Bakhai v. BDO USA, P.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-cv-23896-ALTMAN/Lett

KASHYAP BAKHAI,

Petitioner,

v.

BDO USA, P.C.,

Respondent.

_____________________________/

ORDER ADOPTING IN PART AND

REJECTING IN PART REPORT AND RECOMMENDATION

Our Petitioner, Kashyap Bakhai, filed a petition under Section 9 of the Federal Arbitration

Act (“FAA”) “for the entry of an order confirming the Arbitration Award . . . issued by an arbitral

panel . . . of the American Arbitration Association (‘AAA’) in the arbitration captioned Kashyap Bakhai

v. BDO USA, P.C., AAA Case No. 01-23-0002-5310[.]” Petition to Confirm Arbitration (“Petition”)

[ECF No. 1] at 1. Bakhai then filed a motion to confirm the arbitration panel’s “Final Award granting

Bakhai’s motion for an award of attorney’s fees, expenses, and the costs of arbitration.” Motion to

Confirm Final Award (“Motion to Confirm”) [ECF No. 40] at 1. The Respondent, BDO USA P.C.,

opposed the Petition and Motion and moved for us to vacate the arbitration award under Section 10

of the FAA. See Response in Opposition to the Petition and Cross-Motion to Vacate (“Motion to

Vacate”) [ECF No. 23]. We referred both the Motion to Confirm and the Motion to Vacate to

Magistrate Judge Enjoliqué A. Lett for a Report and Recommendation. See Amended Order of Referral

[ECF No. 43].

On June 6, 2025, Magistrate Judge Lett entered a Report and Recommendation, suggesting

“that the Motion to Vacate be DENIED and the Motion to Confirm be GRANTED.” Report and

Recommendation (“R&R”) [ECF No. 75] at 2. Magistrate Judge Lett concluded that the arbitration

award should be confirmed because BDO failed to show (1) that “the panel impermissibly exceeded

its authority[,]” id. at 6; (2) that BDO “was prejudiced by being prohibited from presenting material

evidence of . . . BDO’s investigation into Bakhai’s misconduct [and] disclosure of confidential

information[,]” id. at 10; or (3) that “the Award was procured by fraud due to perjured testimony[,]”

id. at 13. Magistrate Judge Lett then cautioned the parties as follows:

Within fourteen (14) days after being served with a copy of this Report and

Recommendation, a party may serve and file specific written objections to these

proposed findings and recommendations. FED. R. CIV. P. 72(b)(2). A copy of the

objections shall be served upon all other parties. A party may respond to another

party’s objections within fourteen (14) days after being served with a copy thereof.

FED. R. CIV. P. 72(b)(2). Any different deadline that may appear on the electronic

docket is for the Court’s internal use only and does not control. If a party fails to object

to the Magistrate Judge’s findings or recommendations as to any particular claim or

issue contained in this Report and Recommendation, that party waives the right to

challenge on appeal the District Court’s order based on the unobjected-to factual and

legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Id. at 17.

Both sides objected to Magistrate Judge Lett’s R&R. See Bakhai’s Limited Objection to R&R

(“Bakhai Objections”) [ECF No. 76]; Respondent’s Objections to the R&R (“BDO Objections”)

[ECF No. 80].1 The parties then responded to each other’s objections. See Respondent’s Response to

Petitioner’s Limited Objection (“Response to Bakhai Objections”) [ECF No. 84]; Bakhai’s Response

in Opposition to BDO’s Objections (“Response to BDO Objections”) [ECF No. 85].2 After careful

review of the R&R, the briefing, and the governing law, we OVERRULE BDO’s Objections,

SUSTAIN Bakhai’s Objection, and ADOPT in part and REJECT in part the R&R.

THE FACTS

Bakhai, a “licensed certified public accountant who regularly provides services to high-net-

worth clients,” was a partner in the accounting firm of Morrison Brown Argiz & Farra (“MBAF”).

1 An unsealed and redacted version of the BDO Objections can be found at [ECF No. 79].

2 An unsealed and redacted version of the Response to Bakhai Objections can be found at [ECF No.

82].

R&R at 2 (citing Initial Arbitration Award (“Initial Award”) [ECF No. 12-1] at 8–9). On December

30, 2020, Bakhai and the other partners at MBAF “agreed to sell substantially all of the assets of

MBAF to [the] Respondent, BDO.” Initial Award at 8. As part of the sale, Bakhai signed a

“Partnership Agreement” and became a partner at BDO. See id. at 9 (explaining that Bakhai received

“a grant of 1,101 variable share units in Respondent’s partnership”). Under the Partnership

Agreement, BDO’s “Board of Directors may for cause terminate the interest in the partnership of any

partner at any time.” R&R at 2 (cleaned up & emphasis added) (quoting Partnership Agreement [ECF

No. 23-1] § 11.4). “‘Cause’ is defined in relevant part in the [Partnership Agreement] as follows: ‘(a)

such Partner’s material breach of any applicable covenant under this Agreement; (b) such Partner’s

material breach of any written policy of the Partnership, including but not limited to the Partnership’s

Code of Conduct; . . . (d) gross negligence or willful misconduct by such Partner in the performance

of his/her duties; (e) such Partner’s material failure to perform his/her duties or make continued,

material economic contributions to the Partnership to an extent that such Partner no longer deserves

to remain a Partner; … (i) conduct by such Partner that has caused, or could reasonably be expected

to cause, substantial injury, whether monetary or otherwise, to the Partnership, its business or its

reputation; [and] (j) such Partner’s pursuit of activities that are materially adverse or contrary to the

best interests of the Partnership or its business[.]’” Initial Award at 9–10 (quoting Partnership

Agreement § 11.5).

“On January 10, 2023, BDO terminated Bakhai’s partnership interest.” R&R at 3 (citing Initial

Award at 13). The Board’s decision to terminate Bakhai was based on two events. First, BDO believed

that Bakhai had leaked confidential information—which was later used in a lawsuit against BDO—

about one of BDO’s clients. See Initial Award at 13 (“BDO suspected that the information contained

in paragraph 47 of the complaint came from someone inside the firm. . . . The investigation quickly

focused on Bakhai.”). Second, BDO accused Bakhai of failing to “disengage” with one of his clients

after the client “sexually harassed a firm employee[.]” Id. at 21. Bakhai pursued arbitration under the

Partnership Agreement and “asserted a claim for breach of contract against BDO, alleging that it

terminated his partnership interest in BDO without cause.” Initial Award at 3. BDO asserted its own

“counterclaims for breach of contract and unjust enrichment.” R&R at 3 (citing Initial Award at 3). A

three-member arbitration panel (the “Panel”) “heard testimony and reviewed evidence for six (6)

days.” Ibid.

