it please the court my name is susan williams and i represent appellant appellant move ink keep your voice of yes and i would like to reserve three minutes of my time for rebuttal the overriding goal of congress in an acting the federal arbitration act was to ensure judicial enforcement of private arbitration agreements according to their terms as with any other contract the parties intentions control move did not intend or consent to have its one hundred thirty one million dollar securities claim arbitrator by a panel chaired by a fraud who did not consent to a panel chaired by an individual who fabricated credentials designed to inch and hands his chances of being chosen as he was then recognize that mr frank was not qualified to arbitrate this dispute when it removed him from its roster once his deception came to light let me just ask the question nothing from the record as i read by his misbehavior moves rights were prejudiced in that move was entitled to a properly conducted arbitration by a properly constituted panel it did not receive that and the question is not with the outcome have been different the question is were moves rights to a hearing conducted by a panel of three qualified arbitrators prejudiced when it received an arbitration chaired by an individual who was not that how do you ever know when somebody is you know it's a fraud really judge what difference it would make but you're actually not saying that no we're going to something more fundamental which is that without regard to the outcome and without regard to what did or did not happen within the four corners of the arbitration two and two we were entitled fundamentally to a fair hearing by three qualified arbitrator with the best cases supports your statement that you just me on twenty or twenty five years no on the fact that you're just because you didn't get what you bargained for in terms of the makeup of the arbitration panel that you're entitled provides as the remedy for arbitron misconduct they can tear so we are seeking the only remedy we are authorized to seek by law there is no question that your position though it is a guess if you just he later learned about it that you're entitle to a new hearing we're entitled to a new hearing i would submit because we are entitled to three qualified honest arbitrators who are required under thin wrist rules to provide that as a disclosure of their background under oath to verify the accuracy of that information we were provided that information as part of the finra selection process we have the right to strike for arbitrator's and as the declarations submitted in support of the underlying motion make clear we would have struck anybody who who was being proposed for a public chairperson who was not a lawyer you have some duty to do due diligence about these people no we did not and i think the ninth circuit decision cited by the district court in the new regency productions case is on point here we were entitled to rely on the accuracy of the information we received from finra had there been anything in that information that could have given rise to a suspicion on our part that it was inaccurate well perhaps then we would have to look further but there was nothing in those disclosures that raised a red flag and as the district court pointed out even had we decided to check with sound was your law school or the california bar they would have told us that there was a james h frank who graduated from southwestern in one thousand nine hundred ninety three and human blakeman according to some article was the attorney who did find it four years later do it apparently in his arbitration unlike ours mr frank said something that gave rise to a concern that he couldn't possibly be a lawyer to say something like that and i don't know what it was because all i have are the press reports and this caused him to call the real mr frank in santa barbara the southwestern graduate and that was how he began to unravel the deception i believe it is part of the record it's in the excerpts of records they sent us a statement that mr frank had reported experience litigating cases involving injunctive relief that he was a graduate of one thousand nine hundred seventy three graduate southwestern law school that he was admitted to the bars of california new york and florida they also said he had an m b a which we believe is not true but we did not get the level of verification of that previous in his oath of arbitrator pardon they send you the no that's available online as part of the rules and we're so you can go online you can look at it that he signed the oath of arbitrator he submitted that i do not know i know you can see that finra arbitrators are required to sign that oath when they make their disclosures and of course at the beginning of the arbitration the first thing mr frank said was i'm a retired or semi retired lawyer and i've reviewed my disclosure statement and i have nothing to add i've just been hard to believe this much money at stake wouldn't do some investigation you wouldn't tell me now but he had done thirty some arbitration so you can make the argument argument that all right that doesn't make him any more qualified because all of those were fraudulent  as well because he never had a right to do them misrepresenting who he was but were those arbitrations some was there some record of them i mean it just seems like with that much at stake somebody would do some investigation before they said oh yeah i'll pick this person who i think we were entitled to rely on the integrity of finra as an organization on the integrity of finra zone internal processes and on the materials that they provided us and those materials were very detailed and as this court pointed out in the new regency case the level of detail in the disclosure itself could lead someone to believe that it must be accurate there was nothing in there unlike say the goldman sachs case in the third district that would raise a red flag and create a duty to go beyond it so do you know now that all this is come out how he's ruled i mean did he always rule in favor of  citi group kind of