Case Type: Other Civil __________________________________________________________________________________ SEAGATE TECHNOLOGY, LLC, Plaintiff, v. WESTERN DIGITAL CORPORATION, and WESTERN DIGITAL TECHNOLOGIES, INC., DR. SINING MAO, Defendants.
File No. 27-CV-06-19000 Hon. Janet N. Poston
MEMORANDUM OF LAW IN SUPPORT OF WESTERN DIGITALS PETITION TO VACATE AN ARBITRATION AWARD Petitioners Western Digital Corporation and Western Digital Technologies, Inc. (collectively Western Digital) submit this memorandum of law in support of their petition to vacate an arbitration award issued by the Arbitrator in Dr. Sining Mao, et al. v. Seagate Technology, LLC, AAA No. 65 160 00129 07 (the Award). Also in support of the petition are a Notice of Motion; the Affidavit of Michael D. Schissel, Esq. attaching, among other things, the Award (Exhibit A) and materials from the arbitration; and the Affidavit of Gregory B. Joseph, Esq. 1
PRELIMINARY STATEMENT Western Digital respectfully petitions to vacate the unprecedented $630,431,501 Award in this trade secrets case. As a sanction for a co-defendants fabrication of evidence, the Arbitrator refused to consider any of Western Digitals defenses or evidence refuting Seagates claims that Western Digital misappropriated three of Seagates alleged trade secrets (Trade Secrets 4-6) and issued an award in Seagates favor on those claims. This refusal deprived the company of a fundamentally fair proceeding. The Award which is not based on the merits of the dispute is apparently five times larger than any sanction ever imposed by any American tribunal, whether in court or in an arbitration. This sanction was designed not to protect Seagate from the consequences of the co-defendants
1 WD Ex. __ refers to Western Digital exhibits admitted in the arbitration and Vol. __ refers to testimony at the arbitration, all of which is attached to the Schissel Affidavit. misconduct, or to deter future misconduct, but could have been intended only to punish. The Arbitrator found that Dr. Sining Mao? a Western Digital employee and co-defendant, fabricated three PowerPoint slides that Western Digital offered to show that Dr. Mao publicly presented the slides at conferences while still employed at Seagate, thereby illustrating that Trade Secrets 4-6 were not in fact secret. Although Western Digital strongly disagrees with the finding that Dr. Mao fabricated evidence, the company does not ask this Court to reweigh the evidence on that issue or to set aside that finding. Nor does Western Digital endorse, minimize, or excuse any fabrication of evidence. Western Digital's objection to the Award is with the imposition of over a half billion dollars in liability as a sanction, despite an abundance of evidence supporting Western Digital's defenses, when other sanctions were available that would have purged the arbitration of any fabricated evidence and protected Seagate from any harm or disadvantage from the wrongdoing. The Arbitrator imposed a non-remedial, extreme, and punitive sanction that deprived Western Digital-which was not found to have played any role in the alleged fabrication-of the right to present its defenses to Trade Secret Claims 4-6. The Award grossly exceeded the Arbitrator's powers and violated the Arbitrator's basic obligation to consider material evidence. The Arbitrator refused not only to consider the Power Point slides and all testimony of Dr. Mao, but all of Western Digital's other evidence, arguments, and defenses with respect to Trade Secret Claims 4-6. That other evidence was voluminous, highly probative, and could not possibly have been tainted by the alleged fabrication. The excluded evidence is both qualitatively and quantitatively staggering and includes the testimony of 22 fact and expert witnesses, public patent applications, and public scientific articles, journals, and presentations supporting Western Digital's defenses to Trade Secret Claims 4-6. Additionally, although Western Digital presented the three slides as part of its defense to Seagate's allegations of secrecy, the Arbitrator precluded Western Digital from defending the claims on any basis, including whether the company had even made use of Seagate's alleged trade secrets-a distinct issue to 2 which the three slides were irrelevant. The punitive refusal to consider Western Digital's entire defense is not a run-of-the-mill error made in the course of the proceeding. The Arbitrator went well beyond what could conceivably be justified as remedial, or even as necessary to punish and deter similar misconduct, especially for a co- defendant that had no role in the fabrication. Had the Arbitrator excluded the PowerPoint slides and all of Dr. Mao's testimony, entered a sanction such as attorneys' fees and costs, or adopted a rebuttable adverse inference, and arbitrated the merits