### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 10

- 10172

CHESTER SHANE MCVAY , Plaintiff

- Appellant

v.
HALLIBURTON ENERGY SERVICES, INC. , Defendant

- Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:07

- CV

- 1101

Before DAVIS and CLEMENT , Circuit Judges, and ROSENTHAL, District Judge. * PER CURIAM * * : Chester Shane McVay appeals from the district court’s judgment confirm ing an arbitration award issued in favor of his former employer, Halliburton Energy Ser vices . The award enjoin ed McVay from using certain Halliburton documents or tangible things and aw ard ed damages

. The only issue remaining before us is whether the district court err ed because the injunction

* District Judge of the Southern District of Texas, sitting by designation.

* * Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 22, 2015 Lyle W. Cayce Cle rk Case: 10-10172 Document: 00513015487 Page: 1 Date Filed: 04/22/2015No. 10

- 10172 was not definite, making the award subject to vacatur under 9 U.S.C. § 10(a)(4) . We find that the injunction m et the requirements for confirm i ng the arbitration award , and we affirm.
I. BACKGROUND Chester McVay worked at Halliburton as an engineer from 2001 to
2005. During his tenure, he signed an Intellectual Property Agreement ( the “IP Agreement”) that made clear Halliburton’s rights in the confidential and proprietary infor mation McVay learned, had access to, or worked on during his employment

. Before he left Halliburton , McVay copied a gigabyte of data from his work computer and removed hundreds of physical files. During his exit inte rview, McVay told his almost

- former employer that he viewed himself as
the owner of a software pro gram he had worked on at Halli burton. McVay’s conduct led Halliburton to suspect that he had copied, taken, and kept valuable secret and proprietary infor ma tion. Halliburton invoked the arbitration clause in the IP Agreement against McVay. In the arbitration, Halliburton alleg ed that McVay had breach ed the Agreement and s ought damages and an injunction. The parties arbitrated under the Halliburton Dispute Resolu tion Rules before an arbitrator appointed by the American Arbitra tion Association. The arbitrator issued her award on March 21, 2007 , finding that McVay had breached the IP Agreem ent by removing and copying Halliburton’s confidential information , including data and engineering specifications about Halliburton’s packers and performance envelopes . The arbitrator found that this was technological information developed at a large cost to Halliburton. The arbitrator
also found that McVay was not credi ble about whether he removed and cop ied this material. The arbitrator awarded Halliburton $24,042.27 in damages for breach of contract, $150,000 in attorneys’ fees, $20,944.15 in expert witness costs, and injunctive relief.
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- 10172 The injunction required McVay to return all the documents and things he took from Halliburton concerning it s products or services , certify that he
had done so and had not given the documents or things to third parties, and refrain from “utilizing in any fashion any paper and electroni c copies of anydocuments and tangible things that concern [Halliburton] products or services.” McVay moved to vacate the award on a number of grounds, including that the injunction was not “definite, clear and precise

. ” H alliburton cross

moved to conf irm

. The district court referred the case to a magis trate judge, who recommend ed denying McVay’s motion to vacate and granting Halliburton’s motion to confirm. McVay objected to the magistrate judge ’s recommendation, arguing in relevant part that it fail ed to address whether the arbitrator’s injunction vio lated Rule 65 (d) of the Federal Rules of Civil Procedure and therefore should be vacated under 9 U.S.C. § 10(a)(4). The district court adopted the mag istrate judge’s recommendations and McVay appealed

. This appeal was stayed after McVay filed for Chapter 7 bankruptcy protection in August 2010. Oral argument was reset after McVay’s bankruptcy case was closed in Dec ember 2014

. The only issue that remains is McVay’s challenge to the injunction.
II. DISCUSSION A. The Standard of Review Judicial review of an arbitration award is “exceedingly deferential.” Petrofac, Inc. v. DynMcDermott Petroleum Ops. Co. , 687 F.3d 671, 674 (5th Cir. 2012) (quoting Apache Bohai Corp. LDC v. Texaco China BV , 480 F.3d 397, 401 (5th Cir. 2007)). Vacatur is permitted only on the narrow grounds described in the Federal Arbitration Act (“FAA”)

. See Citigroup Global Mkts., Inc. v. Bacon , 562 F.3d 349, 358 (5th Cir. 2009). We review the factual findings a distri ct
court makes in confirming an arbitration award for clear error ; we review the
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- 10172 district court’s c onclusions of law de novo

