Case 2:21-cv-00811-TSZ Document 317 Filed 08/26/24 Page 1 of 5

NOT FOR PUBLICATIONUNITED STATES COURT OF APPEALSFILED
AUG 26 2024
MOLLY C. DWYER, CLERKFOR THE NINTH CIRCUITBUNGIE, INC., a Delaware corporation,
Plaintiff-Appellee,

No.

U.S. COURT OF APPEALS

23-35468

D.C. No. 2:21-cv-00811-TSZ

v.
MEMORANDUM*
AIMJUNKIES.COM, a business of unknownclassification; PHOENIX DIGITAL GROUP
LLC, an Arizona limited liability company;
JEFFREY CONWAY, an individual;
DAVID SCHAEFER, an individual;
JORDAN GREEN, an individual; JAMES
MAY, an individual,Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted August 20, 2024**
Portland, Oregon
Before: NGUYEN and JOHNSTONE, Circuit Judges, and EZRA,*** District*

This disposition is not appropriate for publication and is not precedentexcept as provided by Ninth Circuit Rule 36-3.
**

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***The Honorable David A. Ezra, United States District Judge for theDistrict of Hawaii, sitting by designation.

Case 2:21-cv-00811-TSZ Document 317 Filed 08/26/24 Page 2 of 5Judge.
Bungie, Inc. (“Bungie”) filed suit against Appellants Aimjunkies.com,
Phoenix Digital Group LLC, Jeffrey Conway, David Schaefer, Jordan Green, andJames May (collectively, “AimJunkies”). AimJunkies moved to refer six of
Bungie’s nine causes of action to binding arbitration in accordance with Bungie’s
Limited Software License Agreement. Bungie’s other claims remain pending
before the District Court.
The Honorable Ronald E. Cox was the JAMS-appointed arbitrator. Judge
Cox (the “Arbitrator”) issued a Final Arbitration Award in the amount of$4,396,222 against AimJunkies. The District Court confirmed the arbitration
award.
We have jurisdiction pursuant to 9 U.S.C. § 16(a), and this Court reviews
questions of law de novo and factual findings for clear error. First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 948 (1995).
AimJunkies contend that the Arbitrator violated JAMS Rule 22(e), which
provides that an “[a]rbitrator shall receive and consider relevant deposition
testimony recorded by transcript or videotape.” AimJunkies argue that theArbitrator denied them the ability to use prior deposition testimony for
impeachment purposes, and that the Arbitrator disallowed testimony from a priordeposition. They contend that the district court should have vacated the arbitration2

Case 2:21-cv-00811-TSZ Document 317 Filed 08/26/24 Page 3 of 5award pursuant to 9 U.S.C. § 10(a)(3), which provides for vacating awards “wherethe arbitrators were guilty of misconduct . . . in refusing to hear evidence pertinentand material to the controversy; or of any other misbehavior by which the rights ofany party have been prejudiced.” Alternatively, AimJunkies contend that thedistrict court should have vacated the award under § 10(a)(4), which provides forvacating awards “where the arbitrators exceeded their powers.”
An arbitration award can be vacated under 9 U.S.C. § 10(a)(3) only if anArbitrator’s error was “in bad faith or so gross as to amount to affirmative
misconduct,” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40(1987), and thus deprived the parties of a “fundamentally fair” hearing, Move, Inc.
v. Citigroup Glob. Mkts., Inc., 840 F.3d 1152, 1158 (9th Cir. 2016). We do notreview the correctness of the arbitrator’s procedural rulings; fundamental fairness
requires only that the arbitrator “give each of the parties to the dispute an adequate
opportunity to present its evidence and arguments.” Sunshine Mining Co. v.
United Steelworkers of Am., 823 F.2d 1289, 1295 (9th Cir. 1987).
Vacatur under § 10(a)(4) “is a high standard.” HayDay Farms, Inc. v.
FeeDx Holdings, Inc., 55 F.4th 1232, 1240 (9th Cir. 2022) (quoting Lagstein v.
Certain Underwriters at Lloyd’s, London, 607 F.3d 634, 641 (9th Cir. 2010)). The
arbitral award must “exhibit[] a manifest disregard of law” or be “completelyirrational.” Id.

3

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Bungie’s case relied in part on the testimony of Dr. Edward Kaiser, Bungie’sprincipal witness. Bungie called Dr. Kaiser during its case in chief before theArbitrator. On cross-examination, AimJunkies’ counsel asked Dr. Kaiser if herecalled being deposed in both his personal capacity and as Bungie’s corporate
representative. AimJunkies’ counsel then asked, “Do you recall when I asked you
to identify all the technological measures that Bungie contends were compromised
by [Appellant] Phoenix Digital?” Bungie’s counsel objected “to the form of [the]question” because AimJunkies did not include any Digital Millennium CopyrightAct (“DMCA”) topics in its Federal Rule of Civil Procedure 30(b)(6) deposition
notice to Bungie. Therefore, Bungie’s counsel argued, Dr. Kaiser’s “[Rule]30(b)(6) testimony explicitly did not include anything on the [DMCA] violation”
because he was not required to be prepared on those topics. The Arbitrator
sustained the objection to form and invited AimJunkies’ counsel to “[a]sk anotherquestion.” AimJunkies argue that this action amounted to the Arbitrator violating
JAMS Rule 22(e) by excluding and refusing to consider material evidence.
The District Court did not err in confirming the arbitration award. TheArbitrator did not disallow any relevant testimony in instructing AimJunkies’counsel to ask another question during the hearing. It is common practice to ask
counsel to ask another question or rephrase a question in response to an objection
to form. The Arbitrator did not entirely dismiss AimJunkies’ attempt or ability to4

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impeach Dr. Kaiser. For example, AimJunkies’ counsel could have tried torephrase its question, question Dr. Kaiser about his transcripts, or read Dr. Kaiser’stranscripts into the record to impeach Dr. Kaiser. AimJunkies’ counsel did not
attempt to do so. Instead, counsel abandoned the line of questioning entirely. Thisin no way amounts to an error under § 10(a)(3), especially not an error that was “inbad faith or so gross as to amount to affirmative misconduct,” United
Paperworkers, 484 U.S. at 40, and thus deprived the parties of a “fundamentallyfair” hearing, Move, Inc., 840 F.3d at 1158. Nor did the Arbitrator exhibit “amanifest disregard of law” or make a “completely irrational” award so as tocommit an error under § 10(a)(4). HayDay Farms, 55 F.4th at 1240.1
AFFIRMED.

1

The motion to stay enforcement of the arbitration award (Dkt. No. 26) is denied
as moot.
5