of Trade Secret Claims 4-6, this Court would "not overturn [the] award merely because it disagree[d] with the arbitrator's decision on the merits." Cnty. of Hennepin v. Law Enforcement Labor Servs., Inc., Local No. 19,527 N.W.2d 821, 824 (Minn. 1995). The defect here, however, is far more fundamental: the Arbitrator failed to decide the case based on the evidence. That structural failing falls squarely within the statutory grounds for vacatur of an arbitral award under the Minnesota Uniform Arbitration Act ("MAA"). That law requires vacatur here because (1) the Arbitrator "exceeded [his] powers" (Minn. Stat. 572.19, subd. 1(3)), and there was "misconduct prejudicing the rights of [a] party" (id. 572.19, subd. 1(2)); and (2) the Arbitrator "refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 572.12, as to prejudice substantially the rights of a party" (id. 572.19, subd. 1(4)). The defect also warrants vacatur because the Award violates public policy. City of Brooklyn Ctr. v. Law Enforcement Labor Servs., Inc., 635 N.W.2d 236, 241 (Minn. Ct. App. 2001)_2 The above grounds for vacatur are essential to ensure a fair proceeding. While decisions of arbitrators are largely immune from judicial review for factual or legal errors, the "proper discharge of th[is] court's duty requires that it avoid a merely perfunctory approach to appeals of orders confirming arbitration awards." !d. at 244. "A reviewing court must independently determine the scope of the 2 The current MAA "do[es] not affect an action or proceeding commenced or right accrued before" August 1, 2011. Minn. Stat. 572B.30 (2011). Because this action commenced before August 1, 2011, we cite to the Act's earlier version. 3 arbitrator's authority de novo." Cnty. of Hennepin, 527 N.W.2d at 824; see also Kashner Davidson Sec. Corp. v. Mscisz, 531 F.3d 68, 74 (1st Cir. 2008) (vacating arbitral sanction award). In short, "courts owe no deference to an arbitrator who has failed to provide the parties with a full and fair hearing." Int 'l Union, United Mine Workers of Am. v. Marrowbone Dev. Co., 232 F.3d 383, 388 (4th Cir. 2000). The foundational underpinning of arbitration is that the arbitrator determine the merits of the dispute based on relevant evidence. Minnesota law guarantees parties to an arbitration the right to "be heard [and] to present evidence material to the controversy." Minn. Stat. 572.12. The Employment Rules of the American Arbitration Association ("AAA") governing this case state that the arbitrator "shall exercise [his] authority . . . to afford a full and equal opportunity to all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute." AAA Employment Rule 28 (emphasis added), Schissel Aff., Ex. 00. The Arbitrator found for Seagate on Trade Secret Claims 4-6 by refusing to consider any of Western Digital's evidence and defenses. This outright refusal to base his decision on the evidence and imposition of a non-remedial and case-dispositive sanction vastly exceeded the Arbitrator's powers and rendered the proceeding fundamentally unfair. The fact that the Award concerns hundreds of millions of dollars in liability, millions more in interest, and interest accruing at $1,212,368.30 per week highlights how far afield the Arbitrator strayed from his authority. Importantly, where the Arbitrator did consider material evidence on both sides, he entered a judgment in favor of Western Digital. For the remaining Trade Secret Claims 1-3, 7, and 8, the Arbitrator considered the evidence on Western Digital's defenses and ruled that Seagate's claims lacked merit because those alleged secrets were known publicly before Dr. Mao joined Western Digital. The Arbitrator relied on the very same types of evidence that he refused to consider with respect to Trade Secret Claims 4-6, such as public patent applications, public journals, and scientific articles. Western Digital respectfully requests vacatur of the Award for Trade Secret Claims 4-6 and 4 referral to an arbitrator for adjudication on the merits of those claims. In further support, Western Digital submits the Affidavit of Gregory B. Joseph, Esq., the country's leading expert on sanctions and arbitral power. His sanctions treatise has been cited in more than 100 federal and state court decisions. That Affidavit confirms that the Award is unprecedented and contrary to the rules of arbitration. FACTUAL BACKGROUND Western Digital is one of the world's leading producers of hard disk drives. www.wdc.com/en. Hard disk drives store and retrieve digital information (such as photographs, music, and documents) and are found in a variety of products including computers, external hard drives, and digital video recorders. A hard disk drive contains one or more rapidly rotating platter-like disks coated with magnetic material and a small magnetic head that moves