A majority of the Panel “concluded that ‘Bakhai’s partnership interest was not validly

terminated for cause’ under the circumstances presented.” Id. at 4 (quoting Initial Award at 24). The

Panel rejected BDO’s initial argument that Delaware’s “Business Judgment Rule applies to the

decision of the Board to terminate [Bakhai].” Initial Award at 4. Based on its review of Delaware law,

the Panel concluded that the Business Judgment Rule “does not apply to a breach of contract action

brought against the corporate entity by the other party to the contract.” Ibid. The Panel thus found

that Bakhai didn’t “have to show bad faith” to prevail. Id. at 8; see also id. at 7 (“In the context of the

process and procedure BDO followed in reaching its decision, good faith, or lack thereof, is a factor

in our findings and conclusions. It is not, however, the legal standard of review. Rather, we look to

see whether the preponderance of the evidence demonstrates that the Respondent had cause, as

defined in the contract, to terminate Bakhai’s partnership interest. If not, it was in breach of that

contract.”).

Next, the Panel “was not convinced that Bakhai had leaked any confidential information[.]”

R&R at 4 (citing Initial Award at 21). The Panel criticized BDO’s inability to present a factual basis to

support its belief that Bakhai was the source of the leak. See Initial Award at 14 (“No written materials

were provided, shown or presented for the Board’s review or consideration. . . . No one involved in

the investigation testified, either. We don’t know first-hand who was interviewed, what they were

asked, and what they said. No recorded witness statements or memos from investigators were

presented. We were only presented with the second-hand testimony of Matt Becker, the member of

senior management who handed Bakhai the letter of termination. Everything he told us about the

investigation had been in turn told to him by someone else. And, understandably, he couldn’t provide

details of the investigation.”). While the Panel acknowledged that “BDO may have been suspicious of

Bakhai based on the circumstantial evidence it had[,]” it ultimately held that this “suspicion . . . was

not enough to justify termination of Bakhai for cause” and that the testimony of Bakhai and his

witnesses was “more convincing than the circumstantial evidence” BDO presented. Id. at 20. In

addition, the Panel “noted that Bakhai was not given proper due process because he was not given

notice nor did he have an opportunity to respond to the accusations against him.” R&R at 4; see also

Initial Award at 20 (“Equally important, Respondent’s procedure for the Board to consider such

terminations for cause did not provide Claimant with notice of what he was being accused of or an

opportunity to present his position to the Board before its decision to terminate his partnership

interest. This lack of minimum due process and fundamental fairness made the decision fatally

flawed.”).

Finally, the Panel wasn’t “persuaded that Bakhai defiantly failed to discharge a client.” R&R at

4. The Panel accepted Bakhai’s explanation that he had, in fact, informed the client’s agent “that the

firm would disengage, and all future services would be transitional,” and that the client “was difficult

to get in touch with.” Initial Award at 22; see also id. at 23 (“Significantly, after Bakhai was terminated,

no one at BDO moved to discharge [the client]. Indeed, BDO continued to represent [the client] for

several months when [the client], not BDO, ended the relationship. Becker testified that this continued

representation was professionally required because, in disengaging from a client, the firm cannot cause

the client any undue hardship. Becker also explained that [the client] was difficult to reach,

complicating disengagement. These were precisely the same factors that Bakhai said made a prompt

discharge of [the client] difficult. This failure to discharge the client after Bakhai was terminated makes

the indignation at Bakhai’s failure ring a little hollow.”). The Panel also castigated the Board for, once

again, failing to give Bakhai notice of this accusation or an opportunity to present his side of the story.

See ibid. (“The board may have found this explanation to be insufficient. The problem is that they

never heard it, as Bakhai was given no notice of the accusation nor an opportunity to respond.”). The

victim of the alleged sexual harassment also testified that Bakhai “protected” her and that BDO’s

investigative team “did not ask her about [the client] until months after Bakhai was terminated.” Ibid.

For these reasons, the Panel “determined that BDO’s justifications for Bakhai’s termination were

deficient.” R&R at 4 (citing Initial Award at 24).3

THE LAW

I. Review of a Magistrate Judge’s R&R

District courts must review de novo any part of a magistrate judge’s disposition that has been

properly objected to. See FED. R. CIV. P. 72(b)(3). Although Rule 72 itself is silent on the standard of

review, the Supreme Court has acknowledged that Congress’s intent was to require a de novo review

only where objections have been properly filed—and not when neither party objects. See Thomas v.

Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court

review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when

neither party objects to those findings.”). “If no objection or only [a] partial objection is made to the

3 One member of the Panel, John Chandler, dissented on several grounds. First, Chandler found that

Delaware’s Business Judgment Rule applied to Bakhai’s termination and that Bakhai was required to

demonstrate bad faith. See Initial Award at 30 (“BDO’s termination of Bakhai’s partnership agreement

is the simplest and most classic application of the business judgment rule. Under Delaware law, the

business judgment rule prohibits an attack on the board’s good faith actions in governing its internal

affairs.”). Second, Chandler concluded that Bakhai and one of his key witnesses (Desiree Perez) were

“not credible” and that “[t]he circumstantial evidence [which] points to Mr. Bakhai as the leaker” was

sufficient for the Board to terminate Bakhai. Id. at 33 n.2. Third, Chandler thought that Bakhai’s failure

to immediately terminate his relationship with a client who had been accused of sexual harassment

risked exposing the firm “to enormous monetary and reputation risks[.]” Id. at 33. Fourth, Chandler

pointed to Section 14.7 of the Partnership Agreement—which provides “de novo review of the

termination decision by a panel of other partners”—and argued that this provision was “a cure for all

[Bakhai’s] complaints that he chose not to embrace.” Id. at 34.

magistrate judge’s report, the district judge reviews those unobjected portions for clear error.” Macort

v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (quoting Johnson v. Zema Sys. Corp., 170 F.3d 734,

739 (7th Cir. 1999) (cleaned up)).

When a party timely objects to a magistrate judge’s report and recommendation, the district

judge must make a de novo determination “of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Leonard v.

Polk Cnty. Sheriff’s Dep’t, 2019 WL 11641375, at *1 (M.D. Fla. Apr. 16, 2019) (Jung, J.). “Parties filing

objections to a magistrate’s report and recommendation must specifically identify those findings

objected to. Frivolous, conclusive, or general objections need not be considered by the district court.”

United States v. Tardon, 493 F. Supp. 3d 1188, 1209 (S.D. Fla. 2020) (Lenard, J.) (quoting Marsden v.

Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). The “[f]ailure to object to the magistrate [judge]’s factual

findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988) (citation omitted).

II. Confirming or Vacating an Arbitration Award

The Federal Arbitration Act (“FAA”) “supplies mechanisms for enforcing arbitration awards:

a judicial decree confirming an award, an order vacating it, or an order modifying or correcting it.”

Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 582 (2008) (citing 9 U.S.C. §§ 9–11). “These motions

all replace what would otherwise be a separate breach of contract action to enforce or dispute an

arbitration award, but they serve different purposes, request different relief, and are governed by

different provisions of the FAA.” McLaurin v. Terminix Int’l Co., LP, 13 F.4th 1232, 1238 (11th Cir.

2021) (citing Hall St. Assocs., 552 U.S. at 582). Since “the FAA reflects a national policy in favor of

arbitration agreements,” Section 9 of the FAA “allows a party to file a motion to confirm an arbitration

award for any reason, which ‘the court must grant unless the award is vacated, modified or corrected.’”

