Kyocera Corporation, Plaintiff-Counter-Defendant-Appellant v. Prudential-Bache Trade Services, Inc., Dba Prudential-Bache Trade Corporation Prudential Capital & Investment Services, Inc. Lapine Technology Corporation Lapine Holding Co., Defendants-Counter-Claimants-Appellees. Lapine Technology Corporation v. Kyocera Corporation, Lapine Technology Corporation, Plaintiff-Counter-Claim-Defendant-Appellee. v. Kyocera Corporation, Defendant-Counter-Claimant-Plaintiff-Appellant v. Prudential-Bache Trade Services, Inc., Dba Prudential-Bache Trade Corporation Prudential Capital & Investment Services, Inc., Defendants-Counter-Claimants-Appellees

In 1984, Kyocera Corporation ("Kyocera"), Prudential-Bache Trade Corporation ("Prudential"), and the newly formed LaPine Technology Corporation ("LaPine") began a venture to produce and market computer disk drives. LaPine licensed its proprietary drive design to Kyocera, which manufactured the drives. Prudential's role was generally to stabilize the cash flow of the enterprise: in addition to financing LaPine's inventory and accounts receivable, Prudential purchased, through a subsidiary, the LaPine drives from Kyocera and resold the drives on credit to LaPine, which in turn marketed the drives to its customers.

By the summer of 1986, LaPine — which had never earned a profit — had fallen into serious managerial and financial difficulties. On August 13 and 21, 1986, Kyocera gave written notice that it considered LaPine and Prudential in default due to the failure to pay for delivered drives. Shortly thereafter, Kyocera, Prudential, and LaPine began discussions regarding LaPine's reorganization and a restructuring of the relationship among the three companies.

The parties differ on the terms of the final agreement that resulted from the ensuing exchanges. In October and November of 1986, both a general "Definitive Agreement" and a subsidiary, more detailed "Amended Trading Agreement" were prepared. The primary dispute arises out of one term of the "Amended Trading Agreement": LaPine and Prudential claim that all parties agreed that Prudential would no longer purchase drives from Kyocera and resell them to LaPine, and that LaPine would instead purchase drives directly from Kyocera; Kyocera maintains that it never approved any such limitation of Prudential's role. When Kyocera refused to execute the "Amended Trading Agreement" as presented by LaPine and Prudential, LaPine notified Kyocera that it considered Kyocera in breach of contract. On May 7, 1987, LaPine instituted proceedings in federal district court, seeking damages and an injunction compelling Kyocera to continue supplying drives under the alleged terms of the contract.

On September 2, 1987, the district court granted Kyocera's motion to compel arbitration, and a panel of three arbitrators was convened.1 Arbitration proceeded in two phases. The arbitration panel first determined in "Phase I" that, under California law,2 Kyocera had entered into a contract by accepting LaPine and Prudential's version of the "Amended Trading Agreement," which required Kyocera to sell drives directly to LaPine. Again applying California law, the arbitrators then determined in "Phase II" that Kyocera breached this contract and that the breach was the proximate cause of damage to LaPine. On August 25, 1994, the arbitrators issued their final decision, unanimously awarding LaPine and Prudential $243,133,881 in damages and prejudgment interest against Kyocera.3

Kyocera filed a motion in the district court to "Vacate, Modify and Correct the Arbitral Award." The motion relied on the arbitration clause of the parties' "Definitive Agreement,"4 which stated that:

The arbitrators shall issue a written award which shall state the bases of the award and include detailed findings of fact and conclusions of law. The United States District Court for the Northern District of California may enter judgment upon any award, either by confirming the award or by vacating, modifying or correcting the award. The Court shall vacate, modify or correct any award: (i) based upon any of the grounds referred to in the Federal Arbitration Act, (ii) where the arbitrators' findings of fact are not supported by substantial evidence, or (iii) where the arbitrators' conclusions of law are erroneous.