defended i have looked at all of his awards and they are almost entirely against the claimant and in favor of the member of finra the other thing that's worth pointing out here is this was as far as we can tell far and away the largest matter that was ever before him and one question that the district court had was well you know you didn't provide any evidence that he actually was biased because of the fact that he was a fraud you didn't you i would question we need to make that link because once again the integrity of the process was so compromised from the inception that nothing that happened after that should really matter in terms of arbitron misconduct but even if one goes there at the time th arbitration was conducted in october of two thousand and nine the financial meltdown had been going on for about a year there had already then a well publicized consent agreement between the f c c and citigroup global in which citigroup agreed to repurchase seven billion dollars worth of auction rate securities from individuals charities and small businesses a settlement not available to move an award of one hundred thirty one million dollars would have generated tremendous public interest and publicity and press and we submit that mr frank based on what we know about him now had every reason to want not to want publicity and not to be in the spotlight your time is up and i'll give you a minute for rebutt please the court fred rally jr for a poly citi group there's no dispute that mr frank made misrepresentations and is this the district court noted he made fundamental misrepresentation made misrepresentations in the district court noted that that was inexcusable and regrettable but the problem goes to a question that judge nelson asked which is what is the result we deal here with an arbitration award not a court judgment and under the federal arbitration act this court has repeatedly made clear that the grounds for vacate or narrow and so my friend miss williams has to point to a statutory ground that warrants vacate tour and the district court correctly noted that move did not make that showing no it was ever been a case like this before reversed on another ground but did go on to a note that it was far from clear on the record before that there would even be in error harmless error or harmful error on the to the under the federal rules that the movement was relying on and here if we take addressed this the district court looked at the finra rules which i would note were not incorporated into the arbitration agreement here everybody agreed to be bound by the rules your honor in the submission statement the parties both agreed but that's not  disclosure rules that that move relies on are really concerned with relationships with past work and with financial interests and other interests that would give an arbitrator some kind of partiality  for one party or another in the district court noted that there isn't even a contention just bucko not even a contention here that any of the arbitrators let alone the two who go unchallenged whose integrity are unchallenged and whose vote would be sufficient even under the finra rules which are not incorporated to support the award here says the district court properly concluded that on the record before it in the absence of any argument that there was any problem with the resulting award that there was any problem with the conduct of the they entitled what would the both parties entitle to an arbitration proceeding before three arbitrators who qualified under finra has rules your honor when you say the word intitled it depends on what you three arbitrators who are qualified under fingers rule then wrist rules provide for that and the parties agree to that your honor did they get that they did not get that they did not get that they did not get that but again how do they have the authority to  your honor so the court is make up first i'd like to answer the court's earlier question and just to respond little bit more fully because that's the submission statement that incorporates finra phin wrist rules and finance rules do provide for a three arbitrator panel but again the rules that go to disclosure that go to the adar arbitrators fitness to serve focused on conflict and bias in the district court properly noted there's not even a contention of well because if you look at finra as rules finance rules are really focused on whether the determination was impartial and objective in the district court properly concluded that on the record before it where there's no argument about that the substance is the chair had the authority to make evidentiary rulings it's important to note that the one evidentiary ruling that move addresses in passing a motion and eliminate was ruled upon on behalf of all three arbitrators and indeed the panel here actually ruled in favor of move on a motion to compel so the record really does suggest that is the district court concluded it was an objective it impartial determination even if it wasn't perfect now the judge piousness question about score the district court noted that what move this arguing about here in alleging it's misconduct on the part of a single arbitrator uncovered years after the fact that's different from what section ten in force driving at that ground is driving at situations where you have an arbitration award or you have procedures that the arbitration panel imposes that are so egregiously different from what the arbitration agreement provides that they could tour is warranted it's the kind of there that would be instantly recognizable and yet kno look the district court noted that this was regrettable and inexcusable but the question for purposes of twenty four is whether the award or the procedures imposed by the arbitration panel collectively departs so radically from what the parties provided for in their agreement that there ought to be fake it or it is important to note that that move did not seek to vacate this award in the three years following the williams my friend miss williams is arguments to the panel here today confirm that this is really a misconduct theory it