Ibid. (cleaned up & emphasis added) (quoting 9 U.S.C. § 9); see also Frazier v. CitiFinancial Corp., LLC,

604 F.3d 1313, 1321 (11th Cir. 2010) (“Section 9 of the FAA provides that, upon application of any

party to the arbitration, the court must confirm the arbitrator’s award unless it is vacated, modified, or

corrected in accordance with sections 10 and 11 of the statute.”). “There is a presumption under the

FAA that arbitration awards will be confirmed, and ‘federal courts should defer to an arbitrator’s

decision whenever possible.’” Frazier, 604 F.3d at 1321 (quoting B.L. Harbert Int’l, LLC v. Hercules Steel

Co., 441 F.3d 905, 909 (11th Cir. 2006)).

If a “successful party files a motion to confirm an arbitration award” under Section 9, “the

FAA allows the losing party to oppose the motion to confirm based on the moving party’s failure to

comply with the statute or the reasons specified in the statute for vacating, modifying, or correcting

the award.” McLaurin, 13 F.4th at 1238–39. Section 10 of the FAA “permits vacatur of arbitration

awards only in four narrow circumstances”:

(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.

Frazier, 604 F.3d at 1321 (emphasis added) (quoting 9 U.S.C. § 10(a)(1)–(4)). The “grounds for vacatur

listed in § 10(a) are exclusive.” Johnson v. Directory Assistants Inc., 797 F.3d 1294, 1299 (11th Cir. 2015);

see also Frazier, 604 F.3d at 1323 (agreeing that the Supreme Court’s decision in Hall Street “prohibit[s]

all extra-statutory grounds for vacatur, whether judicially-created or contractually agreed-upon”).

A motion to vacate under Section 10 “is not a mechanism to appeal or otherwise challenge

the merits of a dispute conclusively determined in arbitration. . . . [A] district court ‘may revisit neither

the legal merits of the award nor the factual determinations upon which it relies.’” Floridians for Solar

Choice, Inc. v. PCI Consultants, Inc., 314 F. Supp. 3d 1346, 1354 (S.D. Fla. 2018) (Bloom, J.) (quoting

Wiand v. Schneiderman, 778 F.3d 917, 926 (11th Cir. 2015)), aff’d sub nom. Floridians for Solar Choice, Inc. v.

Paparella, 802 F. App’x 519 (11th Cir. 2020); see also Oxford Health Plans LLC v. Sutter, 569 U.S. 564,

568–69 (2013) (“Under the FAA, courts may vacate an arbitrator’s decision only in very unusual

circumstances. That limited judicial review, we have explained, maintains arbitration’s essential virtue

of resolving disputes straightaway. If parties could take full-bore legal and evidentiary appeals,

arbitration would become merely a prelude to a more cumbersome and time-consuming judicial review

process.” (cleaned up)).

ANALYSIS

BDO moved to vacate the Award on three of the four grounds listed in Section 10 of the

FAA. First, BDO argued that the Panel exceeded its authority in violation of 9 U.S.C. § 10(a)(4) “by

imposing its own policy choice as to what the law should be rather than identifying and applying the

proper legal standard for the contract at issue.” Motion to Vacate at 10. BDO also accused the Panel

of “improperly modif[ying] the terms of the parties’ Partnership Agreement” and adopting

“contradictory findings[.]” Id. at 12, 14. Second, BDO alleged that the Panel was “guilty of misconduct”

under 9 U.S.C. § 10(a)(3) because it prevented BDO from “presenting evidence of its investigation

into Bakhai’s misconduct or direct evidence that Bakhai had disclosed confidential information to a

third party[.]” Id. at 14. Third, BDO urged us to vacate the Panel’s decision under 9 U.S.C. § 10(a)(1)

because the arbitration award was “procured by fraud”—the fraud being that one of Bakhai’s key

witnesses, Desiree Perez, “lied during her deposition[.]” Id. at 18–19.

Magistrate Judge Lett recommended that we deny all three of BDO’s arguments. First,

Magistrate Judge Lett rejected BDO’s “authority” argument because “[a]rbitrators do not exceed their

powers when they make errors, even a serious error.” R&R at 6 (quoting Gherardi v. Citigroup Glob.

Markets, Inc., 975 F.3d 1232, 1237 (11th Cir. 2020)). Second, she concluded that “there was no

misconduct by the panel because there were reasonable bases for limiting the evidence, none of which

prejudiced BDO.” Id. at 10. Third, she reasoned that the arbitration award wasn’t procured by fraud

because Perez’s allegedly perjurious testimony didn’t “materially relate[ ] to an issue in the arbitration.”

Id. at 14. BDO, unsurprisingly, objects to all three of Magistrate Judge Lett’s recommendations and to

a separate issue concerning post-judgment interest. See generally BDO Objections. Bakhai also filed a

“limited objection” to a specific factual finding Magistrate Judge Lett made “in the course of rejecting

BDO’s argument that the award was procured by fraud[.]” Bakhai Objections at 1. We’ll discuss (and

reject) each of these objections in turn.

I. The Panel Didn’t Exceed its Authority

We’ll start with BDO’s objection that Magistrate Judge Lett “was wrong to conclude that the

majority [of the Panel] did not exceed its authority.” BDO Objections at 13. Section 10(a)(4) of the

FAA “authorizes a federal court to set aside an arbitral award ‘where the arbitrator exceeded his

powers.’” Sutter, 569 U.S. at 569 (cleaned up) (quoting 9 U.S.C. § 10(a)(4)). “A party seeking relief

[under § 10(a)(4)] bears a heavy burden. It is not enough to show that the arbitrator committed an

error—or even a serious error.” Ibid. Because we must interpret and apply § 10(a)(4) “very narrowly[,]”

“[j]udicial review of arbitration decisions is ‘among the narrowest known to the law.’” Gherardi, 975

F.3d at 1237 (quoting Bamberger Rosenheim, Ltd. v. OA Dev., Inc., 862 F.3d 1284, 1286 (11th Cir. 2017)).

So, “[w]e must defer entirely to the arbitrator’s interpretation of the underlying contract no

matter how wrong we think that interpretation is.” Wiregrass Metal Trades Council AFL-CIO v. Shaw

Env’t & Infrastructure, Inc., 837 F.3d 1083, 1087 (11th Cir. 2016); see also Sutter, 569 U.S. at 569 (“Because

the parties ‘bargained for the arbitrator’s construction of their agreement,’ an arbitral decision ‘even

arguably construing or applying the contract’ must stand, regardless of a court’s view of its (de)merits.”

(quoting E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000))). Indeed, “under our current

scheme, an arbitrator’s actual reasoning is of such little importance to our review that it need not be

explained—the decision itself is enough.” Gherardi, 975 F.3d at 1237. At the same time, “an arbitrator

may not ignore the plain language of the contract. . . . [A]n arbitrator may not issue an award that

contradicts the express language of the agreement. It also means that an arbitrator may not modify

clear and unambiguous contract terms.” Wiregrass Metal, 837 F.3d at 1088 (cleaned up). Put another

way, an arbitrator cannot issue “an award that ‘simply reflects his own notions of economic justice’

rather than ‘drawing its essence from the contract[.]’” Sutter, 569 U.S. at 569 (quoting E. Associated

Coal, 531 U.S. at 62).

