VALUESELLING ASSOCIATES, LLC, a California limited liability company v. Kevin Temple, an individual; ENTERPRISE SELLING GROUP

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALUESELLING ASSOCIATES, LLC, a
California limited liability company,
Plaintiff - Appellant,
v.
KEVIN TEMPLE, an individual;
ENTERPRISE SELLING GROUP,
Defendants - Appellees.
No. 11-56229
D.C. No. 3:09-cv-01493-JM-MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted April 8, 2013
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.
FILED
MAY 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appellant ValueSelling Associates, LLC (VSA) appeals the district
court’s denial of its motion to vacate, modify, or correct an arbitration award. We
affirm.
1. We may vacate an award under the Federal Arbitration Act only if the
award “fails to draw its essence from the agreement,” or “exhibits a manifest
disregard of law.” Biller v. Toyota Motor Corp., 668 F.3d 655, 665 (9th Cir. 2012)
(citations and internal quotation marks omitted).
2. VSA points to nothing in the arbitration record that the district court
should have reviewed to warrant vacatur, modification, or correction of the
arbitration award. In keeping with the intrinsic / extrinsic test set out in Mattel,
Inc. v. MGA Entertainment, 616 F.3d 904, 913-14 (9th Cir. 2010), as amended, the
arbitrator determined that the similar components of the Value Selling Program
(VSP) and the Enterprise Selling Program (ESP) were not entitled to copyright
protection and, alternatively, were neither “substantially similar,” nor “virtually
identical.” These legal conclusions, even if erroneous, do not evince “manifest
disregard” of the law. Matthews v. Nat’l Football League Mgmt. Council, 688
F.3d 1107, 1115 (9th Cir. 2012) (“For an arbitrator’s award to be in manifest

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disregard of the law, it must be clear from the record that the arbitrator recognized
the applicable law and then ignored it. . . .”) (citation and alteration omitted).
3. The agreements in this case compelled arbitration of “[a]ny dispute,
controversy, or question arising under, out of or relating to” the purchase of VSA
and the subsequent termination of Temple’s rights to market VSA products. In its
submission to the arbitrator, VSA alleged that Temple’s ESP infringed VSA
copyrights. Accordingly, the arbitrator acted within his authority when he
addressed copyright infringement, including whether the VSP components were
copyrightable. See Schoenduve Corp. v. Lucent Tech., Inc., 442 F.3d 727, 732 (9th
Cir. 2006) (holding that an “arbitrator’s authority is determined by the contract
requiring arbitration as well as by the parties’ definition of the issues to be
submitted in the submission agreement”).
4. Our power to modify or correct the arbitration award is circumscribed
by 9 U.S.C. § 11(b), which provides that a court “may” modify or correct an award
when “the arbitrators have awarded upon a matter not submitted to them, unless it
is a matter not affecting the merits of the decision upon the matter submitted.” As
previously discussed, the arbitrator’s ruling addressing copyright protection for

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VSP components was within the scope of the matter submitted to him. Therefore,
we may not modify this portion of the award. See 9 U.S.C. § 11(b).
AFFIRMED.

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