## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

P & P INDUSTRIES, INC., an Oklahoma corporation,

Plaintiff - Appellant,

v. No. 98-6358 SUTTER CORPORATION, a California corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CV-95-1273-T)

Gary L. Levine (Stephen G. Solomon with him on the briefs), Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, Oklahoma, for Appellant. Edward J. McIntyre, Solomon, Ward, Seidenwurm & Smi th, LLP, San Diego, California, for Appellee.

Before ANDERSON , BARRETT , and HENRY , Circuit Judges.

ANDERSON , Circuit Judge.-2-

Appellant P & P Industries, Inc. (P & P) appeals fr om an order and judgment of the district court confirming an arbitr ation award in favor of Appellee Sutter Corporation (Sutter). This case pr esents three issues, two of which concern the district court’s power to confirmthe award, and one of which concerns the merits of the district court’s confirm ation of the award. First, we must determine whether any federal district court could have jurisdiction to confirm the arbitration award in this case. Sectio n 9 of the Federal Arbitration Act (FAA), 9 U.S.C. § 9, authorizes confirmation on ly where the parties have agreed that a “judgment of the court” would be ente red upon any arbitration award. Second, if we decide that the parties agree d to judicial confirmation of their arbitration award, we must then determine whe ther the United States District Court for the Western District of Oklahoma was a pr oper forum for confirmation of the arbitration award in this case. Finally, if we decide that the district court had jurisdiction and was the proper forum, we must decide whether the district court properly confirmed the award. For the reason s discussed below, we hold as follows: (1) the parties agreed to judicial confir mation of their arbitration award; (2) the Western District of Oklahoma was a proper f orum for confirmation; and (3) the district court properly confirmed the award

.-3- BACKGROUND Sutter is a California corporation specializing in the manufacture of postoperative rehabilitation devices. Prior to March 1 993, Paul Patredis was Sutter’s sole sales representative in Oklahoma and Arkansas. In early 1993, Patredis and James Patton formed P & P Industries, Inc., which, on March 1, 1993, signed an exclusive Agency Agreement (“the Agreement”) with S utter. The Agreement granted P & P the right to exclusively represent Sutter products in parts of Oklahoma and Arkansas (and, after December 1994, inparts of Texas) for a fiveyear period, with an option to renew the Agreement for two additional five-year periods. Soon after signing the Agreement, P & P h ired several staff members. The Agreement contained an arbitration clause which stated that “[a]ny controversy, claim, or breach arising out of or rel ating to this Agreement which the parties are unable to resolve to their mutual s atisfaction shall be resolved by arbitration before the American Arbitration Association, in the office of the Association nearest the principal place of business of [P & P].” I App. at 18. Sometime during the summer of 1995, Sutter became aware that P & P was allegedly “engaged in a kickback scheme with a phys ician, engaged in embezzlement, [and had] diverted Sutter payments to employees and [had] misappropriated Sutter revenue.” Appellee’s Br. at5. On August 10, 1995, Sutter filed an arbitration demand with the America n Arbitration Association-4-

(AAA) in Dallas, Texas, the AAA office nearest to P & P’s principal place of business in Oklahoma. Sutter also unilaterally terminated the Agreement, effective August 14. Between August 11 and August 14, Sutter allegedly contacted all of P & P’s employees and urged them t o resign from P & P and to sign on with Sutter, and most of them did so. P & P was notified of Sutter’s actions on August 14 . Three days later, P & P filed a complaint in federal district court i n the Western District of Oklahoma, seeking compensation for Sutter’s unilate ral breach of the Agreement, as well as for various alleged tortious actions, su ch as tortious interference with P & P’s contract rights. P & P also sought a declaratory judgment interpreting the arbitration clause of the Agreement. Soon after P & P’s complaint was filed, Sutter moved the court to stay the proceedings pend ing arbitration. In response, P & P conceded that the breach of contract claims i n its complaint were arbitrable. However, P & P argued that the balance of its claims were not arbitrable under the Agreement, and that in any cas e any arbitration award made pursuant to the Agreement’s arbitration clause was not subject to confirmation by a federal district court. On October 5, 1995, before the federal district cou rt had ruled on Sutter’s motion to stay, P & P notified the AAA that “[t]o avoid a default” it intended to participate in the arbitration, but that it “[did] not intend to waive any of [its]1 AAA Rule 47(c) states that “[p]arties to these rule s shall be deemed to