The upshot of all this is that an arbitration panel acts within the scope of its authority when it

interprets a contract (rightly or wrongly)—but it exceeds its authority when it modifies or ignores the

contract’s language. See ibid. (“So the sole question for us is whether the arbitrator (even arguably)

interpreted the parties’ contract, not whether he got its meaning right or wrong.”); Wiregrass Metals,

837 F.3d at 1088 (“The outcome in this case depends on whether we characterize the arbitrator’s

decision as an interpretation of the collective bargaining agreement or a modification of it.”).

Magistrate Judge Lett rejected all three of BDO arguments “suggesting that the [P]anel

exceeded its authority.” R&R at 6. First, BDO argued that the Panel “improperly modified the terms

of the parties’ Partnership Agreement that grants the Board authority and discretion to terminate

Bakhai’s partnership interest for cause.” Motion to Vacate at 10. Magistrate Judge Lett found that this

“argument is not well-taken” because the Panel explicitly determined that “the [Partnership

Agreement] was devoid of” the sort of “deferential language” that would require it to “defer[ ] to

corporate decisions made in good faith.” R&R at 8 (citing Initial Award at 7). BDO says that Magistrate

Judge Lett “erred in concluding that the Partnership Agreement must contain the exact language

referenced by the majority of the Panel, as opposed to determining that the plain contract language

itself afforded ultimate discretion to the Board to make termination decisions.” Id. at 14. And this

error, BDO insists, caused the Panel to “improperly modif[y] the terms of the parties’ Partnership

Agreement[.]” Ibid.

Notwithstanding BDO’s deliberate use of the term “modified,” this objection really boils

down to BDO’s dissatisfaction with how the Panel interpreted the Partnership Agreement. The Panel

found that the Partnership Agreement “simply says that a partner’s interest may be terminated ‘for

cause’ by a vote of 75% of the board” and that Bakhai “did not contract to give the BDO board final,

binding authority or sole and absolute discretion in determining if there was cause to terminate his

partnership interest.” Initial Award at 7; see also Partnership Agreement § 11.4 (“The Board of

Directors, by the affirmative vote of at least seventy-five percent (75%) of the total number of its

members in office at the time eligible to vote on the proposal, may for cause (as defined in Section

11.5) terminate the interest in the Partnership of any Partner at any time.”). BDO says that both the

Panel and Magistrate Judge Lett improperly ignored “the express language in Section 11.5,” which

“defines each case where ‘cause’ entitled the Board to terminate Bakhai’s interest to be ‘in the

determination of the Board of Directors.’” BDO Objections at 14 (quoting Partnership Agreement §

11.5). But this quibbling match over how the Panel should have interpreted the interplay between §

11.4 and § 11.5 of the Partnership Agreement—and whether the Partnership Agreement’s language

required significant deference to BDO’s board—is precisely the type of alleged error we can’t (and

won’t) second guess. See Sutter, 569 U.S. at 569 (“Because the parties ‘bargained for the arbitrator’s

construction of their agreement,’ an arbitral decision ‘even arguably construing or applying the

contract’ must stand, regardless of a court’s view of its (de)merits.” (quoting E. Associated Coal, 531

U.S. at 62)); Hidroelectrica Santa Rita S.A. v. Corporacion AIC, S.A., 119 F.4th 920, 928 (11th Cir. 2024)

(“Even if we were to accept that this interpretation is a misreading of the contract, a court should not

reject an award on the ground that the arbitrator misread the contract. That is because an arbitrator

does not exceed his power when he makes errors.” (cleaned up)).

Second, BDO claimed that “once the [P]anel determined the business judgment rule was

inapplicable, the panel ‘improperly imposed its own view of what the law should be.’” R&R at 6

(quoting Motion to Vacate at 8). Magistrate Judge Lett rejected this argument, too, noting that “neither

an ‘incorrect legal conclusion’ nor a ‘manifest disregard of the law’ is recognized ‘as grounds for

vacating or modifying’ an award.” Id. at 7 (quoting S. Comm. Servs., Inc. v. Thomas, 720 F.3d 1352, 1360

(11th Cir. 2013)). BDO says that Magistrate Judge Lett’s conclusion here “misses the mark.” BDO

Objections at 16. In its view, the issue isn’t whether “the majority of the Panel exceeded its authority

‘by concluding that the business judgment rule did not apply[,]’”; instead, BDO says, the issue is

Magistrate Judge Lett’s failure to recognize that the Panel didn’t “identify[ ] and apply[ ] the proper

legal standard for determining ‘cause’ under the parties’ Partnership Agreement.” Ibid. The Panel

found that (if Delaware’s Business Judgment Rule doesn’t apply) the proper legal standard is “whether

the preponderance of the evidence demonstrates that the Respondent had cause, as defined in the

contract, to terminate Bakhai’s partnership interest.” Initial Award at 7. BDO accuses the Panel of

“manufactur[ing] [this] standard of review—without any supporting case law—based on hypothetical

scenarios involving landlord-tenant situations that are irrelevant to this case.” Ibid.

We see no flaw in Magistrate Judge Lett’s reasoning. She correctly observed that an arbitrator

doesn’t exceed his authority even if he makes “incorrect legal conclusion[s]” and engages in a “manifest

disregard of the law[.]” S. Comm. Servs., 720 F.3d at 1360; see also DIRECTV, LLC v. Arndt, 546 F.

App’x 836, 841 (11th Cir. 2013) (“The arbitrator’s award may have been ugly, and could have been

mistaken, incorrect, or in manifest disregard of the law, but those are not grounds for vacating the

award under § 10(a)(4).”). If the Panel indeed “manufactured a standard of review” that finds no

support under Delaware law, that would be a legal error. Cf. Blake v. U.S. Att’y Gen., 945 F.3d 1175,

1179 (11th Cir. 2019) (describing “applying the wrong legal standard” as a “legal error[ ]”). And, while

that would be unfortunate, “courts ‘do not review the arbitrator’s award for underlying legal error.’”

Mendez v. T-Mobile USA Inc., 746 F. Supp. 3d 1377, 1381 (S.D. Fla. 2024) (Altonaga, C.J.) (quoting

Fowler v. Ritz-Carlton Hotel Co., LLC, 579 F. App’x 693, 699 (11th Cir. 2014)). We therefore agree with

Magistrate Judge Lett that the Panel “did not exceed its authority by concluding that the business

judgment rule did not apply.” R&R at 7.4

Third, BDO claimed that the Award was tainted by “contradictory findings.” Id. at 8. BDO

believed “that by accepting the testimony regarding Bakhai’s poor performance, the panel concedes

that there was indeed cause to terminate Bakhai under section 11.5 of the [Partnership Agreement].”