Accordingly, Kyocera asserted that (i) there existed grounds for vacatur pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16 (1994), (ii) the arbitration panel's factual findings were unsupported by substantial evidence, and (iii) the panel made various errors of law. LaPine and Prudential, in turn, moved to confirm the panel's award.

The district court denied Kyocera's motion and granted the motion of LaPine and Prudential. Lapine Tech. Corp. v. Kyocera Corp., 909 F.Supp. 697 (N.D.Cal.1995). The court concluded that the Federal Arbitration Act granted federal courts the jurisdiction to review arbitration decisions only on certain enumerated grounds, and that private parties could not by contract enlarge this statutory standard of review. See id. at 705. The district court therefore evaluated Kyocera's claim only under the standard set forth in 9 U.S.C. §§ 10-11. Because the court found no basis for vacatur, modification, or correction under this standard, it denied Kyocera's motion to vacate, granted LaPine and Prudential's motion to confirm, and entered judgment.5 See id. at 706-09.

Kyocera timely appealed. It argued, almost exclusively, that the district court erred in applying only the Federal Arbitration Act standard, and not the broader contractual provisions for review. In just two short pages and two footnotes of its 77-page opening brief on appeal, Kyocera contended that it qualified for relief under the statutory standard of review. The only such claim argued at any length was Kyocera's claim under 9 U.S.C. § 10(a)(4), which permits vacatur "where the arbitrators exceeded their powers"; Kyocera argued that the arbitration panel "exceeded its powers" by granting an award based on legal errors when the parties had only empowered the panel to apply California law correctly. Kyocera also summarily asserted that the arbitration award was procured by "fraud or undue means" under 9 U.S.C. § 10(a)(1), because LaPine improperly induced it to agree to arbitration by asserting that an expanded judicial review provision would be enforceable.

A divided panel of this court reversed the district court's determination that it was bound to apply only the statutory grounds for review, holding that federal court review of an arbitration agreement is not necessarily limited to the standards set forth in the Federal Arbitration Act. See LaPine Tech. Corp. v. Kyocera Corp., 130 F.3d 884, 888 (9th Cir.1997) [hereinafter LaPine I]. Rather, the majority recognized that Supreme Court precedent required that private agreements to arbitrate be implemented on their own terms and according to their own procedural rules, and then extended that principle to provisions regarding the grounds on which federal courts may review arbitration proceedings. See id. The majority held that when parties

resort to the use of an arbitral tribunal[,]... they may leave in place the limited court review provided by §§ 10 and 11 of the FAA, or they may agree to remove that insulation and subject the result to a more searching court review of the arbitral tribunal's decision, for example a review for substantial evidence and errors of law.

Id. at 890. The majority then declined to review the district court's decision rejecting Kyocera's arguments under the statutory standard.6 Therefore, although we affirmed the district court's determination that Kyocera presented no basis for modifying the arbitral award on statutory grounds, id. at 887 n. 2, we remanded to allow the district court to apply the parties' contractually expanded standard of review of unsupported factual findings or errors of law,7 id. at 891. No party requested en banc rehearing of our decision.

Judge Kozinski provided the deciding vote in LaPine I, although he noted in his tie-breaking concurrence that the question presented was "closer than most." Id. at 891 (Kozinski, J., concurring). He recognized that although the Supreme Court cases "say that parties may set the time, place and manner of arbitration[,] none says that private parties may tell the federal courts how to conduct their business." Id. He further acknowledged that "[n]owhere has Congress authorized courts to review arbitral awards under the standard the parties here adopted." Id. Nevertheless, despite the fact that the private parties' agreed-upon standard of review was neither authorized by Congress nor compelled by the Supreme Court, Judge Kozinski concluded that the "supported by substantial evidence or erroneous legal conclusion" standard was sufficiently similar to the standard used in reviewing administrative and bankruptcy decisions, and the standard used in reviewing state court decisions on habeas corpus, to permit the district court to apply the contractual agreement's standard of review without difficulty. His decision would have been different, he stated, "if the agreement provided that the district judge would review the award by flipping a coin or studying the entrails of a dead fowl." Id.