have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof. ” See Sutter Corp. v. P & P Indus., Inc. , 125 F.3d 914, 916 n.3 (5th Cir. 1997); Appellant’ s Br. at 23. -5- judicial rights by participation,” and it “specific ally object[ed] to ‘AAA’ Rule 47(c).” 1 I App. at 211. The next day, it filed a counterc laim with the AAA in Dallas, which, after amendment, sought $16 million in damages. On November 6, 1995, the district court granted Sutter’s motion to stay proceedings, ruling that all of P & P’s claims were arbitrable under the Agreement. The district court did not discuss whether any eventual arbitration award would be subject to confirmation by a federal district court. On November 8, 1995, P & P forwarded a copy of the district cou rt’s order to the AAA, and enclosed a cover letter in which it again professed to reserve its judicial rights, and again objected to the application of AAA Rule 4 7(c). The dispute, in its entirety, was arbitrated in Dal las in January 1996. On March 22, 1996, the arbitrator issued an award, fin ding in favor of Sutter and ordering P & P to pay Sutter $112,562 in damages. Furthermore, the arbitrator specifically found that Sutter had the right to ter minate the Agreement as it did, and that P & P’s tort-based claims were without mer it. On April 4, 1996, Sutter notified the Oklahoma district court that the arbitration had been completed. On that same day, P & P filed a motion asking-6-

the Oklahoma district court to vacate the award on the ground that the arbitrator had exceeded his authority. About a week later, Sutter filed a motion for confi rmation of the award in federal district court in the Northern District of Texas. Sutter filed this motion in Texas because 9 U.S.C. §§ 9-10 can arguably be inte rpreted to require that arbitration awards be confirmed and/or vacated only in the district where the award was handed down. In late April, Sutter responded to P & P’s motion t o vacate the arbitration award, filed in the Oklahoma district court, on its merits, but also pointed out to the Oklahoma district court that there was some dou bt about whether it had the power to vacate the award. Sutter also moved for c onfirmation of the award, as it had in the Texas federal court. In May, P & P appeared in federal court in Texas, a nd asked that court to dismiss the case and transfer it back to Oklahoma, or, in the alternative, to stay proceedings until the Oklahoma federal court had ru led on P & P’s Oklahoma motion to vacate the award. In July, P & P filed amotion to vacate the arbitration award, as it had in the Oklahoma federal court. Th us, both the Texas and Oklahoma federal courts had virtually identical mot ions before them—one from P & P to vacate the award, and one from Sutter to c onfirm it.-7-

The Texas court ruled first on the motions. On Aug ust 14, 1996, it denied P & P’s motions to dismiss, transfer, or stay the T exas proceedings, as well as P & P’s motion to vacate the award, and granted Sutter’s motion to confirm the award. The Texas district court ruled that 9 U.S.C . §§ 9-10 mandated that the court in the district where the award was handed down was the only federal district court that could confirm or vacate an arbi tration award. When the Oklahoma district court heard of the Texas court’s disposal of the issues, it stayed its proceedings on the similar motions until the Te xas court’s rulings could be appealed to the United States Court of Appeals for the Fifth Circuit. On October 27, 1997, the Fifth Circuit ruled that t he Texas district court had misinterpreted the FAA, and that the court in t he district in which an arbitration award was handed down was not the only federal district court that could confirm or vacate that award. Sutter Corp. v. P & P Indus., Inc. , 125 F.3d 914, 919 (5th Cir. 1997). Applying the “first to f ile rule,” it remanded the case back to the Texas district court with instructions to transfer the case to the Oklahoma district court for a decision as to whethe r the Texas proceedings should be consolidated with the Oklahoma proceedings. Id. at 920. The very next day, P & P filed a motion in the Okla homa district court, requesting that it act on the motions it had stayed pending the Fifth Circuit appeal. A few months later, on August 6, 1998, the Oklahoma district court-8-