Id. at 9. Magistrate Judge Lett rejected this argument for two reasons: one, because the “scope of the

arbitration proceeding was limited to BDO’s [two] specific grounds for termination”—which didn’t

include Bakhai’s allegedly “poor performance”; and second, because Bakhai would have become an “at-

will employee” on July 1, 2023, so the witness’s testimony that Bakhai would’ve been terminated for

poor performance later was irrelevant, since “BDO needed cause to terminate Bakhai in January 2023.”

Ibid. BDO weakly repeats this same argument in its Objections to us—without explaining how

Magistrate Judge Lett erred. See BDO Objections at 17–18 (“It is therefore inconsistent for the

majority to have ruled in Bakhai’s favor, while simultaneously accepting that the definition of ‘cause’

in subparagraph (e) of Section 11.5 of the Partnership Agreement includes ‘[a] Partner’s material failure

to perform his/her duties or make continued, material economic contributions to the Partnership to

an extent that such Partner no longer deserves to remain a Partner.’ There is no way to reconcile these

contradictory findings. Nor does the R&R try to reconcile them.”).

4 In any event, Bakhai persuasively argues that “the Panel correctly interpreted the law” because,

“[u]nder Delaware law . . . where an employee may only be terminated for cause, the employer must

prove that cause actually existed.” Response to BDO Objections at 15 & n.14 (citing Haney v. Lamb,

312 A.2d 330, 335 (Del. Super. Ct. 1973)); see also E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 47 (2025)

(“The usual standard of proof in civil litigation is preponderance of the evidence.”). The Panel’s

reliance on the “preponderance of the evidence” standard thus doesn’t appear to constitute an

incorrect legal conclusion—much less a manifest disregard of the law.

Magistrate Judge Lett is exactly right. Bakhai wasn’t terminated for “poor performance”; he

was fired for “leak[ing] confidential firm information to a BDO client and his legal team” and for

“intentionally disregarding directions to discharge a client who had sexually harassed a BDO

employee.” Initial Award at 3. That the Panel found Bakhai’s “poor performance” justified a reduction

of his “lost salary claim” doesn’t contradict (or undermine) its holding that BDO’s proffered reasons

for firing Bakhai—which, again, had nothing to do with his “poor performance”—didn’t amount to

“cause” under the Partnership Agreement’s terms. Id. at 26; see also R&R at 9 (“The panel did not

evaluate whether there was cause in January 2023 based on Bakhai’s seemingly ‘poor performance,’

and BDO cannot now assert such grounds for the first time under the guise of ‘contradictory

findings.’”). And BDO’s conclusory refrain that these findings are somehow “contradictory” doesn’t

strike us as a legally sufficient objection to the R&R. See Tardon, 493 F. Supp. 3d at 1209 (“Frivolous,

conclusive, or general objections need not be considered by the district court.”).

Magistrate Judge Lett, in short, properly concluded that the Panel didn’t exceed its authority in

violation of 9 U.S.C. § 10(a)(4). We therefore OVERRULE BDO’s first objection.

II. The Panel Reasonably Limited Evidence

In its second objection, BDO contends that Magistrate Judge Lett “erred in concluding that

the [Panel] had a reasonable basis for preventing BDO from presenting pertinent, material evidence.”

BDO Objections at 18. BDO had argued in its Motion to Vacate that “it was prejudiced from

presenting material evidence of (1) BDO’s investigation into Bakhai’s misconduct; and (2) Bakhai’s

disclosure of confidential information.” R&R at 10 (citing Motion to Vacate at 13–17). Magistrate

Judge Lett found that the Panel reasonably limited this evidence, and that these limitations didn’t

prejudice BDO.

Starting with “the evidence regarding Bakhai’s termination,” Magistrate Judge Lett explained

that “an exhibit summarizing the purported grounds for Bakhai’s termination” was reasonably

excluded as hearsay, and that the pertinent witness was still able to testify “about what she was told

and what was communicated to the Board, while still using the document to refresh her memory as

needed.” Id. at 10–11. As for the “evidence of Bakhai’s alleged disclosure of confidential

information[,]” Magistrate Judge Lett concluded that it wasn’t “unreasonable [for] the panel [to

choose] to limit the additional circumstantial evidence considering the credible and more convincing

evidence presented by Bakhai.” Id. at 12. BDO maintains that these evidentiary limitations “prejudiced

BDO’s right to receive a fundamentally fair hearing.” BDO Objections at 21.

A district court may vacate an arbitration award if “the arbitrators were guilty of misconduct

in refusing . . . to hear evidence pertinent and material to the controversy[.]” 9 U.S.C. § 10(a)(3).

“Arbitrators ‘enjoy wide latitude in conducting an arbitration hearing,’ and they ‘are not constrained

by formal rules of procedure or evidence.’” Rosensweig v. Morgan Stanley & Co., Inc., 494 F.3d 1328, 1333

(11th Cir. 2007) (quoting Robbins v. Day, 954 F.2d 679, 685 (11th Cir. 1992)). An arbitrator needn’t

“consider all evidence the parties seek to introduce but may reject evidence that is cumulative or

irrelevant.” Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1017 (11th Cir. 1998). “[A] federal court may

vacate an arbitrator’s award only if the arbitrator’s refusal to hear pertinent and material evidence

prejudices the rights of the parties to the arbitration proceedings.” Rosensweig, 494 F.3d at 1333 (cleaned

up). Although the Eleventh Circuit hasn’t specifically defined what constitutes “prejudice” in this

context, it has found prejudice when the arbitrator’s evidentiary ruling “entirely prevents a party from

presenting a key witness’ material, noncumulative testimony.” CM S. E. Tex. Houston, LLC v.

CareMinders Home Care, Inc., 662 F. App’x 701, 704 (11th Cir. 2016) (emphasis added) (citing Tempo

Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20–21 (2d Cir. 1997)). That said, “this subsection does not

warrant vacatur where an arbitrator merely made an erroneous discovery or evidentiary ruling; rather,

a plaintiff must show that the arbitrator’s handling of these matters was in bad faith or so gross as to

amount to affirmative misconduct[.]” Pochat v. Lynch, 2013 WL 4496548, at *10 (S.D. Fla. Aug. 22,

2013) (Rosenbaum, J.) (citing United Paperworkers Int’l Union AFL-CIO v. Misco, Inc., 484 U.S. 29, 40

(1987)).

The bulk of BDO’s second objection focuses on the Panel’s alleged “refusal to admit evidence

that Bakhai spoliated evidence of his guilt.” BDO Objections at 18. According to BDO, Magistrate

Judge Lett failed to recognize that “BDO was precluded from presenting any fact or expert testimonial

evidence demonstrating Bakhai’s guilty conduct—his deletion of evidence regarding his disclosure of

confidential information in violation of his BDO Partnership Agreement.” Id. at 19. We agree with

Bakhai that this argument reflects a “misrepresentation of the record, and a fantasy of BDO’s

imagination.” Response to BDO Objections at 18.