doesn't really fit under ten a four if it's more comfortably as a district noted district court noted in ten a three  your honor ten a for focuses on the arbitrator's agreement the arbitrary i'm sorry the arbitration agreement how did the party structure the arbitration what is the terms of the arbitration agreement provided agreement itself the actual terms of the arbitration agreement what their true seeking instead is to rely on finra wills that are part of the arbitration agreement there are some of them for anything no they are your honor they're just not of the part of the agreement to arbitrate it's not like even if you treat the finner arbitration rules as part of the agreement to arbitrate there still isn't an agreed just departure from the parties arbitration agreement because those rules focus on conflict and bias because those rules provide that it particular rule but i would note that the ground for removing an arbitrator rule twelve four zero seven also focuses on conflict and bias so even if you treat the finra rules as part of the agreement to arbitrate the district court properly conclude that  there's just isn't on this record on the arguments that were presented to it and on the facts that were presented to it grounds for vacay to run or ten a for with respect to judge nelson's question if i may quickly on on on equitable tolling if you look at the text of section twelve section twelve and look at that text in light of this court's precedent in la farge section twelve and the three month period to bring a vacate tour motion is fundamentally inconsistent with equitable tone the language is strict as this court noted in le farge the other circuits that have interpreted that language have have read it to be inconsistent with the application of equitable tolling  an effort to get around that three month period under rule sixty for newly discovered evidence that's very similar to equitable tolling and the court rejected it so we submit that this motion was untimely from the beginning and this gets to judge but close question about whether this vacate gore motion could have been brought ten years from now fifteen years from now judge posner correctly noted that that's the fundamental problem with recognizing a judge made exception to that three month period applying a rule based exception to that three month influence of the chair of the board of the other two or between yours sufficiently to show prejudice your honor there's no effort here to link the misrepresentations by mr frank the fact that he was not a lawyer to anything that went wrong in the arbitration there's no criticism of the award there's no criticism of any rationale that would support it there's no challenge he would have an end cherry ruling by the panel there's no challenge to the conduct of an arbitration so there are normal course through how in the normal arbitration proceedings it's rare day that arbitration word gets a side judge pious a rare day that my business is you know i mean they have no choice in this particular instance but you know  isn't all the time that people think it is in the end but judge bias i think the response to judge nelson's point is just that there isn't even a theory that's been put on the table as to what went wrong and what might have made a difference here that's what the district court we submit was reacting to and this is not like a section ten a two situation if the contention is that there was evident partiality on the part of a judge or corruption on the part of an arbitrator and that means bias or some kind of conflict of interest just like the finn rules i would note it's a different situation the statute provides for corruption or evident partiality in the part of the arbitrator or any of them so any single arbitrator  who shows evident partiality will have the yes just because you want to that's not a ground that move has has has invoked here and if you look at the text of the statute it's really focused on something else it's focused on two points first as to section ten a for the party we did have a contractual right to it here is within was rules and policies both as a third party beneficiary of citigroup's contract with arbitrators can exceed their powers under section ten the when they fail to meet their obligations as specified in a given contract but more but more importantly on the question of arbitrary misconduct under twenty three i'd just like to briefly remind of this court statement in the schmitz vs zaveri case cited in the briefs the policies of nine u s c section ten also support the notion that the standard for non disclosure cases should differ from that used in actual bias cases in a non disclosure the integrity of the process by which arbitrators are chosen is an issue whether they are betrayers decision itself is faulty is not necessarily relevant and this is not only not a non disclosure case this is an affirmative misrepresentation case an extremely odd fact pattern in an attempt to ground it in cases relating to actual bias or precede bias makes it more difficult to address book will have a question yes i'm sorry your opponent has said over and over i think you need to address despite all problems that we discuss here what makes you think you would prevail  rulings we have any reason to think that there would be any difference your honor we do we think that the result might well be different although of course we cannot know we cannot guarantee it had we been able arbitrate this matter before a panel chaired by an experienced attorney it involved complex legal issues involving the obligations of a broker to its clients it involved transactions which as we all know there were a lot of things going on in the late two thousand that people don't understand even now that you know i i've read the big short and i don't need to understand any of it a certain level of education and rigor was what was required here it was not received and in fact we had someone whose real goal was we believe to stay under the radar and to avoid scrutiny and so for those two reasons we believe that there was at least a reasonable probability