United States v. 2015-07-17 | 13-16111 | Michael Weiner V. the Orig. Talk Radio Network |…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DR. MICHAEL A. WEINER,
p/k/a Michael Savage, and
SAVAGE PRODUCTIONS, INC., No. 13-16111
Plaintiff-Appellee, D.C. No. 4:10-cv-05785-YGR
v.
MEMORANDUM
THE ORIGINAL TALK RADIO and ORDER*
NETWORK, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted July 9, 2015 **
San Francisco, California
Before: GILMAN, *** GRABER, and WATFORD, Circuit Judges.
The Original Talk Radio Network, Inc. (OTRN) appeals the district court’s
confirmation of an arbitration panel’s award in favor of Dr. Michael A. Weiner,
FILED
JUL 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.

-- 1 of 5 --

known on-air as “Michael Savage” (Weiner). OTRN syndicated Weiner’s
talk-radio show for at least a decade before their business relationship soured in
2010. As the expiration of the parties’ syndication agreement (the Agreement)
drew near, a third party made a competing offer for Weiner’s services, which
OTRN sought to match pursuant to a “right-to-match” provision in the Agreement.
But Weiner refused to recognize OTRN’s offer, arguing that OTRN had failed to
properly exercise its right to match. This caused OTRN to insist that the parties
proceed to arbitration to settle their dispute pursuant to the Agreement’s arbitration
clause.
In September 2012, the arbitration panel issued its award, terminating the
Agreement and awarding Weiner over $800,000 in withheld compensation.
Weiner subsequently filed a motion to confirm the arbitration award, which the
district court granted in May 2013. He has also asked this court to impose
sanctions on OTRN for filing a frivolous appeal.
We review de novo a district court’s confirmation of an arbitration award.
Bosack v. Seward, 586 F.3d 1096, 1102 (9th Cir. 2009). The scope of a federal
court’s review of an arbitration award under the Federal Arbitration Act (FAA) is
“extremely limited.” G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1105
(9th Cir. 2003). “Neither erroneous legal conclusions nor unsubstantiated factual
findings justify federal court review of an arbitral award . . . .” Bosack, 586 F.3d at
-2-

-- 2 of 5 --

1102 (internal quotation marks omitted). Rather, the FAA limits the vacatur of an
award to four circumstances: (1) where the award was procured by corruption,
fraud, or undue means; (2) where there was evident partiality or corruption in the
arbitrators; (3) where the arbitrators were guilty of any misbehavior by which the
rights of the parties have been prejudiced; or (4) where the arbitrators exceeded
their powers. 9 U.S.C. § 10(a).
OTRN argues that the arbitration award should be vacated on all of these
grounds. Specifically, OTRN contends that the arbitration panel acted beyond the
scope of its authority when it (1) terminated the Agreement, (2) ruled on claims
that OTRN had not agreed to submit to arbitration, (3) ignored OTRN’s right to
set-off damages against Weiner’s compensation, and (4) allowed Weiner’s “threats
and intimidation” to corrupt the arbitration process. But even if vacatur is not
warranted, OTRN argues that the district court erred in two additional ways: first,
by failing to authorize post-arbitration discovery and, second, by naming Talk
Radio Network, Inc. as a party in the judgment. All of these arguments lack merit.
We first turn to OTRN’s final contention that the district court “mistakenly”
added Talk Radio Network, Inc. as a party to the judgment, a point not raised
below. We find no support for this contention in the record. To the contrary,
OTRN has referred to itself on numerous occasions throughout this case as “The
Original Talk Radio Network, Inc., d/b/a Talk Radio Network, Inc.”
-3-

-- 3 of 5 --

As for all the remaining issues that are dealt with in the district court’s
opinion, we find ourselves in complete agreement with the court’s reasoning
except for the court’s articulation of why the arbitration panel did not act outside
the scope of its authority by terminating the Agreement. To repeat the district
court’s explanation for denying all of OTRN’s other claims would thus be unduly
duplicative and serve no jurisprudential purpose. We accordingly adopt the district
court’s reasoning from its May 2, 2013 opinion as it relates to all claims other than
the one challenging the termination of the Agreement.
Regarding OTRN’s remaining argument as to the scope of the arbitrators’
authority to terminate the Agreement, we affirm the judgment of the district court
on a different basis. See Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008) (“[W]e can affirm on any ground supported by the record.”). Although
¶ 8 of the Agreement states that “Termination shall not be a remedy for any
ambiguity in this Agreement, or in any forum, including without limitation
arbitration or any arbitration ruling” (emphasis added), that provision is not a
blanket prohibition on termination as OTRN suggests. In fact, three pages of the
Agreement are dedicated to various other circumstances under which the
Agreement could be terminated. OTRN argued as much in its efforts to compel
arbitration, and it aptly summarized the issue as follows in its reply brief at that
stage: “[T]he agreement expressly allows an arbitrator to order termination of the
-4-

-- 4 of 5 --

agreement as a remedy.” (Emphasis in original.) We agree with OTRN’s earlier
reading of the Agreement and decline to vacate the arbitration award on that basis.
The final issue before us is Weiner’s motion for sanctions under Rule 38 of
the Federal Rules of Appellate Procedure and under 28 U.S.C. §§ 1912 and 1927.
He claims that OTRN “pursued a frivolous appeal and vexatiously multiplied the
proceedings in this case.” We impose sanctions only when an appeal’s “result is
obvious or the appellant’s arguments are wholly without merit.” Glanzman v.
Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir. 1989) (internal quotation marks omitted).
Although OTRN’s arguments on appeal are unavailing, the shortcomings of its
case do not rise to this level. OTRN offered record evidence and case citations to
support most of its arguments, and it earnestly attempted to distinguish the cases
cited by Weiner. Sanctions can be a valuable tool for dissuading knee-jerk appeals
or appeals intended simply to delay the enforcement of a judgment, but this case is
not an example of either.
The judgment of the district court is therefore AFFIRMED, and Weiner’s
motion for sanctions is DENIED.
-5-

-- 5 of 5 --