BDO was permitted to present an extraction report of Bakhai’s cell phone, see Extraction

Report [ECF No. 26-11], and (as Magistrate Judge Lett correctly noted) the Panel explicitly considered

the fact that “the record of calls and text messages on Bakhai’s cell phone in the weeks prior to the

complaint being filed were deleted (implying a cover-up).” Initial Award at 15. Despite this evidence,

a majority of the Panel found “Bakhai’s explanation or response to this circumstantial evidence” more

credible than BDO’s spoliation theory. Ibid. While BDO may disagree with this conclusion, the Panel

was well within its discretion to believe Bakhai over BDO’s circumstantial evidence. See Aegis Cap.

Corp. v. Cohen, 2019 WL 7168305, at *2 (S.D. Fla. Dec. 24, 2019) (Gayles, J.) (“But the Court may not

vacate an award because a party disagrees with a panel’s evidentiary decisions. . . . Merely stating that

the panel ‘disregarded’ Cohen’s evidence does not, without more, demonstrate prejudice.”).

As for BDO’s belief that the Panel prevented it from “proffer[ing] expert testimony on the

critical issue of spoliation,” BDO Objections at 19, Bakhai is right that BDO “never listed or identified

any expert” at all, Response to BDO Objections at 18; see generally BDO’s Amended Witness and

Exhibit List [ECF No. 36-10]. We won’t allow BDO to claim prejudice at this late stage of the game

when it failed, before the arbitral Panel, to list (or even identify) the evidence it now says it should’ve

been required to present. See Floridians for Solar Choice, 314 F. Supp. 3d at 1359 (“[W]hen a party

challenges an evidentiary decision of the arbitration panel, a federal court may vacate the award only

if the arbitrator’s refusal to hear pertinent and material evidence prejudiced the rights of the parties to

the arbitration proceedings[.]” (citing Rosensweig, 494 F.3d at 1333)).

In the remaining part of this objection, BDO says that Magistrate Judge Lett “failed to consider

the Panel’s [refusal to admit evidence regarding BDO’s investigation of Bakhai’s misconduct] in the

context of what occurred at the hearing[.]” BDO Objections at 20. Here, BDO argues that both the

Panel and Magistrate Judge Lett ignored Bakhai’s “gamesmanship”—which prevented BDO from

introducing the exhibit in question. See ibid. (“Bakhai had the same document on his own exhibit list,

agreed to pre-admit it into evidence without objection, and then abandoned his agreement and

objected to its admission mere hours before the start of the final hearing. The Panel allowed him to

engage in this gamesmanship and refused to allow BDO to admit the exhibit into evidence.”). BDO

also complains that it could have overcome this “gamesmanship” if “the Panel had not required that

the final hearing be completed in five days [and] had not limited BDO’s time to less than 20 hours[.]”

Ibid.

Even assuming that Bakhai engaged in “gamesmanship,” BDO’s argument ignores Magistrate

Judge Lett’s reasoning. See R&R at 11 (“The particular document was drafted by BDO’s counsel and

prepared for BDO’s corporate representative’s 30(b)(6) deposition. During arbitration, the

representative testified that she did not prepare the specific document, but she relied on the document

in preparation of her deposition. Counsel for Bakhai objected to the summary being entered into

evidence on hearsay grounds. The panel reasonably sustained the objection and limited the evidence

reasoning that the document was offered to corroborate testimony concerning information BDO

insists was presented to the Board at the time Bakhai was terminated. In other words, the document

was an out-of-court statement offered ‘to be the truth of’ what was presented to the panel.” (cleaned

up) (citing July 11, 2025, Hr’g Tr. [ECF No. 36-4] at 52)). BDO doesn’t dispute Judge Lett’s

determination that this exhibit constituted inadmissible hearsay. Nor does BDO disagree that a witness

was allowed to testify “about what she was told and what was communicated to the Board, while using

the document to refresh her memory as needed.” R&R at 11; see also Jones v. UPS Ground Freight, 683

F.3d 1283, 1294 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to

admissible form is to have the hearsay declarant testify directly to the matter at trial.”). Despite BDO’s

complaints about “gamesmanship” and the Panel’s time limits, in other words, Magistrate Judge Lett

rightly found that BDO got the chance to present this evidence about the Board’s investigation into

Bakhai’s alleged misconduct. See Initial Award at 20 (“In sum, we understand that BDO may have

been suspicious of Bakhai based on the circumstantial evidence it had.”). That the Panel didn’t grant

BDO carte blanche to present hearsay evidence (without limitation) wasn’t prejudicial and isn’t

grounds for vacatur. See Scott, 141 F.3d at 1017 (“An arbitrator need not consider all the evidence the

parties seek to introduce but may reject evidence that is cumulative or irrelevant.”).

Magistrate Judge Lett properly found that the Panel’s decision to limit evidence about BDO’s

investigation and Bakhai’s alleged spoliation was reasonable. See Rosensweig, 494 F.3d at 1333 (“[W]e

inquire whether there was any reasonable basis for [the arbitrator’s] decision [to limit evidence].”). =

BDO, therefore, wasn’t prejudiced by these evidentiary rulings, and the Panel didn’t commit any

misconduct under § 10(a)(3). BDO’s second objection is OVERRULED.

III. The Alleged Fraud Was Immaterial

BDO’s third objection (and Bakhai’s sole objection) concern the same issue: whether “the

Award was procured by fraud due to perjured testimony from Desiree Perez—a witness proffered by

Bakhai in his affirmative case.” R&R at 13. Magistrate Judge Lett found that BDO “[fell] just short of

satisfying all three elements to require vacatur based on fraud.” Ibid. Magistrate Judge Lett agreed both

that Perez gave false testimony, see id. at 13–14 (“Ms. Perez testified that she only spoke to Mr.

Schwiep, counsel for Bakhai, once before her May 15, 2024 deposition, which was false.”), and that

the falsity of Perez’s testimony couldn’t have been discovered earlier, see id. at 14 (“The perjured

testimony was only discovered post-arbitration when Bakhai submitted a request for fees. Otherwise,

BDO did not have a need to review Bakhai’s time records, and therefore, would not have discovered

the discrepancy in Ms. Perez’s testimony prior to or during the arbitration.”). But, Magistrate Judge

Lett continued, Perez’s false testimony wasn’t “materially related to an issue in the arbitration”

because: (1) “Ms. Perez’s preparation for her deposition is a tangential issue to whether Bakhai indeed

disclosed the confidential information”; and (2) “Ms. Perez was not the sole witness who

unequivocally stated Bakhai was not the source of the confidential information.” Id. at 14–15.

Both sides take issue with different portions of Magistrate Judge Lett’s recommendation.

Bakhai disagrees that Perez’s testimony was perjurious because “[t]here is simply no support for the

conclusion that Ms. Perez willfully lied in mis-recalling that a conversation occurred longer than one

week prior to her deposition.” Bakhai Objections at 4. BDO, on the other hand, insists that Perez’s

false testimony was material because her credibility was (BDO believes) crucial to the Panel’s ultimate

decision. See BDO Objections at 11–12 (“Contrary to the R&R’s finding, the impact of the fraud was

material because it persuaded the majority that Perez was a credible, independent, and uninterested

witness. . . . Had the majority learned about Perez’s fabricated testimony and Bakhai’s counsel’s

perpetuation of it during the hearing or before issuing the Interim Award, the majority likely would

have deemed Perez’s other testimony (which was heavily relied upon) as fruit-from-the-poisonous tree

and concluded, as the dissent did, that Perez was not a credible witness and that her testimony was

not entitled to any weight[.]” (cleaned up)).

