Hall Street Associates, L.L.C. v. Mattel Inc.

MEMORANDUM **

Our en banc decision in Kyocera Corp. v. Prudential-Bache Trade Services, Inc. 1 controls this case. Under Kyocera the *273 terms of the arbitration agreement controlling the mode of judicial review are unenforceable and severable. 2 The evidence that the parties intended that the entire arbitration agreement should fail in the event that the expanded standard of review provision failed is not strong enough to distinguish this case from Kyocera.

Kyocera compels us to vacate the district court’s judgment based on the arbitration agreement and remand to the district court. 3 On remand the district court shall return to the application to confirm the original arbitration award (not the subsequent award revised after reversal), and shall confirm that award, unless the district court determines that the award should be vacated on the grounds allowable under 9 U.S.C. § 10 , or modified or corrected under the grounds allowable under 9 U.S.C. § 11 .

Because we vacate the judgment based on the arbitration agreement we need not reach the attorneys’ fees issue.

We affirm the district court’s separate finding that Mattel was within its rights in terminating the lease.…