17-3963
Landau v. Rheinold


                                     In the
                         United States Court of Appeals
                            For the Second Circuit

                                           August Term, 2018

                                      Submitted: February 25, 2019
                                         Decided: May 1, 2019

                                          Docket No. 17-3963


                                     ASHER BARUCH LANDAU, et al.,1

                                            Petitioners-Appellees,

                                                      v.

                                          BARUCH EISENBERG,

                                           Respondent-Appellant,

                                                      v.

                                       ZVI ARYE RHEINOLD, et al.,

                                           Respondents-Appellees,

                                         YAKOV BERGER, et al.,

                                                Respondents.


                              Appeal from the United States District Court
                                 for the Eastern District of New York
                                      No.15-cv-4811, Amon, Judge.

1
    For brevity’s sake, we have omitted the numerous other parties to this appeal from this caption.

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Before: KATZMANN, Chief Judge, DRONEY and SULLIVAN, Circuit Judges.

         Respondent-Appellant Baruch Eisenberg appeals the district court’s confirmation of an
arbitration award pursuant to 9 U.S.C. § 9 in favor of Petitioners-Appellees Asher Baruch Landau and
other individuals. The parties, two groups from the Bobov Hasidic Jewish community in Brooklyn,
New York, agreed to arbitrate certain disputes before a rabbinical tribunal. The tribunal ruled that
Petitioners-Appellees owned the “Bobov” trademark, and the district court confirmed that decision.
We hold that district courts should “look through” a 9 U.S.C. § 4 petition to the underlying
controversy to determine whether subject matter jurisdiction exists to confirm the arbitration award
pursuant to 9 U.S.C. § 9. We further conclude that the district court properly exercised jurisdiction
and confirmed the award.

       AFFIRMED.

                                       ALAN VINEGRAD, David Z. Pinsky, Covington & Burling LLP,
                                       New York, NY, for Petitioners-Appellees.

                                       BARUCH EISENBERG, pro se, Brooklyn, NY.

PER CURIAM.

       In June 2005, two groups from the Bobov Hasidic Jewish community in Brooklyn, New York,

agreed to arbitrate certain disputes before a rabbinical tribunal. Petitioners-appellees asserted that

“Bobov” was “a trademark within the meaning of section 45 of the Lanham Act . . . because for

decades, the word ‘Bobov’ has been used in commerce to distinguish the goods and services of the

Bobov community.” Central to the dispute was whether the respondents “had the right to use the

name and mark BOBOV for its new Hasidic community.” The arbitration agreement provided that a

panel consisting of five rabbis would determine, among other things, who would have the right to be

referred to as Bobov, and to publish and distribute books and merchandise under that name. The

tribunal issued its decision in August 2014, ruling that petitioners owned the mark, were entitled to

register it, and that any party could confirm the award in secular court. Petitioners sought confirmation

of the arbitration award in district court under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 9. Of

the 613 respondents served, only Baruch Eisenberg filed an opposition. He raised subject matter
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jurisdiction, venue, and merits-based arguments. The district court held that it had subject matter

jurisdiction over the petition, rejected his other arguments, and confirmed the award. Eisenberg

appealed.2

        We hold that the district court properly “looked through” the arbitration petition to the

underlying controversy to determine that it had subject matter jurisdiction, and that the district court

did not err in confirming the arbitration award.

                                   I.      Subject Matter Jurisdiction

        Eisenberg contests whether the district court properly exercised subject matter jurisdiction over

this case. “[B]efore deciding any case we are required to assure ourselves that the case is properly

within our subject matter jurisdiction.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014).3 This

Court reviews issues of subject matter jurisdiction, which turn on questions of law, de novo. Doscher v.

Sea Port Group Secs., LLC, 832 F.3d 372, 374 (2d Cir. 2016). The party asserting subject matter

jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction

exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

        The FAA is “something of an anomaly in the realm of federal legislation: It bestows no federal

jurisdiction but rather requires for access to a federal forum an independent jurisdictional basis over

the parties’ dispute.” Vaden v. Discover Bank, 556 U.S. 49, 59 (2009). Accordingly, although FAA § 9

provides, in relevant part, that parties to an arbitration agreement may apply for confirmation of an



2
 On appeal, Eisenberg reiterates, in summary fashion, his venue and merits-based arguments. He does
not, however, press any substantive arguments, such as explaining why the district court’s rulings that
venue was proper in district court, or that his merits-based arguments were time-barred, were incorrect.
Accordingly, those arguments are waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.
1995).
3
 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes,
and citations.
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arbitration award in the federal court in the district where the award was made, subject matter

jurisdiction does not exist simply because a party wishes to confirm an award.

