                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 12-4094
                                _____________

                             CD&L REALTY LLC,

                                                    Appellant.

                                       v.

   OWENS ILLINOIS, INC.; OWENS-BROCKWAY GLASS CONTAINER INC.


                 On Appeal from the United States District Court
                          for the District of New Jersey
                       (District Court No. 1-11-cv-07248)
                   District Judge: Honorable Renee M. Bumb



                   Submitted under Third Circuit LAR 34.1 (a)
                               on July 15, 2013


                            (Filed: August 20, 2013)


              Before: RENDELL, SMITH and ROTH, Circuit Judges



                                 OPINION


RENDELL, Circuit Judge:



                                       1
       Appellant CD&L Realty LLC appeals the District Court’s order confirming an

arbitration award dismissing CD&L’s claims against Appellee Owens-Brockway Glass

Container, Inc. For the reasons discussed below, we will affirm.

                                              I.

       In June 2000, CD&L entered into a Purchase Sale Agreement (“PSA”) with

Owens-Brockway Glass Container, Inc. (“Owens-Brockway”) to purchase a former glass

manufacturing property in New Jersey. The PSA contained an arbitration clause that

required the parties to arbitrate any dispute arising out of the transaction, and provided

that any arbitration award would be final and binding on the parties.

       On August 6, 2010, CD&L filed a citizen suit notice under the New Jersey

Environmental Rights Act (“ERA”) and a demand for arbitration against Owens-

Brockway for a “[c]ommercial dispute arising from a Sale Agreement and the Breach

thereof.” (J.A. 548.) On February 15, 2011, CD&L amended its demand, asserting that

Owens-Brockway concealed certain facts about the condition of the property before the

parties executed the PSA and that since signing the PSA, Owens-Brockway had not

fulfilled its obligations to remediate the property.

       On April 14, 2011—eight months after CD&L filed its arbitration demand—

CD&L filed a motion claiming that its New Jersey statutory claims were not properly part

of the arbitration proceedings. In response, the Arbitrator asked CD&L to re-plead its

claims with more specificity. CD&L complied, and on May 16, 2011 amended its

demand a second time, advancing claims under the New Jersey Industrial Site Recovery

Act (“IRSA”), the ERA, and the New Jersey Consumer Fraud Act. In addition, CD&L

                                              2
contended that Owens-Brockway fraudulently induced it to sign the PSA. CD&L argued

that each of these claims rendered the PSA either void or voidable. Following CD&L’s

May 16 filing, the parties briefed the Arbitrator’s jurisdiction over CD&L’s statutory

claims. On June 8, 2011, the Arbitrator held that it had jurisdiction over CD&L’s claims,

and on November 9, 2011, after fact and expert discovery, pre-hearing briefing, a two-

day arbitration hearing, and post-hearing briefing, the Arbitrator issued a final award

dismissing all claims with prejudice.

       On November 15, 2011, CD&L filed a complaint and order to show cause in New

Jersey Superior Court requesting the court to modify and vacate in part the arbitration

award and declare the PSA void.1 Appellants removed the case to the United States

District Court for the District of New Jersey and filed a motion to confirm the arbitration

award. The District Court rejected the reasons that CD&L advanced in support of

vacating the award, and granted Defendants’ motion. CD&L now appeals.




                                            II.2

       We review a district court’s confirmation of an arbitration award de novo. China

Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 278–79 (3d Cir.

2003). We afford deference to the arbitrator’s decision and do not review its decision for


1
  In its complaint, CD&L named both Owens-Brockway and Owens-Illinois, even though
Owens-Illinois was not a party to the contract or to the arbitration.
2
  The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291.
                                             3
factual or legal error. Brentwood Med. Assocs. v. United Mine Workers of Am., 396 F.3d

237, 240 (3d Cir. 2005); China Minmetals Materials Imp. & Exp. Co., 334 F.3d at 278-

79. If we find that the arbitrator “makes a good faith attempt to [interpret and enforce the

contract], even serious errors of law or fact will not subject his award to vacatur.” Sutter

v. Oxford Health Plans LLC, 675 F.3d 215, 220 (3d Cir. 2012), aff’d, 133 S. Ct. 2064

(2013). Arbitration awards will be vacated “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). “[T]here must be absolutely no

support at all in the record justifying the arbitrator’s determinations for a court to deny

enforcement of an award.” Ario v. Underwriting Members of Synd. 53 At Lloyds, 618

F.3d 277, 295-96 (3d Cir. 2010) (quoting United Transp. Union Local 1589 v. Suburban

Transit Corp., 51 F.3d 367, 379 (3d Cir. 1995)).