issued an order granting Sutter’s motion to confirmthe award. The district court also denied P & P’s motion to vacate the award, rea ffirming its earlier decision that all of P & P’s claims, not just the breach of contract claims, were arbitrable, and ruling that the arbitrator had therefore not ex ceeded his authority by ruling on the tort-based claims. The district court held that it had jurisdiction to confirm the award, because the parties’ arbitration clause contemplated judicial confirmation of awards, and because the FAA allowedany federal district court, not just the one in the district where the award wa s rendered, to confirm an arbitration award. On September 2, 1998, the distr ict court entered judgment in favor of Sutter. P & P now appeals from this order and judgment of the district court.

DISCUSSION At the outset, we note the “liberal federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24 (1983). In keeping with this liberal policy toward arbitration , courts are instructed to resolve “any doubts concerning the scope of arbitrable issu es . . . in favor of arbitration.” Id. at 24-25. In addition, this liberal policy “cover s more than simply the substantive scope of the arbitration clause,” and “ encompasses an expectation that [arbitration] procedures will be binding.” McKee v. Home Buyers Warranty-9-

Corp. II , 45 F.3d 981, 985 (5th Cir. 1995); see also Rainwater v. National Home
Ins. Co. , 944 F.2d 190, 192 (4th Cir. 1991) (stating that “ it is presumed that . . . arbitration was intended to be the exclusive means of resolving disputes arising under the contract” (citation omitted)).

I. Jurisdictional Issues Our first task is to determine whether the districtcourt had jurisdiction to confirm the arbitration award. In arbitration conf irmation cases, such as this one, the jurisdictional inquiry is twofold. First, because the FAA “does not create any independent federal-question jurisdiction,” “there must be diversity of citizenship or some other independent basis for federal jurisdi ction” before a federal court can act under the FAA. Moses H. Cone , 460 U.S. at 25 n.32; see also Oklahoma City Assocs. v. Wal-Mart Stores, Inc. , 923 F.2d 791, 793 (10th Cir. 1991). Second, § 9 of the FAA, which authorizes confirmati on of arbitration awards under certain circumstances, “creates its own level of subject matter jurisdiction for confirmation under the FAA.” Oklahoma City Assocs. , 923 F.2d at 793. In this case, the parties agree that the district c ourt had jurisdiction over this case, pursuant to 28 U.S.C. § 1332, because th e parties are citizens of different states, and the amount in controversy exc eeds $75,000. We are satisfied that the district court had diversity jurisdiction over this case. See State Farm-10-

Mut. Auto. Ins. Co. v. Narvaez , 149 F.3d 1269, 1270-71 (10th Cir. 1998). The second part of our jurisdictional inquiry, however, is more complex. We must determine whether any federal district court was au thorized by the FAA to confirm the arbitration award in this case, and, if so, whether the United States District Court for the Western District of Oklahomawas a proper forum for confirmation, or whether the only proper forum for confirmation here, because the award was handed down in Dallas, was the United States District Court for the Northern District of Texas.

A. Did the Parties Contemplate Judicial Confirmation of Arbitration Awards? Section 9 of the FAA provides, in relevant part, as follows: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuantto the arbitration , . . . then at any time within one year after the award is made any party to the arbitration may apply to [a] court . . . for an order confirming the award, and thereupon the courtmust 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). P & P argues that the parties did not agree, “in their agreement,” that “a judgment of the court sha ll be entered upon” arbitration awards made pursuant to their arbitration clause. We have previously held that a district court has no power to confirm an arbitrati on award under § 9 of the FAA unless the parties have agreed, explicitly or impli citly, that any eventual-11-