         We have not opined on whether federal subject matter jurisdiction exists over a motion to

confirm an arbitration award under FAA § 9. But both the Supreme Court in Vaden and this Court in

Doscher have provided guidance. In Vaden, the Supreme Court addressed whether federal subject matter

jurisdiction existed over petitions to compel arbitration, pursuant to 9 U.S.C. § 4. It held that “§ 4 of

the FAA does not enlarge federal-court jurisdiction,” Vaden, 556 U.S. at 66, and that district courts

should “look through” the petition to the underlying substantive controversy to determine whether the

claims arose under federal law, id. at 62. Specifically, a district court should “assume the absence of the

arbitration agreement and determine whether it would have jurisdiction under title 28 without it.” Id.

at 63. Employing this approach, the Court determined that the controversy consisted of a state court

suit for balance due on an account, which was not amenable to federal subject matter jurisdiction. Id.

at 66.

         Seven years later, in Doscher, we held that courts should apply Vaden’s look-through approach

to petitions to vacate and modify arbitration awards under 9 U.S.C. § 10. See Doscher, 832 F.3d at 381–

89. Although Doscher addressed § 10, its logic applies equally to § 9. First, we held that it was not

“logically possible” for courts to have subject matter jurisdiction over a dispute for the purpose of § 4

petitions but not “any of the Act’s other remedies,” given that the Supreme Court held that § 4 did not

expand federal jurisdiction. Id. at 384. In other words, “how can a federal court’s jurisdiction under

the same jurisdictional statute differ between § 4 and all other remedies under the Act?” See id. at 383.

Second, Doscher held that applying the look-through approach to petitions under § 10 was consistent

with the FAA’s pro-arbitration purpose: “[I]f a federal court would possess federal-question jurisdiction

over the dispute when pleaded in a complaint, the federal courts are also able to enforce Congress’s

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narrow and defined remedies in the same controversy.” Id. at 386. Third, we noted that “there is a

certain absurdity to an interpretation that permits parties to file motions to compel arbitration in any

case where the underlying dispute raises a federal question but precludes them from seeking the same

federal court’s aid under the Act’s other remedial provisions related to the same dispute.” Id. at 387.

        These justifications apply with equal force to § 9, which contains “substantially identical

language to § 10.” Id. at 379 n.10; see also Ortiz-Espinosa v. BBVA Secs. of Puerto Rico, Inc., 852 F.3d 36,

45–47 (1st Cir. 2017) (relying on Doscher and holding that courts should adopt the look-through

approach when determining subject matter jurisdiction under § 9 of the FAA). We see no reason to

employ a different approach for § 9 than § 10, and so hold that a district court should employ the “look

through” approach described in Doscher when determining subject matter jurisdiction over petitions to

confirm arbitration awards under § 9.

        Applying the “look through” approach here, the district court properly determined that it had

subject matter jurisdiction to confirm the arbitration award. The substantive controversy underlying

the petition involved questions of federal trademark law, over which district courts unquestionably

possess subject matter jurisdiction. See 28 U.S.C. § 1338. Because the district court would have had

jurisdiction over the underlying substantive controversy, it had jurisdiction to confirm the arbitration

award pursuant to FAA § 9.

                                   II.     Confirmation of the Award

        This Court reviews a district court’s decision to confirm an arbitration award de novo on

questions of law and for clear error on findings of fact. Nat’l Football League Mgmt. Council v. Nat’l

Football League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016). “Arbitration awards are subject to very

limited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes

efficiently and avoiding long and expensive litigation.” Rich v. Spartis, 516 F.3d 75, 81 (2d Cir. 2008).

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The FAA creates a “strong presumption in favor of enforcing arbitration awards” and courts have an

“extremely limited” role in reviewing such awards. Wall Street Assocs., L.P. v. Becker Paribas Inc., 27 F.3d

845, 849 (2d Cir. 1994). In other words, “an arbitration award should be enforced, despite a court’s

disagreement with it on the merits, if there is a barely colorable justification for the outcome reached.”

Landy Michaels Realty Corp. v. Local 32B–32J Serv. Employees Int’l, 954 F.2d 794, 797 (2d Cir. 1992).

        Given this extremely deferential standard of review, the district court did not err in confirming

the arbitration award as to the 613 respondents who had been served. The rabbinical tribunal assessed

the parties’ evidence and arguments over a nine-year period. The district court found no indication

that the award was procured “through fraud or dishonesty, or that any other basis for overturning the

award exists,” and an independent review of the record provides no basis for questioning the award.

The district court properly turned aside Eisenberg’s non-jurisdictional arguments, found the petition

“effectively” unopposed and that no issue of material fact precluded confirmation, and did not err in

confirming the award.

        For the foregoing reasons, the judgment of the district court is AFFIRMED.




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