                                             III.

       CD&L raises three issues on appeal. First, it argues that the PSA was void

because Owens-Brockway did not have the approval of the New Jersey Department of

Environmental Protection (NJDEP) to sell the property, and because this implicated the

existence of the contract, the District Court, not the Arbitrator had the authority to rule on

this issue. Second, CD&L argues that because the parties elected to arbitrate in New

Jersey, they intended the exclusive enforcement mechanisms of the New Jersey

Arbitration Act to apply. Finally, it maintains that the Arbitrator’s decision ignored the

remediation requirements for the property, and as a result, should have been vacated on



                                              4
the grounds that it was in manifest disregard of New Jersey environmental laws and is

contrary to public policy. We find that none of these arguments have merit.

                              a. The Arbitrator’s Jurisdiction

       CD&L contends that under Sandvik AB v. Advent Int’l Corp, 220 F.3d 99 (3d Cir.

2000), the District Court, not the Arbitrator, had the authority to address CD&L’s

argument that the PSA was void—and therefore non-existent—because Owens-

Brockway did not obtain NJDEP’s approval to sell the property. We disagree with

CD&L’s premise that the failure to obtain NJDEP’s approval rendered the PSA void.

N.J.S.A. 13:1k-13 states that “[f]ailure of the transferor to perform a remediation and

obtain department approval thereof as required pursuant to the provision of this act is

grounds for voiding the sale. . . .” (emphasis added). By the statute’s own terms, failure

to obtain NJDEP’s approval is simply grounds for CD&L’s declaring the PSA

unenforceable—it does not implicate its formation. It merely provided a grounds for

CD&L to avoid its obligations if it so desired. Thus, we agree with the Arbitrator that

because the issue presented did not go to the existence of the contract, but, rather its

validity or enforceability, that the Arbitrator had the authority to resolve the dispute. See

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006); see also

SBRMCOA, LLC v. Bayside Resort, Inc., 707 F.3d 267, 274 (3d Cir. 2013).

       With respect to its enforceability, the Arbitrator determined that CD&L’s “belated

presentation of [its ISRA] argument [was] . . . time barred because [CD&L] clearly knew

of the situation at closing and waived any objection then and through years of failure to

raise it until presenting that argument in this proceeding.” (J.A. 63.) CD&L had the

                                              5
opportunity to declare the PSA unenforceable early on but did not do so. Thus, we agree

with the Arbitrator that N.J.S.A. 13:1k-13 was not a bar to the enforcement of the PSA.

                                         b. The FAA

       CD&L argues that the District Court erred in reviewing the arbitration award

under the FAA because the New Jersey Arbitration Act applies. Although the PSA does

not mention the New Jersey Arbitration Act, CD&L contends that the PSA’s selection of

New Jersey as the arbitration venue indicates the parties’ intent for the Act to apply. We

disagree. It is well established that absent clear intent to apply a non-FAA standard, the

FAA standard is to be applied. Ario, 618 F.3d at 295. Thus, we will affirm the District

Court’s decision to apply the FAA.

                    c. Manifest Disregard of the Law & Public Policy

       CD&L’s final argument is that the Arbitrator’s award is in manifest disregard of

New Jersey environmental laws and violates public policy. Both of these contentions are

based on CD&L’s assertion that Defendants violated the ISRA by not sufficiently

remediating the property.

       We agree with the District Court that the Arbitrator’s award did not disregard the

law or violate public policy because it resolved only the parties’ private rights under the

contract. The arbitration award does not excuse Defendants from complying with any

environmental laws, and NJDEP still has the power to pursue various remedies against

either party pursuant to its obligations under New Jersey environmental law. As the

arbitration award did not run afoul of any New Jersey environmental policy or manifestly



                                             6
disregard any law, we will affirm the District Court’s order affirming the arbitration

award. 3

                                            IV.

       For the reasons stated above, we will affirm the order of the District Court.




3
 We assume, without deciding, that the “violation of public policy” and the “manifest
disregard of law” grounds for vacatur survive Hall St. Assocs., LLC v. Mattel, Inc., 552
U.S. 576 (2008).
                                             7
