted). Sprint argues that the Arbitrator’s

conclusion that, in effect, the dispute is not arbitrable, either as a class or individual

action, must come from outside the contract because the contract provides for arbitration.

Despite its superficial appeal, that argument is nothing more than a disagreement with the

Arbitrator’s analysis. Correct or not, that analysis proceeds entirely from within the terms

of the agreement and the law chosen by the parties to govern it. “If the arbitrator has

provided even a barely colorable justification for his or her interpretation of the contract,

the award must stand.” Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 222 (2d

Cir. 2002). To say the very least, that minimal standard is met here.

       Nor do we find that the Arbitrator manifestly disregarded the law. To find a

manifest disregard of law under our precedents,2 a court must consider “first, whether the

       2
        We assume, as we have in the past, that these precedents remain good law despite
the Supreme Court’s reservation of whether “manifest disregard” is a valid reason to
vacate an arbitration award. See Schwartz v. Merrill Lynch & Co., 665 F.3d 444, 452 (2d
                                               3
governing law alleged to have been ignored by the arbitrator[] was well defined, explicit,

and clearly applicable, and, second, whether the arbitrator knew about the existence of a

clearly governing legal principle but decided to ignore it or pay no attention to it.” Jock

v. Sterling Jewelers Inc., 646 F.3d 113, 121 n.1 (2d Cir. 2011) (internal quotation marks

omitted). Sprint’s reliance on AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740

(2011), decided after the Partial Final Award, is self-defeating: the Arbitrator could not

have ignored governing law that did not yet exist when she issued her decision. The

district court ably addressed Sprint’s alternative arguments that the Arbitrator manifestly

disregarded pre-Concepcion law and misconstrued the Kansas Consumer Protection Act.

The Arbitrator’s rulings, even if incorrect, were not so “‘beyond and different from mere

error in the law’” as to constitute a manifest disregard of clearly applicable, controlling

law. Jock, 646 F.3d at 121 n.1, quoting Westerbeke, 304 F.3d at 208.3




Cir. 2011); Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011); T.Co Metals,
LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 340 (2d Cir. 2010).
       3
        We need not, and therefore do not, express any view on whether a similar
decision by an arbitrator today, whose attention has been called to Concepcion, would be
defensible. We note only that Concepcion changes the legal landscape, and gives
considerable force to the argument that the FAA’s broad preemption of state laws
invalidating class arbitration waivers would apply to the Kansas statute at issue here. See
Concepcion, 131 S. Ct. at 1751-53. The Arbitrator’s Partial Final Award in this case
issued during the interlude between the Supreme Court’s decisions in Stolt-Nielsen and
Concepcion. The Arbitrator’s failure to anticipate Concepcion cannot constitute manifest
disregard of the law applicable at the time she decided the case.
                                              4
      We have considered Sprint’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk




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