. See Tricon Energy Ltd. v. Vinmar Int’l, Ltd. , 718 F.3d 448, 452

– 53 (5th Cir. 2013).
B. Analysis McVay argues that the district court should have vacated the award under 9 U.S.C. § 10(a)(4) because the arbitrator imperfectly executed her powers by issuing an indefinite injunction. As a threshold matter, Halliburton argues that McVay waived this ground for challenging the award by basing it on the repudiated “manifest disregard” standard

. See Citigroup , 562 F.3d at 358 (explaining that “manifest disregard of the law” is not an independent ground upon which an arbitration award may be rejected) . McVay specifically cited 9 U.S.C. § 10(a)(4) in his motion to va cate and alleged i mperfect execution of

powers . His objections t o the magistrate judge’s recommendation included the failure “ to address McVay’s request to vacate a portion of the Arbitrator’s injunctio n under 9 U.S.C. § 10(a)( 4).” McVay did not waive this argument. A district court may vacate an arbitration award when “the arbitrator[] exceeded [her] powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submi tted was not made .” 9 U.S.C. § 10(a)(4). The Fifth Circuit has not specifically addressed the standard for
determin ing whether an arbitration award , particularly one granting an injunction , is definite. In Antwine v. Prudential Bache Securities , Inc. , 899 F.2d 410, 413 (5th Cir. 1990), th e court found that the arbitrators had not imperfectly executed their powers under § 10(a)(4) because “[t]he award and statement provided by the arbitrators . . . was clear and concise [and] lacked any hint of ambiguity,” but did not hol d that this was a standard for all arbitration awards or state how it a pplied to awards containing injunctions

.Other circuits have addressed the issue more directly. The Second Circuit has described an arbitral award that is “final and definite” as one that

“ resolve [s] all the issues submitted to arbitration . . . definitively enough so
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- 10172 that the rights and obligations of the two parties, with respect to the issues submitted, do not stand in need of further adjudication.” Rocket Jewelry Box,
Inc. v. Noble Gift Packaging, Inc. , 157 F.3d 174, 176 (2d Cir. 1998) (emphasis omitted). The Third Circuit has held that to be definite, an arbitration award must be “sufficiently specific as to be capable of implementation.” S ee United Mine Workers of Am. Dist. No. 5 v. Consol. Coal Co. , 666 F.2d 806, 80 9

– 10 (3d Cir. 1981)

. The Seventh Circuit has held t hat an arbitration award is definite if it “is sufficiently clear and specific to be enforced , ” IDS Life Ins. Co. v. Royal Alliance Assocs. , 266 F.3d 645, 650 ( 7th Cir. 2001) , and indefinite if it is “so badly drafted that the party against whom the award runs doesn’t know how to comply with it , ” Smart v. Int’l B h d . of Elec. Workers, Local 702 , 315 F.3d 721, 725 (7th Cir. 2002) (citing IDS Life Ins. , 266 F.3d at 650)

. McVay argues that the injunction in the arbitration award issued against him should be evaluated un der the same standard that applies to injunctions issued by courts. Rule 65(d) requires every o rder granting an injunction to “ (A) state the reaso ns why it issued; (B) state its terms specifically; and (C) describe in reasonable detail

— and not by referring to th e complaint or other docu ment

— the act or acts restrained or required.” F ED

. R. C IV

. P. 65(d)(1). Without conced ing that Rule 65(d) applies, Hallib u rton argues that the injunction meets its requirements. O ther circuits have found Rule 65 (d) relevant to deciding whethe r an injunction in an arbitration award is “final and definite.” S ee Diapulse Corp. of
Am. v. Carba, Ltd. , 626 F.2d 1108, 1110

– 11 (2d Cir. 1980) (applying Rule 65(d) because under 9 U.S.C. § 13, an arbitral award reduced to a judgment in confirmation proceedings has the same force and effect as an injunction issued by the court); IDS Life Ins. , 266 F.3d at 650

– 51 (interpreting the requirement thatthe arbitrator issue a definite award “to mean (much as in the case of injunctions, F ED

. R. C IV

. P. 65(d)) t hat the award is sufficiently clear and specific to
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- 10172 be enforced should it be confirmed by the district court and thus made judicially enforce able”) ; Comedy Club, Inc. v. Improv W. Associates , 553 F.3d 1277, 1287 (9th Cir. 2009) (holding that the arbitrator exceeded his authority by issuing an injunction br oader than Rule 65(d) allowed) . But case law also s hows that the Rule 65(d) requirements are not strictly ap plied to arbitration awards. For example, Rule 65(d)(1)(A) requires courts issuing in junctions to state the reasons for issuance , while arbitrators are not required to give reasons for their
awards. Compare United Steelworkers of Am. v. Enter. Wheel & Car Corp. , 363 U.S. 593, 598 (1960) (“Arbitrators have no obligation to the court to give their reasons for an award.”); Antwine , 899 F.2d at 413 (“It has long been settled that arbitrators are not req uired to disclose or explain the reasons underlying an award.”) with F ED