arbitration award shall be subject to judicial confirmation. See Oklahoma City
Assocs. , 923 F.2d at 794-95. In addition to explicit language evidencing a conse nt to judgment, courts have recognized two other methods by which parties can manifest consent to judicial confirmation of arbitration awards. If th e parties to an arbitration clause agree that their arbitration shall be final and bin ding, some courts have held that the parties have consented to judicial confirmation of awards, because judicial involvement is the only way to make arbitration awards final and binding. See Booth v. Hume Pub. Co. , 902 F.2d 925, 930 (11th Cir. 1990); Place St. Charles v.
J. A. Jones Constr. Co. , 823 F.2d 120, 124 (5th Cir. 1987); Milwaukee Typographical Union No. 23 v. Newspapers, Inc. , 639 F.2d 386, 389-90 (7th Cir. 1981); I/S Stavborg v. National Metal Converters, Inc. , 500 F.2d 424, 426-27 (2d Cir. 1974). This “finality exception” has been cri ticized, however, because “without more, it is equally plausible that a final ity clause could be interpreted to mean [that] the parties intended to have the award enforced in state rather than federal court.” Oklahoma City Assocs. , 923 F.2d at 794; accord PVI, Inc. v. Ratiopharm GmbH , 135 F.3d 1252, 1254 (8th Cir. 1998). Similarly, courts have also held that parties who a gree that their arbitration shall be governed by the rules of the AAA have impl icitly consented to judicial confirmation, because AAA Rule 47(c) states that “[p]arties to these rules shall be-12-

deemed to have consented that judgment upon the arb itration award may be entered in any federal or state court having jurisdiction thereof.” See McKee , 45 F.3d at 983-84 & n.3; Rainwater , 944 F.2d at 192-94; Commonwealth Edison Co. v. Gulf Oil Corp. , 541 F.2d 1263, 1272-73 (7th Cir. 1976). In the case before us, it is undisputed that the pa rties did not explicitly consent, in the Agreement, to have federal court ju dgment entered upon their arbitration award. Furthermore, the Agreement cont ains no clause stating that arbitration shall be final and binding. Sutter arg ues, however, that the parties’ arbitration clause, which mandates that any dispute s shall be arbitrated “before the American Arbitration Association,” I App. at 18 , indicates an agreement that the parties be bound by the procedural rules of the AAA. We agree. Courts interpreting similar contractual clauses, inwhich the parties agree to arbitrate before the AAA but do not specify which p rocedural rules are to apply to the arbitration, have held that “[s]ince the drafte r of the arbitration provision contemplated arbitration by the AAA of all disputes arising out of the contract, the relevant commercial arbitration rules promulgat ed by the AAA were incorporated into the arbitration agreement.” Schulze and Burch Biscuit Co. v. Tree Top, Inc. , 642 F. Supp. 1155, 1157 (N.D. Ill. 1986), aff’d , 831 F.2d 709 (7th Cir. 1987); see also Mulcahy v. Whitehill , 48 F. Supp. 917, 919 (D. Mass. 1943) (stating that “the defendant’s unqualified submissi on of disputes” to arbitration2 P & P’s post-dispute objections to Rule 47(c) are i rrelevant. At the time it

signed the Agreement, P & P agreed to arbitrate bef ore the AAA. Absent some objection in the Agreement , P & P’s contractual promise to arbitrate before t he AAA included implied consent to the AAA’s procedura l rules. P & P cannot unilaterally free itself from its contractual oblig ation by making post-dispute objections to a specific AAA Rule. -13- before the AAA “necessarily implied a submission to the Rules of Procedure of the [AAA]” and that “[i]t follows . . . that the de fendant, by consent, is bound . . . by the [AAA’s] Rules of Procedure”). Indeed, Rule 1 of the AAA, to which P & P did not object, states that “[t]he parties sh all be deemed to have made these rules a part of their arbitration agreement wheneve r they have provided for arbitration by the American Arbitration Association.” See Appellee’s Br. at 21. We find the logic of this Rule, and of the courts i nterpreting similar contractual provisions, to be persuasive, especiall y in light of the liberal federal policy favoring binding arbitration. See McKee , 45 F.3d at 985. A party who consents by contract to arbitration before the AAA also consents to be bound by the procedural rules of the AAA, unless that party indicates otherwise in the contract. By agreeing to arbitrate before the AAA, and by not specifying an alternative set of arbitration rules in the agreeme nt, P & P and Sutter impliedly agreed that they would be bound, in the course of a rbitration proceedings, by the procedural rules of the AAA, including Rule 47(c). 2 Thus, P & P and Sutter impliedly agreed “that judgment upon the arbitratio n award may be entered in any3 P & P argues that this issue is not before this cou rt, because it did not raise