above the surfaces of the disks to write data to the disks and conversely to read data from the disks. The small magnetic head is the technology at issue and is one of hundreds of components that comprise a hard disk drive. This dispute arose when in 2006 Western Digital hired Dr. Sining Mao from Seagate, a competing producer of hard disk drives. Dr. Mao is an engineer specializing in the physics of the magnetic head. After Dr. Mao announced he was joining Western Digital, Seagate filed suit in this Court against Dr. Mao and Western Digital under the Minnesota Uniform Trade Secrets Act. On June 19, 2007, Dr. Mao sought arbitration and asked this Court for a stay. Western Digital too sought arbitration because the claims against Dr. Mao were intertwined with the claims against Western Digital. On September 19, 2007, this Court ordered the parties to arbitrate Seagate's claims. On January 21, 2010, Seagate identified eight alleged trade secrets (Trade Secrets 1-8) that relate solely to the reader portion of the head. The particular reader head technology at issue is known as tunneling magnetoresistance ("TMR"). Trade Secrets 1-3, 7, and 8 are technical specifications and design rules for constructing TMR heads. Trade Secrets 4, 5, and 6 relate to general engineering concepts for the design and process requirements of the reader head. Seagate identified three 5 PowerPoint slides as Trade Secrets 4-6. The parties respectively referred to these slides as the "Six Clean Surfaces" slide (Trade Secret 4), the "Fishbone" slide (Trade Secret 5), and the "PM Design Rules" slide (Trade Secret 6) (collectively, the "Trade Secret Slides"), attached as Exhibit D to the Schissel Affidavit. Western Digital presented public sources and fact and expert witnesses to establish that the concepts were publicly known when Dr. Mao joined Western Digital; that the concepts had no independent economic value; and that Western Digital did not use Trade Secrets 4-6 in its products. THE AWARD The Arbitrator held 34 days of hearings from May 23 to July 11, 2011, in which 40 witnesses testified and the parties submitted hundreds of exhibits. On November 18, 2011, the Arbitrator issued his decision. With respect to Western Digital, the Arbitrator considered both sides' evidence concerning alleged Trade Secrets 1-3, 7, and 8 and found in favor of Western Digital (and Dr. Mao). The Arbitrator found that those five alleged Trade Secrets were known publicly before Dr. Mao joined Western Digital. The Arbitrator relied on evidence presented by Western Digital including public patent applications, public scientific journals, and public conference presentations. 13-14, 17, 20-21, 24, 27. 3 The Arbitrator refused to consider any of Western Digital's evidence with respect to Trade Secrets 4-6, however, including the same type of evidence the Arbitrator had just relied upon in ruling in favor of Western Digital on the other Trade Secrets. The Arbitrator considered evidence favorable only to Seagate and entered judgment against Western Digital. 54, 62, 70. During discovery, Dr. Mao maintained that while a Seagate employee he publicly presented the Trade Secret Slides at a 2003 Veeco conference and a 2005 DSI conference, and therefore that the concepts shown on the slides were not secret. Id. 30. In early 2010, Dr. Mao located thumb drives 3 The Arbitrator rejected Seagate's claim that Western Digital wrongfully induced Dr. Mao to disclose Seagate confidential information, documents or trade secrets. Award 89-91. The Arbitrator found that Dr. Mao breached his employment agreement with Seagate by soliciting a former Seagate employee to join Western Digital and by taking confidential documents, id. 73-87, but that Dr. Mao was not liable for breach of fiduciary duty. 88. 6 (small devices that store electronic documents) containing what he contended were the final presentations he gave at the conferences. !d. ,-r 40. The presentations on the thumb drives included three slides (the "Thumb Drive Slides") that were almost identical to Seagate's three Trade Secret Slides. The Arbitrator found that Dr. Mao fabricated the Thumb Drive Slides. !d. ,-r,-r 41-42. The Arbitrator relied on Seagate's contention that it could not locate the thumb drive versions of the presentations in its own files and on stylistic differences between the Thumb Drive Slides and the versions ofthe slides from Seagate's files. !d. ,-r,-r 31-39. The Arbitrator did not find that any Western Digital officer responsible for presenting the defense actually knew that Dr. Mao had fabricated the Thumb Drive Slides. Indeed, he found that even though Western Digital's presentation of the Thumb Drive Slides was "willful," its conduct was not "malicious." !d. ,-r 47. Seagate-which had the burden of proof on this issue-presented no evidence that any Western