                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 30 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



VALUESELLING ASSOCIATES, LLC, a                  No. 11-56229
California limited liability company,
                                                 D.C. No. 3:09-cv-01493-JM-MDD
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

KEVIN TEMPLE, an individual;
ENTERPRISE SELLING GROUP,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                        Argued and Submitted April 8, 2013
                               Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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             Appellant ValueSelling Associates, LLC (VSA) appeals the district

court’s denial of its motion to vacate, modify, or correct an arbitration award. We

affirm.




      1.     We may vacate an award under the Federal Arbitration Act only if the

award “fails to draw its essence from the agreement,” or “exhibits a manifest

disregard of law.” Biller v. Toyota Motor Corp., 668 F.3d 655, 665 (9th Cir. 2012)

(citations and internal quotation marks omitted).




      2.     VSA points to nothing in the arbitration record that the district court

should have reviewed to warrant vacatur, modification, or correction of the

arbitration award. In keeping with the intrinsic / extrinsic test set out in Mattel,

Inc. v. MGA Entertainment, 616 F.3d 904, 913-14 (9th Cir. 2010), as amended, the

arbitrator determined that the similar components of the Value Selling Program

(VSP) and the Enterprise Selling Program (ESP) were not entitled to copyright

protection and, alternatively, were neither “substantially similar,” nor “virtually

identical.” These legal conclusions, even if erroneous, do not evince “manifest

disregard” of the law. Matthews v. Nat’l Football League Mgmt. Council, 688

F.3d 1107, 1115 (9th Cir. 2012) (“For an arbitrator’s award to be in manifest


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disregard of the law, it must be clear from the record that the arbitrator recognized

the applicable law and then ignored it. . . .”) (citation and alteration omitted).




      3.       The agreements in this case compelled arbitration of “[a]ny dispute,

controversy, or question arising under, out of or relating to” the purchase of VSA

and the subsequent termination of Temple’s rights to market VSA products. In its

submission to the arbitrator, VSA alleged that Temple’s ESP infringed VSA

copyrights. Accordingly, the arbitrator acted within his authority when he

addressed copyright infringement, including whether the VSP components were

copyrightable. See Schoenduve Corp. v. Lucent Tech., Inc., 442 F.3d 727, 732 (9th

Cir. 2006) (holding that an “arbitrator’s authority is determined by the contract

requiring arbitration as well as by the parties’ definition of the issues to be

submitted in the submission agreement”).




      4.     Our power to modify or correct the arbitration award is circumscribed

by 9 U.S.C. § 11(b), which provides that a court “may” modify or correct an award

when “the arbitrators have awarded upon a matter not submitted to them, unless it

is a matter not affecting the merits of the decision upon the matter submitted.” As

previously discussed, the arbitrator’s ruling addressing copyright protection for


                                            3
VSP components was within the scope of the matter submitted to him. Therefore,

we may not modify this portion of the award. See 9 U.S.C. § 11(b).




      AFFIRMED.




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