the issue in its appeal, and because Sutter has notfiled any cross-appeal challenging the judgment of the district court. Se e Appellant’s Reply Br. at 12. Although Sutter did not file a cross-appeal, it didraise this issue in its brief, and, in any event, “a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings.” State Farm Mut. Auto. Ins. Co. v. Narvaez , 149 F.3d 1269, 1270-71 (10th Cir. 1998). If the “venue” provisions of 9 U.S.C. §§ 9-10 are mandatory, and authorize onlythe federal district court in the district in which the award was made to confirm or vacate arbitration awards, then the district court in this case had no power to confirm the award. -14- federal or state court having jurisdiction thereof. ” Therefore, the jurisdictional prerequisite of § 9 was satisfied here.

B. Did the Oklahoma District Court Have Power to Confirm or Vacate the Award? Having determined that the parties, in the Agreemen t, contemplated judicial confirmation of arbitration awards, and that theref ore § 9 authorizes a federal district court to confirm the arbitration award, we must next determine whether the specific district court in this case—the United States District Court for the Western District of Oklahoma—was authorized by § 9 to confirm the award. 3 Section 9 states, again in relevant part, that if t he parties have agreed to judicial confirmation, and shall specify the court, then at any time withi n one year after the award is made any party to the arbitration may appl y to the court so specified for an order confirming the award, and th ereupon the court must grant such an order unless the award is vacate d, modified, or4 Every federal circuit court to address the issue, w hether or not it holds that

the FAA authorizes more than one federal court to c onfirm or vacate arbitration awards, has held that § 9 and § 10 should be interp reted uniformly in this regard. Section 10 employs slightly different wording than § 9, and could conceivably be interpreted differently from § 9. Section 10 state s that “the United States court in and for the district wherein the award was made maymake an order vacating the award upon the application of any party to the arbi tration.” However, because “the proceeding in which a party would seek to have its award confirmed under § 9 is the same proceeding in which that party’s op ponent would seek to have the award vacated” under § 10, Hubbard v. Prudential Se c. Inc. (In re VMS Sec. Litig.) , 21 F.3d 139, 142 (7th Cir. 1994), courts have tre ated § 9 and § 10 identically for “venue” purposes, and have held that a particular district court either has power to both vacate or confirm an award , or has power to do neither. -15- corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for t he district within which such award was made

. 9 U.S.C. § 9 (emphasis added). Federal appellate courts have reached different con clusions with regard to the interpretation of this statute. Some circuits hold that § 9 (or § 10) 4 authorizes only the district court in the district where the award was made to confirm (or vacate) arbitration awards. See Bill Harbert Constr. Co. v. Cortez Byrd Chips,
Inc. , 169 F.3d 693, 694-95 (11th Cir. 1999); Sunshine Beauty Supplies, Inc. v. United States Dist. Ct. for the Cent. Dist. of Cal. , 872 F.2d 310, 311-12 (9th Cir. 1989); Island Creek Coal Sales Co. v. City of Gainesville, Fla. , 729 F.2d 1046, 1049-50 (6th Cir. 1984). Other circuit courts, inc luding the Fifth Circuit in the Texas appeal in this case, have reached the opposit e conclusion, and have held5 We have never reached this precise issue. OklahomaCity Assocs. dealt