“A district court ‘may,’ in its discretion, vacate an arbitration award ‘upon the application of

any part to the arbitration’ if ‘the award was procured by corruption, fraud, or undue means.’”

NuVasive, Inc. v. Absolute Med., LLC, 71 F.4th 861, 878 (11th Cir. 2023) (quoting 9 U.S.C. § 10(a)(1)).

“[C]ourts have relied upon a three part test to determine whether an arbitration award should be

vacated for fraud. First, the movant must establish the fraud by clear and convincing evidence. Second,

the fraud must not have been discoverable upon the exercise of due diligence prior to or during the

arbitration. Third, the person seeking to vacate the award must demonstrate that the fraud materially

related to an issue in the arbitration.” Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1375, 1383 (11th Cir.

1988) (cleaned up); see also NuVasive, 71 F.4th at 878 (same). Although the movant isn’t required “to

establish that the result of the proceeding would have been different had the fraud not occurred[,]”

Bonar, 835 F.2d at 1383, it must show that the allegedly fraudulent conduct “prevented [it] from fully

and fairly presenting [its] case[,]” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000).5

We’ll start with Bakhai’s “limited objection” to Magistrate Judge Lett’s finding that “there was

evidence of ‘perjured testimony’ by a nonparty witness.” Bakhai Objections at 1. Bakhai concedes that

Perez incorrectly testified that she had only spoken with Mr. Schwiep (Bakhai’s counsel) once before

her deposition. See id. at 3 (“Attorney time records, however, reflect Ms. Perez spoke to Bakhai’s

counsel on April 12, May 1, and May 9.”). Still, Bakhai argues that this incorrect testimony can’t (strictly

speaking) be considered “perjury” because “there [isn’t] any evidence of a willful intent to deceive.”

Ibid.; see also United States v. Cavallo, 790 F.3d 1202, 1220 (11th Cir. 2015) (“[P]erjury is testimony given

with the willful intent to provide false testimony and not as a result of a mistake, confusion, or faulty

memory.”). In Bakhai’s view, then, Magistrate Judge Lett’s decision to characterize Perez’s false

statement as perjury “unfairly and improperly impugns the integrity and character of a prominent

5 The “fully and fairly” standard comes from FED. R. CIV. P. 60(b)(3), which “allows a court to grant

relief from a final judgment if the moving party proves by clear and convincing evidence that an

adverse party has obtained the verdict through fraud, misrepresentation, or other misconduct.”

Frederick, 205 F.3d at 1287. The Eleventh Circuit has held that “[t]he standard for determining whether

a party should be relieved of a final judgment under 60(b)(3) is nearly identical to the standard for

determining whether an award should be vacated for fraud under § 10(a).” Bonar, 835 F.2d at 1383

n.8.

nonparty witness, with potential far-reaching ramifications unrelated to this case.” Bakhai Objections

at 1.

We’ll sustain Bakhai’s limited objection. We agree with both BDO and Magistrate Judge Lett

that Perez falsely testified about how many times she met with Bakhai’s attorney before her deposition.

See R&R at 13–14 (“Ms. Perez testified that she only spoke to Mr. Schwiep, counsel for Bakhai, once

before her May 15, 2024 deposition, which was false.”); Response to Bakhai Objections at 2 (“Bakhai’s

attorneys’ time records reveal that Perez did not have just one short call with Mr. Schwiep a week

before her deposition to discuss logistics, as she testified.”). But factually incorrect testimony isn’t

necessarily perjurious. To constitute perjury, the false statement must “concern[ ] a material matter,”

and it must have been made “with the willful intent to provide false testimony.” United States v. Singer,

963 F.3d 1144, 1164 (11th Cir. 2020) (cleaned up). Magistrate Judge Lett acknowledged that Perez’s

statement wasn’t material. See R&R at 14 (“BDO does not demonstrate that Ms. Perez’s perjured

testimony materially related to an issue in the arbitration.”); see also post, at 22–24 (discussing the

materiality of Perez’s testimony). And BDO hasn’t presented any evidence (let alone clear and convincing

evidence) that Perez purposely lied about how many times she met with Bakhai’s counsel. Cf. Bonar, 835

F.2d at 1383 (“[T]he movant must establish the fraud by clear and convincing evidence.”). Since

Perez’s incorrect testimony lacks both these elements of perjury, we SUSTAIN Bakhai’s objection

and REJECT this aspect of the R&R.

In any event, Magistrate Judge Lett still reached the right conclusion overall because BDO

“did not demonstrate that the fraud was materially related to an issue in the arbitration whereby BDO

was deprived of a fair hearing.” R&R at 16. BDO maintains that Perez’s false statement was material

for two reasons. One, BDO claims that, “[i]f the Panel knew Perez perjured herself, it would have

discredited her and her testimony[.]” BDO Objections at 10–11. This finding would have been

catastrophic for Bakhai, BDO says, since the Panel relied on her testimony to find that Bakhai didn’t

leak confidential client information. See id. at 11 (“The only other witness who testified on this

subject—Alex Spiro—is Perez’s attorney, and he parroted what was learned from Perez and did not

have any independent knowledge as to who the source of the information was. While the R&R goes

on to say that the majority noted that there were other possible sources of information, these mere

possibilities would have fallen down like a house of cards if the Panel had discovered that Perez’s

testimony was a fraud.” (cleaned up)). Two, BDO contends that Perez’s decision to lie about how many

times she met with Bakhai’s counsel is evidence “that she and Bakhai were in cahoots” and that “she

had already been coached by Bakhai’s attorneys in advance of her deposition.” Id. at 11, 13.

We reject both arguments. Bakhai used Perez’s testimony to corroborate Bakhai’s denial—

which the Panel majority found credible standing alone. See Initial Ward at 20 (“We found the

Claimant’s denial that he was the source of the confidential information, as confirmed by the testimony

of Mr. Spiro and Ms. Perez, to be credible, and more convincing than the circumstantial evidence

presented to us.”).6 Relying on the Panel’s factual findings, Magistrate Judge Lett concluded that

“BDO was not deprived of a fair hearing since the Panel considered several other factors and did not

base its decision solely on perjured, tangentially related testimony.” R&R at 15. In its only response to

this straightforward conclusion, BDO speculates about what the Panel might have done and then—

without evidence—accuses Bakhai and his lawyers of conspiring with Perez to intentionally deceive

the Panel. See BDO Objections at 11–12 (“Had the majority learned about Perez’s fabricated testimony

6 Referencing a portion of the arbitration transcript, BDO says that Alex Spiro’s testimony is

effectively useless since he “is Perez’s attorney, and he parroted what was learned from Perez and did

not have any independent knowledge as to who the source of the information was.” BDO Objections

at 11 (citing July 17, 2024, Hr’g Tr. [ECF No. 36-6] at 11). But the transcript doesn’t support this

position. On the contrary, Spiro didn’t mention Perez at all. Instead, he explained that neither he nor

his associates received the confidential client information from Bakhai. See July 17, 2024, Hr’g Tr. at

11 (“[Spiro]: I can tell you directly the answer I keep telling you, which is that Mr. Bakhai did not

provide this information to me or the attorneys working with me.”). What Spiro admitted is that “it

[is] possible that somebody else that provided me information got information from Mr. Bakhai[.]”