Judge Mayer dissented.8 He stated simply and clearly that:

[w]hether to arbitrate, what to arbitrate, how to arbitrate, and when to arbitrate are matters that parties may specify contractually. See Volt Info. [Scis. Inc. v. Bd.] of Trustees, [489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488] (1989). However, Kyocera cites no authority explicitly empowering litigants to dictate how an Article III court must review an arbitration decision. Absent this, they may not. Should parties desire more scrutiny than the Federal Arbitration Act, 9 U.S.C. §§ 10-11 (1994), authorizes courts to apply, "they can contract for an appellate arbitration panel to review the arbitrator's award[;] they cannot contract for judicial review of that award." Chicago Typographical Union v. Chicago Sun-Times[, Inc.], 935 F.2d 1501, 1505 (7th Cir.1991). I would affirm the district court's self-restraint.

Id. (Mayer, J., dissenting).

Given that LaPine I affirmed the district court's application of the statutory grounds for review, the court on remand reviewed the arbitration decision according to the non-statutory standards specified in § 8.10 of the "Definitive Agreement," addressing each arbitration phase separately. On April 4, 2000, the district court confirmed the arbitration panel's "Phase I" decision on contract formation. See Lapine Tech. Corp. v. Kyocera Corp., 2000 WL 765556 (N.D.Cal.2000) (unpublished order). The court held that the arbitrators' "conclusions are not only legally sound but they are amply supported by the undisputed facts." Id. at *13.

On October 2, 2000, the district court similarly confirmed most of the arbitrators' "Phase II" decision on contract breach and damages. However, the court "vacated" Finding of Fact number 135 — which recited that LaPine achieved an operating profit in 1987 when in fact the accounting record showed an operating loss for that year — and "remanded" the case to the arbitral panel "for its consideration as to the effect, if any, of the vacation of Finding of Fact 135 on its damage award."

Although one panel member was deceased, the remaining two members of the arbitral panel issued a letter stating that the vacatur of Finding of Fact 135 had no effect on the damages award, because the panel's valuation methodology did not rely on actual profit figures for that year. On March 6, 2001, the district court confirmed the arbitrators' "Phase II" award, and on March 9, the court entered judgment in favor of Prudential and LaPine.9 Again, Kyocera timely appealed.

A three-judge panel of this court unanimously affirmed the district court's confirmation of the arbitral panel's award. Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 299 F.3d 769 (9th Cir.2002) [hereinafter LaPine II]. The panel first rejected Kyocera's argument that the district court, upon concluding that one finding of the arbitral panel was unsubstantiated, was required to vacate the entire award; rather, it found that the court acted properly under its authority to "modify or correct" an award. Id. at 779. It then held that the district court did not err in remanding to the arbitral panel to allow the arbitrators to clarify and interpret, rather than reexamine the merits of, the award. Id. at 780.

LaPine II then turned to the merits of the arbitral panel's decision and affirmed the district court's assessment of the arbitrators' factual findings and legal conclusions. Applying California law, LaPine II held that on the record before it, the arbitrators did not err in finding that Kyocera entered into a contract for the direct sale of drives to LaPine, that Kyocera was not excused from performance under the contract, that Kyocera failed to perform its contractual obligations, and that this breach foreseeably caused LaPine damage; it also held that the arbitral panel did not err in calculating the amount of damages required to compensate LaPine for the breach. Id. at 780-93. In addition, the LaPine II panel noted that because the LaPine I panel found that Kyocera had waived any challenge to the district court's decision on statutory grounds, Kyocera was barred in LaPine II by the law of the case from contesting the arbitral panel's decision on the grounds enumerated in the Federal Arbitration Act. Id. at 793.10

Kyocera timely filed a request for rehearing en banc, and on December 17, 2002, we granted that request.11 We ordered and received supplemental briefing devoted entirely to the LaPine I issue of private parties' power to dictate the grounds for judicial review of an arbitration award, and the ramifications thereof. We now affirm the district court's confirmation of the arbitral panel's award. In so doing, we correct the law of the circuit regarding the proper standard for review of arbitral decisions under the Federal Arbitration Act.