only with whether the parties consented to judicial confirmation of their arbitration award, and, accordingly, whether anyfederal district court had jurisdiction under § 9 to confirm the award. 923 F .2d at 793-95. At least one district court within this circuit, however, has re ached the “venue” issue, and sided with the majority of the circuits, holding th at authority under the FAA to confirm or vacate arbitration awards is not limited to the district court in the district where the award was made. Denver & Rio Gr ande West. R.R. Co. v. Union Pacific R.R. Co. , 868 F. Supp. 1244, 1247-50 (D. Kan. 1994), aff’d , 119 F.3d 847 (10th Cir. 1997). -16- that any federal district court otherwise having ju risdiction over the action is authorized to confirm or vacate an arbitration award. See Apex Plumbing Supply, Inc. v. U.S. Supply Co. , 142 F.3d 188, 190-92 (4th Cir.), cert. denied , 119 S. Ct. 178 (1998); Sutter , 125 F.3d at 918-20; Hubbard v. Prudential Sec. Inc. (In re VMS Sec. Litig.) , 21 F.3d 139, 142-45 (7th Cir. 1994); Smiga v. Dean Witter Reynolds, Inc. , 766 F.2d 698, 706-07 (2d Cir. 1985). 5 The reasoning of the majority of the circuits, whic h hold that authority under the FAA to confirm or vacate arbitration awar ds is not limited to the district court in the district where the award was made, is persuasive. As several of those cases point out, the opposite conclusion leads to “absurd results.” In re VMI Sec. Litig. , 21 F.3d at 144; see also Sutter , 125 F.3d at 919. For instance, if § 9 gave only the district court in the district wh ere the arbitration award was made power to confirm the award, § 3 of the FAA wou ld be rendered meaningless. See In re VMI Sec. Litig. , 21 F.3d at 144. Section 3 instructs “any-17-

of the courts of the United States” to “stay the tr ial of the action” pending arbitration if that court is “satisfied that the issue involved in such suit or proceeding is referable to arbitration” under the p arties’ agreement. 9 U.S.C. § 3. However, if that court had no power to confirm (or vacate) the award under § 9 (or § 10), it should dismiss the action rather thanstay proceedings, because that court has no power to take any further action in the case. See Sutter , 125 F.3d at 919; In re VMI Sec. Litig. , 21 F.3d at 144. In addition to eviscerating a pr ovision of Title 9, the minority interpretation would also lead to wasteful allocation of judicial resources, because district courts which o therwise have jurisdiction over arbitration cases would often be required to dismis s them, which would compel litigants to “sue in another forum to enforce [the] award under § 9.” In re VMI Sec. Litig. , 21 F.3d at 145; see also Smiga , 766 F.2d at 706. Furthermore, “ordinary canons of statutory construc tion suggest that Congress would have used stronger language than ‘such application may be made’ or ‘may apply’ if the intention was to restrict the power of a federal court in Arbitration Act cases.” Smiga , 766 F.2d at 706 (citation omitted) (emphasis added). Indeed, as the Seventh Circuit has indicat ed, when Congress intends for one specific district court to be the exclusive for um for a certain matter, it uses unambiguous language to express its intention. See In re VMI Sec. Litig. , 21 F.3d at 144 & n.3 (referencing the Miller Act, 40 U .S.C. § 270b(b), which states-18-