Ibid. Either way, the record doesn’t support BDO’s contention that Spiro merely regurgitated Perez’s

testimony.

and Bakhai’s counsel’s perpetuation of it during the hearing or before issuing the Interim Award, the

majority likely would have deemed Perez’s other testimony (which was heavily relied upon) as fruit-

from-the-poisonous tree and concluded, as the dissent did, that Perez was not a credible witness and

that her testimony was not entitled to any weight[.]” (cleaned up)). But “vague, remote, and speculative

charges . . . cannot support an order to vacate an arbitration award.” Scott, 141 F.3d at 1015.

BDO also cites two Eleventh Circuit cases, Bonar and NuVasive, for its view that “the

disclosure of Perez’s testimony . . . could have reversed the entire decision in BDO’s favor,” BDO

Objections at 13—but neither case applies on our facts. In Bonar, the Eleventh Circuit found fraud

because an expert witness “committed perjury by falsifying his credentials” and because it concluded

that, if the expert had been truthful, “it is extremely doubtful that he would have been permitted to

testify as an expert, and the arbitrators would have heard none of [his] testimony.” 835 F.2d at 1385.

BDO concedes that Perez’s false statement wouldn’t have “kept her from testifying,” BDO Objections

at 11, so Bonar is simply inapposite here.

NuVasive involved a lawyer who told a witness how to answer while he was being cross-

examined. See 71 F.4th at 878 (“NuVasive established by clear and convincing evidence that Hawley

was reading Soufleris’s messages in real-time while Hawley was testifying and conforming his

testimony to Soufleris’s messages.” (cleaned up)). The Eleventh Circuit found that this fraudulent act

warranted vacatur, even though the testimony “had no impact on the arbitration panel,” because “the

Final Award was based on a failure of proof as to loss causation and the amount of damages, not the

subject matter of [the witness’s] testimony.” Id. at 879. NuVasive isn’t relevant here for two reasons:

first, because Perez’s false testimony wasn’t “materially related to an issue in the arbitration[,]” Bonar,

835 F.2d at 1383; and second, BDO has no evidence that Bakhai and Perez conspired to defraud the Panel.

Although BDO showed that Perez may have made a misstatement during the arbitration

proceedings, Magistrate Judge Lett correctly found that this false statement wasn’t material and that

the Initial Award wasn’t procured through fraud. In short, “[BDO’s] challenge—cloaked in the

nomenclature of fraud—amounts to no more than vehement disagreement with the Arbitrator’s

findings on the breach of contract claim.” Floridians for Solar Choice, 314 F. Supp. 3d at 1355. BDO’s

third objection is therefore OVERRULED.

IV. The Post-Judgment Interest Rate

BDO’s final objection is “that the post-judgment interest rate applied to any judgment in favor

of Bakhai should be consistent with 28 U.S.C. § 1961.” BDO Objections at 21. The Panel held that

Bakhai’s damages “shall accrue interest from the date hereof at the rate of 10.5% annum pursuant to

[DEL. CODE tit. 6 § 2301(a)].” Initial Award at 27–28. BDO would have us effectively rewrite this part

of the Initial Award and replace the 10.5% interest rate with the post-judgment interest rate set by 28

U.S.C. § 1961. Although Magistrate Judge Lett’s R&R didn’t reach this issue, see generally R&R, we

nevertheless overrule this objection on de novo review because it is legally meritless.

We cannot vacate, modify, or correct an arbitration award outside of the narrow circumstances

Congress laid out in Sections 10 and 11 of the FAA. See Frazier, 604 F.3d at 1321 (“Section 9 of the

FAA provides that, upon application of any party to the arbitration, the court must confirm the

arbitrator’s award unless it is vacated, modified, or corrected in accordance with sections 10 and 11 of

the statute.”). BDO has cited no authority for its view that 28 U.S.C. § 1961 supersedes a post-

judgment interest rate awarded by an arbitration panel. See BDO Objections at 21. And that’s probably

because all the cases on this issue say precisely the opposite. See Mid Atl. Cap. Corp. v. Bien, 956 F.3d

1182, 1208–09 (10th Cir. 2020) (“[T]he federal postjudgment interest rate in 28 U.S.C. § 1961 applies

unless . . . the parties put the postjudgment-interest issue before the arbitration panel and the panel

similarly awards postjudgment interest clearly and unequivocally, then the awarded rate applies.” (first

emphasis added)); Tricon Energy Ltd. v. Vinmar Int’l. Ltd., 718 F.3d 448, 458 (5th Cir. 2013) (“[I]nsofar

as an arbitration panel sets a postjudgment rate as a matter of contract interpretation, its award is

entitled to almost absolute deference.”).7 Since the law refutes BDO’s position that “the post-

judgment interest rate applied to any judgment in favor of Bakhai should be consistent with 28 U.S.C.

§ 1961[,]” BDO Objections at 21, we OVERRULE BDO’s final objection.

* * *

Magistrate Judge Lett concluded her R&R by “finding that none of the exclusive statutory

grounds to vacate an arbitration award apply[.]” R&R at 16. We likewise find that BDO hasn’t justified

vacatur of the Panel’s arbitration award under any of § 10(a)’s four statutory exceptions. Without a

valid reason to vacate, we “must confirm the arbitrator’s award[.]” Frazier, 604 F.3d at 1321.

CONCLUSION

Having conducted a careful, de novo review of the R&R, the record, the pleadings, and the

applicable law, we ORDER AND ADJUDGE as follows:

1. Magistrate Judge Lett’s R&R [ECF No. 75] is ADOPTED in part and REJECTED in part.

Bakhai’s Objection [ECF No. 76] is SUSTAINED as to Magistrate Judge Lett’s finding that

Perez committed perjury. BDO’s Objections [ECF No. 80] are OVERRULED.

2. Bakhai’s Petition to Confirm Arbitration Award [ECF No. 1] and his Motion to Confirm Final

Award [ECF No. 40] are GRANTED.

3. BDO’s Motion to Vacate Arbitration Award [ECF No. 23] is DENIED.

4. All other pending motions are DENIED as moot and any pending deadlines and hearings

are TERMINATED. The Clerk shall CLOSE the case.

5. We’ll issue final judgment under Rule 58 separately.

7 And that makes sense. Otherwise, the losing party in an arbitration proceeding could automatically

reduce the unfavorable post-judgment interest rate set by the arbitration panel to the rate under 28

U.S.C. § 1961 by merely filing a motion to vacate the arbitration award—even if the motion is

completely frivolous.

DONE AND ORDERED in the Southern District of “aC

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

CC: counsel of record

27