Under the broad standard of review approved in LaPine I, Kyocera presses at least twenty-five distinct grounds for vacating or correcting the decision of the arbitral panel due to alleged errors of law and unsubstantiated findings of fact. To decide a number of these issues — including whether it is reasonable for estoppel purposes to rely on an agreement not yet approved by a board of directors when the agreement takes effect only on board approval; whether an injured entity properly mitigates its damages when it refuses partial relief provided pursuant to an order of the court; and whether damages for the destroyed business value of a dissolved business may be calculated as of any date other than the date of contractual breach — would require a detailed examination of California law and the application of that law to a factual record spanning several years and many thousands of pages.

In this case, we need not speculate as to whether the arbitration panel properly applied complex California contract law to a complex factual dispute, because we conclude that Congress has explicitly prescribed a much narrower role for federal courts reviewing arbitral decisions. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, enumerates limited grounds on which a federal court may vacate, modify, or correct an arbitral award. Neither erroneous legal conclusions nor unsubstantiated factual findings justify federal court review of an arbitral award under the statute, which is unambiguous in this regard. Because the Constitution reserves to Congress the power to determine the standards by which federal courts render decisions, and because Congress has specified the exclusive standard by which federal courts may review an arbitrator's decision, we hold that private parties may not contractually impose their own standard on the courts. We therefore review the arbitral panel's determination only on grounds authorized by the statute, and affirm the confirmation of the arbitration award.

A. Our Decision to Review the LaPine I Issue

Before addressing the merits of the matter, we briefly lay to rest any concerns regarding our authority, sitting as the en banc court, to decide the standard of review issue. As we recently stated in Summerlin v. Stewart, 309 F.3d 1193, 1193 (9th Cir.2002):

when a case is heard or reheard en banc, the en banc [court] assumes jurisdiction over the entire case, see 28 U.S.C. § 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. If the Court votes to hear or rehear a case en banc, the en banc [court] may, in its discretion, choose to limit the issues it considers. See, e.g., Rand v. Rowland, 154 F.3d 952, 954 n. 1 (9th Cir.1998); United States v. Perez, 116 F.3d 840, 843 n. 2 (9th Cir.1997). However, the en banc [court] is under no obligation to do so.

Accordingly, it is clear that because we have assumed jurisdiction over the case as a whole, we have the authority to decide the standard of review issue.

Our authority as an en banc court to decide the issue is not lessened by the fact that an earlier three-judge panel has issued a decision on the matter. It is clearly established that the final judgment of the LaPine I panel, though law of the case and therefore binding on subsequent three-judge panels of this circuit, does not bind the en banc court. See, e.g., Jeffries v. Wood, 114 F.3d 1484, 1492 (9th Cir.1997) (en banc); id. at 1512 n. 19 (Kozinski, J., dissenting); Watkins v. United States Army, 875 F.2d 699, 704 n. 8 (9th Cir.1989) (en banc).

It is also appropriate for this en banc court to decide the issue of the grounds on which federal courts may review arbitration decisions. The issue was squarely presented, extensively briefed by the parties, and explicitly addressed both by the district court and by a panel of our court. See Lapine, 909 F.Supp. at 705; LaPine I, 130 F.3d at 888-90. Additional briefing was ordered by and submitted to this en banc court on that question. The issue is dispositive of the case. The fact that we might instead decide on other grounds — for example, by reviewing each of the asserted errors of state law and allegedly unsubstantiated determinations of fact — whether the judgment affirmed in LaPine II is correct does not render our choice to decide the standard of review issue inappropriate. Indeed, it might prove not only appropriate but necessary for us to do so. Were we to bypass the standard-of-review issue initially, in favor of conducting the more extensive and burdensome factual and legal review required to resolve the case on non-statutory grounds, and were we to find that Kyocera should prevail on one of those grounds, we would nevertheless have to hold in favor of LaPine on the basis on which we now decide the case: that the contractually provided non-statutory grounds cannot serve to expand the standard of review that Congress has established.

