IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10219

Summary Calendar

CHRISTOPHER MICHAEL WANKEN,

Plaintiff-Appellant,

versus

JOHN DWIGHT WANKEN; 

RAYMOND JAMES FINANCIAL SERVICES, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

No. 3:10-CV-556

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

ChristopherWanken (“Wanken”) appeals the denial of his motion to vacate

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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an arbitration award and the grant of defendants’ motions to confirm the award.

Finding no error, we affirm.

I.

Wanken was terminated from his employment as a registered sales associate at Beacon Financial Advisors, a firm owned by his father, John Wanken,

and operated as an independent branch office of Raymond James Financial Services, Inc. (“Raymond James”). Wanken filed for arbitration with the Financial

Industry Regulatory Authority, claiming that he was a partner in Beacon Financial and accordingly deserved additional compensation as a result of his wrongful

termination. He also said that John Wanken and Raymond James had defamed

him by listing, on a publicly available document, “Job Performance” as the basis

for his termination. John Wanken counterclaimed, alleging that the arbitration

was filed to harass him. 

After extensive discovery and argument,the arbitration panel rejected the

majority of Wanken’s claims but granted him $1,200 in costs from Raymond

James and ordered that the basis for his termination be changed to “no-fault.” 

The panel also rejected all of John Wanken’s counterclaims and assigned the

costs to John Wanken and Raymond James.

Wanken sued under 9 U.S.C. § 10(a) to vacate and modify the arbitration

award, claiming that (1) the award was procured by fraud; (2) the arbitration

panel did not allow him to complete his discovery requests; (3) the panel failed

to enforce its discovery orders; (4) the panel refused to consider material evidence; (5) the panel was improperly biased; (6) the panel exceeded and improperly exercised its powers; and (7) John Wanken, Raymond James, and their

attorneys engaged in fraud and misconduct in the arbitration proceedings. 

John Wanken and Raymond James filed motions to dismiss, which the

magistrate judge recommended be treated as motions to confirm the arbitration

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award and be granted. Wanken filed objections to the recommendation and an

amended motion to vacate. The district court, after de novo review, accepted the

recommendation and confirmed the award. 

II.

We review the confirmation of an arbitration award de novo, using the

same standards as did the district court. See Wartsila Finland Oy v. Duke Capital, LLC, 518 F.3d 287, 291 (5th Cir. 2008) (citation omitted). The review of an

award is “exceedingly deferential.” Brabham v. A.G. Edwards & Sons, Inc., 376

F.3d 377, 380 (5th Cir. 2004). We may vacate an award 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). The burden of proof is on the party seeking to vacate the 1

award, and any doubts or uncertainties must be resolved in favor of upholding

it. Brabham, 376 F.3d at 385 n.9 (citations omitted).

Wanken argues that we should instead review the district court’s order

under the motion-to-dismiss standard. That is incorrect; the court plainly

treated the relevant motions as motions to confirm the arbitration award, exemSee also Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009) 1

(stating that the grounds for vacating an arbitration award are restricted to those set forth in

the Federal Arbitration Act, specifically in 9 U.S.C. § 10).

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plified by the fact that the court considered all the evidence in the record before

confirming the award. 

III.

Wanken’s argument that the arbitration award is not supported by the evidence is irrelevant. We have no authority to review the merits of the award; our

inquiry is limited to determining whether any of the statutory conditions for

vacating it have been met. On that score, Wanken has not provided sufficient 2

evidence to satisfy any of those conditions.

A.

Wanken contends that the award was procured by fraud. Specifically, he

argues that John Wanken gave fraudulent testimony during the arbitration

proceedings and concealed documents to deny him the opportunity to present his

claims fully to the panel. Wanken also contends that John Wanken, Raymond

James, and their attorneys generally engaged in fraud and misconduct during

the proceedings. None of these arguments is supported by the record.