that “[e]very suit instituted under this section sh all be brought . . . in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere,” and the Clean Air Act, 42 U.S.C. § 7604(c)(1), which states that “[a]ny action . . . may be brough t only in the judicial district in which such sources are located”); see also Apex Plumbing Supply, Inc. , 142 F.3d
at 192. On the other hand, none of the minority opinions co ntain any detailed analysis of the issue; each of the minority opinion s rests its conclusion solely on citations to ostensibly applicable precedent. For instance, the Eleventh Circuit stated simply that it was bound by a pre-split Fifth Circuit case— Naples v. Prepakt Concrete Co. , 490 F.2d 182, 184 (5th Cir. 1974)—which the modern Fifth Circuit, in Sutter , found inapplicable. See Bill Harbert Constr. Co. , 169 F.3d at 694-95; Sutter , 125 F.3d at 918-19. The Ninth Circuit in Sunshine Beauty Supplies, Inc. and Central Valley Typographical Union, No. 46 v. McCl atchy Newspapers , 762 F.2d 741, 744 (9th Cir. 1985), considered its elf bound by circuit precedent, but that circuit precedent— United States ex rel. Chicago Bridge & Iron Co. v. ETS-Hokin Corp. , 397 F.2d 935 (9th Cir. 1968)—contains no analysis of the issue, and merely states its conclusion. See ETS-Hokin Corp. , 397 F.2d at 938-39. Finally, the Sixth Circuit relies solely on Prepakt Concrete Co. , ETSHokin Corp. , and Commonwealth Edison Co. v. Gulf Oil Co. , 541 F.2d 1263,6 Of course, merely because a court has the power to confirm an award does

not always mean that it should do so. Often, as no ted in Sutter , concerns such as the “first to file rule” will play a role in decidi ng which court, of the many that have power to confirm the award, should in fact do so. See Sutter , 125 F.3d at 920. Other reasons for transfer, including transfe r pursuant to 28 U.S.C. § 1404 or common law doctrines such as forum non convenien s, may also apply. -19- 1272 n.16 (7th Cir. 1976), a case the Seventh Circu it ignored as “dicta” on this point in In re VMS Sec. Litig. , 21 F.3d at 143. In short, we do not consider the reasoning of the minority cases to be compelling. Accordingly, we join the majority of our sister cir cuits, and hold that authority under the FAA to confirm or vacate arbitr ation awards is not limited to the district court in the district where the award was made. 6 Therefore, the United States District Court for the Western District of O klahoma was authorized by § 9 to confirm the arbitration award, even though the award was handed down in Dallas, Texas.

II. Substantive Issues Having determined that the district court in this c ase had jurisdiction to hear the case, and was authorized by the FAA to con firm the award, we next consider whether the district court properly grante d Sutter’s motion to confirm the arbitration award, and denied P & P’s motion to vac ate it.-20-

Section 9 states that a federal district court havi ng jurisdiction over the matter “must grant” a motion to confirm an arbitrat ion award, “unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9. We have stated that “[a] co urt may only vacate an arbitration award for reasons enumerated in . . . § 10, or for a handful of judicially created public policy reasons.” Denver & Rio Grande West. R.R. Co. v. Union Pac. R .R. Co. , 119 F.3d 847, 849 (10th Cir. 1997). Section 10 a llows vacation of an arbitration award only where (1) the award was proc ured by corruption, fraud or undue means; (2) there was evident partiality or co rruption on the part of the arbitrators; (3) the arbitrators were guilty of mis conduct; or (4) the arbitrators exceeded or imperfectly executed their powers. See 9 U.S.C. § 10(a). In addition to these statutory grounds for vacation, courts hav e on occasion vacated arbitration awards which violate public policy, wer e based on a manifest disregard of the law, or were arrived at without a fundamentally fair hearing. See Denver & Rio Grande , 119 F.3d at 849 (citing cases). P & P argues that the fourth statutory ground for v acation applies to this case, asserting that the arbitrator exceeded his po wers by ruling on its tort-based claims, which it contends are beyond the scope of t he parties’ arbitration clause. The district court ruled that all issues presented in this case, including the tortbased issues raised by P & P, were within the scope of the parties’ arbitration-21-