In sum, two questions are properly before us, and we must determine the order in which we address them. When we are confronted with two properly presented issues, each of which might be dispositive, we may: (1) decide question 1 first, and depending on the outcome, then decide question 2; or (2) decide question 2 first, and depending on the outcome, then decide question 1. In most cases, we have unlimited discretion to choose which path to take.12 The two questions before us are: (1) whether the statutory standard of review may be expanded by contract, and (2) whether the arbitration panel arrived at erroneous legal conclusions and factual findings; either question might be dispositive. Question one, however, may greatly narrow the issues we need decide; moreover, we believe it to be more worthy of resolution by the court sitting en banc. Finally, for what it's worth, in the ordinary course of legal analysis, we would address the standard of review (question one) first. Accordingly, although we could appropriately consider either of the two questions first, we choose to begin with the proper scope of review under the Federal Arbitration Act.

As a final threshold matter, we acknowledge that the judgment of the LaPine I panel became final on December 31, 1997, and despite the fact that no party requested an en banc rehearing, we recognize that we could have taken the case en banc to resolve this issue at that time, before the phase of the litigation culminating in LaPine II. However, the fact that the court did not in 1998 vote on whether to resolve the issue en banc does not preclude our review now.13 Whether private parties may impose on a federal court a standard of review beyond that approved by Congress remains a "question of exceptional importance," FED. R. A PP. P. 35(a)(2), the answer to which may well affect large numbers of parties with critical contractual and statutory rights and billions of dollars at stake.14 Indeed, although Kyocera cites LaPine I's purported notoriety as a reason to avoid reaching the issue in this case, we believe that the prospect that others may rely on an erroneous decision militates strongly in favor of correcting any error sooner, rather than later.

The Supreme Court recently reached a similar conclusion when, in holding the Texas anti-sodomy statute unconstitutional in Lawrence v. Texas, ___ U.S. ___, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), it decided to rely on the due process clause, rather than the equal protection clause, and thus to overrule Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). One of the reasons that it chose the course it did was to enable it to eliminate erroneous precedent. Although it is regrettable that the parties in the instant case may unnecessarily have expended time and resources litigating issues not properly before a federal court, the inconvenience to these parties cannot prevent us from correcting a legal error of exceptional importance to future contracting parties and litigants within this circuit.

We now determine whether our decision in LaPine I, allowing private parties to impose on the federal courts a broader standard of review than the grounds authorized by statute, constitutes such an error. We begin with the text of the governing statute, the Federal Arbitration Act.

The Act states that if a party seeks a judicial order confirming an arbitration award, "the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title." 9 U.S.C. § 9 (emphasis added). Under the statute, "confirmation is required even in the face of erroneous findings of fact or misinterpretations of law." French v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d 902, 906 (9th Cir.1986) (internal quotation marks omitted). Rather, § 10 permits vacatur only:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) 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) (emphasis added). We have held that arbitrators "exceed their powers" in this regard not when they merely interpret or apply the governing law incorrectly, but when the award is "completely irrational," French, 784 F.2d at 906, or exhibits a "manifest disregard of law," Todd Shipyards Corp. v. Cunard Line, Ltd., 943 F.2d 1056, 1059-60 (9th Cir.1991). See also G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1105-06 (9th Cir.2003) (discussing the standard).

If vacatur is not warranted, section 11 allows a court to modify or correct an award:

(a) [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[;]

(b) [w]here 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[; or]

(c) [w]here the award is imperfect in matter of form not affecting the merits of the controversy.

9 U.S.C. § 11 (emphasis added).

In sum, the Federal Arbitration Act allows a federal court to correct a technical error, to strike all or a portion of an award pertaining to an issue not at all subject to arbitration, and to vacate an award that evidences affirmative misconduct in the arbitral process or the final result or that is completely irrational or exhibits a manifest disregard for the law. These grounds afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures.