Wanken claims that John Wanken gave fraudulent testimony by taking

a position in the arbitration proceeding that were inconsistent with those taken

in proceedings before the Texas Workforce Commission—the inconsistent position being whether Wanken was an employee or independent contractor at Beacon Financial. Even assuming, however, that John Wanken did take inconsistent positions—the evidence of which is nothing more than Wanken’s assertions

—this particular issue had no bearing on the arbitration proceedings. During

arbitration, the issue was whether Wanken was a partner at Beacon Financial.

John Wanken said he was not, and the arbitration panel agreed. Whether WanSee Kergosien v. Ocean Energy, Inc., 390 F.3d 346, 357 (5th Cir. 2004), overruled on

2

other grounds by Citigroup Global Markets Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009).

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ken was an employee or independent contractor is not relevant to whether he

was a partner—and John Wanken has consistently maintained that Wanken

was not a partner at Beacon Financial. Moreover, we cannot vacate an award

merely because the arbitrators chose to credit one witness’s testimony over

another’s.

Wanken provides no support in the record, beyond his conclusional allegations, that John Wanken has concealed documents. He also provides no credible

evidence supporting his vague allegation that John Wanken, Raymond James,

and their attorneys engaged in fraud and misconduct in the arbitration. Accordingly, Wanken’s argument that the award should be vacated for fraud fails.

B.

Wanken maintains that the award should be vacated because the panel

did not allow him to complete his discovery requests, failed to enforce its discovery orders, and did not consider material evidence. The record does not support any of those contentions.

The defendants produced over 6000 pages of documents in response to over

250 discovery requests. The panel, after conducting extensive hearings to

resolve discovery issues, ordered the production of additional documents. The

panel did not, however, order the production of all the documents Wanken

requested, on the grounds that the requests were cumbersome and that some of

the requests were irrelevant or not critical to the claims at issue. The panel’s

decision on that score was eminently reasonable and does not amount to “misbehavior” or refusal to “hear evidence pertinent and material to the controversy.”

Nor is it accurate to characterize the panel’s decision not to sanction John

Wanken or Raymond James as a failure to enforce its discovery orders—the decision to sanction is discretionary, and Wanken has not shown any evidence to

suggest that the panel’s exercise of that discretion was in error. Similarly, there

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is no evidence in the record to support Wanken’s claim that the panel failed to

consider material evidence in rendering its decision.

C.

Wanken contends that the arbitration panel was improperly biased

against him. He does not, however, submit any evidence—beyond the fact that

the panel did not grant him the relief he sought—supporting that allegation, nor

is there any in the record. 

D.

Wanken claims the panel exceeded and improperly exercised its powers.

Specifically, he asserts that it (1) failed to enforce its discovery orders; (2) issued

contradictory orders regarding witnesses; (3) refused to reconsider a discovery

ruling; (4) did not inform him he was entitled to a continuance; (5) issued a “gag”

order that prevented him from communicating with the media; and (6) made an

“ambiguous and contradictory” award. 

We have essentially addressed arguments (1), (2), (3), and (6), above. As

to the others, Wanken offers no explanation as to how those occurrences violate

the Federal Arbitration Act. Even assuming, arguendo, that the arguments

have factual merit, they do not amount to an excessive or improper exercise of

the panel’s powers.

IV.

Wankenavers thatthe district court failed to consider his amended motion

to vacate. That claim has no merit. The court explicitly stated that, “even considering plaintiff's amended pleadings, plaintiff has failed to establish any

grounds for vacating or modifying the arbitration award.” (Emphasis added.)

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V.

Wanken maintains that he was entitled to notice before the magistrate

judge recommended converting the motions to dismiss to motions to confirm the

arbitration award. Even assuming, arguendo, that notice was required and not

given before the magistrate judge made the recommendation, Wanken was given

a chance to object—an opportunity he used—before the district court conducted

a de novo review of the motions. Accordingly, Wanken was provided more than

sufficient notice that the motions to dismiss could be treated as motions to confirm.

AFFIRMED.

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