clause, and therefore arbitrable. Our “review of . . . a district court decision confirming an arbitration award on the ground that the parties agreed to submit their dispute to arbitration should proceed like re view of any other district court decision finding an agreement between parties,” and we should “accept[] findings of fact that are not ‘clearly erroneous’ but decid[e] questions of law de novo .” First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 947-48 (1995). The parties’ arbitration clause provides that “[a]ny controversy, claim, or breach arising out of or relating to this Agreement” shall be arbitrable. I App. at 18 (emphasis added). The Supreme Court has noted that such an arbitration clause, not limited to questions of contractual int erpretation, is a “broad” one. Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 398 (1967). We must keep in mind that the strong presumption in favor of arbitrability, see Moses H. Cone , 460 U.S. at 24-25, “applies with even greater for ce” when such a broad arbitration clause is at issue. Shearson Lehman Hutton, Inc. v. Wagoner , 944 F.2d 114, 121 (2d Cir. 1991). P & P argues that the district court erred in rulin g that P & P’s tort-based claims “arise out of” or are “related to” the Agree ment, and are therefore arbitrable. P & P asserts that “claims relating to third-party contracts,” such as P & P’s claims that Sutter tortiously interfered wi th P & P’s contracts with its employees, can never fall within the scope of an “a rising out of or relating to”-22-

arbitration clause. Appellant’s Br. at 30-31. To support this contention, P & P cites Genesco, Inc. v. T. Kakiuchi & Co. , 815 F.2d 840 (2d Cir. 1987). In that case, the court, construing a similarly-worded arbi tration clause, held that RICO claims, Robinson-Patman Act claims, common law frau d claims, unfair competition claims, and unjust enrichment claims were all arbitrable. Id. at 847- 56. However, the court held that a claim of tortio us interference with contractual relations was not arbitrable. Id. at 856. The court explained that “[i]n determining whether a particular claim falls within the scope of the parties’ arbitration agreement, we focus on the factual alle gations in the complaint rather than the legal causes of action asserted. If the a llegations underlying the claims ‘touch matters’ covered by the parties’ [contract], then those claims must be arbitrated, whatever the legal labels attached to them.” Id. at 846 (citation omitted). Applying this test, the court held that the tortious interference claim was unrelated, on the facts of that case, to the ag reement between the parties, and therefore did not “relate to” the agreement. Id. at 856. In other cases, however, courts have held that a cl aim of tortious interference with contract is “related to” or “arises out of” a contract. See , e.g. , American Recovery Corp. v. Computerized Thermal Imaging, Inc. , 96 F.3d 88, 94 (4th Cir. 1996). There is no per se rule, such as that suggested by P & P here, that claims relating to third-party contracts can n ever be “related to” two other-23-

parties’ contractual agreement. Rather, all claims with “a significant relationship to the [Agreement,] regardless of the label attache d” to them, arise out of and are related to the Agreement. See id. at 93; Gregory v. Electro-Mechanical Corp. , 83 F.3d 382, 384 (11th Cir. 1996) (stating that “[w]he ther a claim falls within the scope of an arbitration agreement turns on the fact ual allegations in the complaint rather than the legal causes of action asserted”); Sweet Dreams Unlimited, Inc. v. Dial-a-Mattress Int’l, Ltd. , 1 F.3d 639, 643 (7th Cir. 1993) (stating that “a party may not avoid a contractual arbitration clause mere ly by casting its complaint in tort”). We agree with the district court, and with Sutter, that the tort-based claims alleged by P & P arise out of, or relate to, the Ag reement itself. As the district court succinctly stated, [P & P’s] allegations of improper conduct by [Sutte r] are limited to actions taken in connection with [Sutter’s] decisio n to terminate the [A]greement. The purported interference with [P & P’s] contracts with its employees as well as its relationship withthird parties is based solely on the actions of [Sutter] at the time it terminated the . . . Agreement. . . . These contentions each relate t o the primary claim that [Sutter] breached the agreement by terminating it. It is the manner in which that termination occurred that form s the basis for the[] additional causes of action. Therefore, thes e causes of action are related to the claim which is expressly subjectto arbitration. I App. at 160. P & P’s tort-based claims were related to the Agreement and were therefore arbitrable, and, accordingly, the arbitrator did not exceed his powers by ruling on them. Because there is no ground on whic h the district court should-24-

properly have vacated or modified the arbitration award, the district court correctly confirmed it pursuant to § 9.

CONCLUSION For the reasons discussed above, the judgment of th e district court is
AFFIRMED.