Congress had good reason to preclude more expansive federal court review. Arbitration is a dispute resolution process designed, at least in theory, to respond to the wishes of the parties more flexibly and expeditiously than the federal courts' uniform rules of procedure allow. Proponents of arbitration cite its potential for speed and informality, see INT'L CT. OF ARB., INTRODUCTION TO ARBITRATION, at http:// www.iccwbo.org/court/english/arbitration/introduction.asp (visited June 30, 2003) (listing "speed and economy" among the "advantages of arbitration"); Lee Goldman, Contractually Expanded Review of Arbitration Awards, 8 HARV. NEGOT. L. REV. 171, 171 (Spring 2003) ("[A]rbitration can be faster, cheaper and more private than litigation."); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (noting "the simplicity, informality, and expedition of arbitration") — attributes not normally associated with federal trials. Broad judicial review of arbitration decisions could well jeopardize the very benefits of arbitration, rendering informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process.15 Congress's decision to permit sophisticated parties to trade the greater certainty of correct legal decisions by federal courts for the speed and flexibility of arbitration determinations is a reasonable legislative judgment that we have no authority to reject.

Despite Congress's reasonable decision to adopt a narrow standard for judicial review of arbitration decisions, and despite the fact that Congress nowhere intimated that the federal courts were authorized to apply any other standard, the LaPine I panel concluded that private parties may contract for a more expansive (or less deferential) standard of review. The Third and Fifth Circuits agree with this conclusion.16 See Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287 (3d Cir.2001) (citing LaPine I) (cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 423 (2001)); Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993 (5th Cir.1995). These circuits generally emphasize that the purpose of the Federal Arbitration Act is to enforce the terms of private arbitration agreements, including terms specifying the scope of review of arbitration decisions. More specifically, these circuits find support for upholding the parties' contractual choice of grounds for review in Volt Information Sciences v. Board of Trustees, 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). In Volt, the Supreme Court determined that "[j]ust as[private parties] may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted." Id. at 479, 109 S.Ct. 1248. The circuits mentioned above would expand Volt so as to provide that, just as the Federal Arbitration Act's default rules for how arbitration is to be conducted may be superceded by private contract, see id. at 476-77, 479, 109 S.Ct. 1248, so too may the Act's statutory standards governing federal court review, see 9 U.S.C. §§ 10-11, be superseded by private contract.

Three circuits appear to reject the proposition that private parties may dictate how federal courts shall conduct their proceedings. The Tenth Circuit has directly held that private parties may not contract for a standard of review more expansive than that stated in the Federal Arbitration Act. See Bowen v. Amoco Pipeline Co., 254 F.3d 925 (10th Cir.2001). In a decision construing section 301 of the Taft-Hartley Act but "look[ing] to" the Federal Arbitration Act for guidance, the Seventh Circuit held:

Federal courts do not review the soundness of arbitration awards.... If the parties want, they can contract for an appellate arbitration panel to review the arbitrator's award. But they cannot contract for judicial review of that award; federal jurisdiction cannot be created by contract. Unless the award was procured by fraud, or the arbitrator had a serious conflict of interest — circumstances that invalidate the contractual commitment to abide by the arbitrator's result — his interpretation of the contract binds the court asked to enforce the award or set it aside. The court is forbidden to substitute its own interpretation even if convinced that the arbitrator's interpretation was not only wrong, but plainly wrong.

Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1504-05 (7th Cir.1991). Finally, after reviewing the circuit split, and after reciting almost in toto Judge Mayer's LaPine I dissent, the Eighth Circuit strongly suggested that parties may not contract for expanded judicial review of an arbitration award, but ultimately resolved the case on other grounds. See UHC Mgmt. Co. v. Computer Scis. Corp., 148 F.3d 992 (8th Cir.1998).

These three circuits distinguished Volt's holding that private parties' con