. R. C IV

. P. 65(d) (“Every order granting an injunction and every restraining order must . . . state the reasons why it issued.”). We need not decide whether all of the Rule 65(d) requ irements apply to arbitrat ion awards granting injunctive relief. This injunction is final and definite under Antwine , the standards described by other circuits , and Rule 65(d). The injunction stated as follows: a) McVay and those acting in concert with him are enjoined from utilizing in any fashion any paper and electronic copies of any documents and tangible things that concern [Halliburton] products or services ; b) McVay and those acting in concert with him are order ed to return within 10 days (to the extent not already returned) all paper and electronic copies of all documents and tangible things concerning [Halli burton] products and services, including but not limited to any such paper or electronic copies delivered by McVay to any third party; c) McVay shall, within 10 days of the date of this Award, certify by sworn statement th a t neither he noranyone with access to the “hytech7” email address possess or control any electronic copies of documents or things currently held by McVay’s counsel;
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- 10172 d) McVay shall, within 10 days of the date of this Award, certify by sworn statement that no electronic or other copies of any documents or things received atthe “hytech7” address from McVay that concern [Halliburton] products, servi ces or processes have been provided to any third party or that all such copies have been returned to [Halliburton]; and e) McVay shall, within 10 days of the date of thisAward, certify by sworn statement that he has not delivered to anyone outside of [Hallib urton], other than those with access to the “hytech7” address or JamesCastaneda, any paper or electronic copies of any version of any document or recordings relating to [Halliburton] products, services or processes.

ROA 48

– 49. McVay argues that the provision enjoining him from “utilizing in any fashion any paper and electronic copies of any documents and tangible things that concern [Halliburton’s] products or services” is indefinite because it is unlimited in time , does not define “utilization,” and is not restricted to paper or electronic copies of the documents or things he took from Halliburton when he resigned. McVay a r gu es that he can “only guess what kinds of documents” and “what kind of ‘utiliz [ ation] ’” he is enjoined from. He also argues th at the failure
to define “utilization” and to provide an expiration date v iolat ed the rule that an injunction prohibiting otherwise lawful conduct must be limited in both time and scope

. The rec ord shows that, read in context, “any paper and electronic c opies of any documents and tangible things that concern [Halliburton] products or services ” is limited to the copies of Hallibur ton’s information about its products or services that McVay took with him when he resigned from Halliburton and
retained in violation of the IP Agreement

. The arbitrator’s award di scusses McVay’s misconduct that necessitated the injunction , describing his “wholesale download of his offi ce computer” onto a thumb drive, his removal of “boxes of
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- 10172 [Halliburton] hard copies , ” and hi s “inconceivable” refusal to “ admit to removing confidential material or copying material on the thumb drive during his deposi tion or prior to the hearing.” ROA 38

. The arbitrator found that McVay’s
use or retention after January 4, 2006 of documents or things concerning Halliburton’s products or services that McVay took when he left Halliburton breached the IP Agreement.
In con text, the injunction covers the copies of electronic documents and physical files McVay took from, and retained after leaving , Halliburton , concerning its products or services , obtained in doing his job or within the knowledge he acquired as a Halliburto n employee . Read as a whole and in context, the injunction require d McVay to return the copies of the documents and things he to ok when he left, concerning Halliburton’s products and services, and prohibited him from using copies of these documents and things in the future. At oral argument, both parties agreed that this is what the provision is properly read to mean. Cf. Rorie v. Edwards , 48 F. App’x 102, 2002 WL
31016457 , at *5 (5th Cir. 2002) (apply ing Rule 65(d) and stating: “We are satisfied that the court used the word ‘document’ to identify the plans found to be trade secrets, and giving the injunction this interpre tation, it is not overbroad.”). The absence of a time limit or a definition of “utilize” do not make the injunction indefinite. The injunction in particular and the award as a whole provide d McVay fair notice of what he may , and must not, do , and are cle arly capable of be ing
i mplemented and enforced. T he district court did not err in entering judgment confirming the award

. AFFIRMED.

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