Digital officers responsible for the defense in the arbitration actually knew that the Thumb Drive Slides were fabricated. Tellingly, the Arbitrator exonerated the lawyers for Western Digital and Dr. Mao of any knowledge of the wrongdoing because there was "insufficient evidence to conclude" that any attorneys "were complicit in the presentation of the ... fabricated evidence." !d. ,-r 46. Despite this, the Arbitrator stated that Western Digital "had to know" that Dr. Mao fabricated the slides because the fabrication was "obvious" (id. ,-r 43), which in his view made Western Digital "complicit[]" in the submission of the "obviously fabricated evidence." !d. ,-r 44 (emphasis added). Because the Arbitrator found that the evidence was not obvious to the lawyers who submitted the slides and who had an ethical duty to tell both the company and the Arbitrator about "obviously fabricated evidence," one would expect the Arbitrator to have explained how the falsity could have been obvious to Western Digital. The Award is silent on that salient point. In any event, the Arbitrator's conclusions that Western Digital's lawyers were not complicit in the presentation of fabricated evidence but that Western Digital somehow "had to know" that the Thumb Drive Slides were fabricated-even 7 though its conduct was not "malicious"-means that this massive sanction against Western Digital rests only on a finding of negligence and not a malicious presentation of fabricated evidence. Nor does the Award square the finding of obviousness with Western Digital's forensic evidence that the thumb drives had not been modified since 2003 and 2005. The Award also does not mention that a neutral, third-party witness, Dr. Jacques Kools, testified at the arbitration that he saw in 2003 Dr. Mao publicly present the very slide (alleged Trade Secret 4) that was the focus of the Arbitrator's fabrication finding. There is no finding that this expert and fact witness testimony was not credible or that Western Digital, like its attorneys, could not have believed it. The Arbitrator "impose[ d] the following sanctions" on both Dr. Mao and the company: a) Preclusion of any evidence or defense by Western Digital and Dr. Mao disputing the validity of Seagate's asserted trade secrets 4, 5, and 6; b) Preclusion of any evidence or defense by Western Digital and Dr. Mao regarding misappropriation by Western Digital and Dr. Mao ofSeagate's asserted trade secrets 4, 5, and 6; c) Preclusion of any evidence or defense by Western Digital disputing that it has used or is using Seagate's asserted trade secrets 4, 5, and 6 in Western Digital's manufactured TMR read heads; and d) Entry of judgment against Western Digital and Dr. Mao of liability for misappropriation and use ofSeagate's asserted trade secrets 4, 5, and 6. Award ,-r 45. The Arbitrator thus refused to consider a panoply of exculpatory testimony and documentary evidence (untainted by any misconduct) whose relevancy, veracity, and authenticity were unquestioned. The Arbitrator precluded all of Western Digital's evidence and defenses as to all the elements of secrecy, misappropriation, and use, when the alleged fabrication related only to one aspect of secrecy, i.e., whether Dr. Mao ever showed the slides publicly while still employed at Seagate. The Arbitrator made no mention of any authority he had to impose punitive sanctions or to ignore the requirement that 8 any punishment be the least drastic sanction. The Award therefore does not address whether any lesser sanction would fully remedy the wrongful conduct as to Seagate. The Award also was not conceivably necessary to deter future misconduct or to protect the integrity of the proceeding. The Arbitrator did not inform the parties of his finding that Dr. Mao had fabricated evidence until after the close of the proceeding. Seagate, in April 2010, accused Dr. Mao of fabrication and the Arbitrator deferred decision on the issue until the merits hearing from May-July 2011. !d. ~ 29. Although the Arbitrator heard the evidence on which he focused for his fabrication finding on June 10, 2011 (id. ~ ~ 36-42; Vol. 14, 158:8-164:9), a finding of "obvious[]" fabrication first appears in the Award on November 18, 2011, well after the proceeding concluded. The Arbitrator thus did not give Western Digital and Dr. Mao the opportunity to take corrective measures and the sanction could have no effect on future conduct or the course of the arbitration. The Arbitrator awarded unjust enrichment damages of $525 million and interest of $105,431,501 million, for a total of $630,431,501. Based on our research, as confirmed by the Affidavit of Gregory B. Joseph, Esq., the Award far exceeds the largest case-ending sanction ever imposed by any American court or arbitrator. See Joseph Aff. ~ 9. 4 ARGUMENT Western Digital does not ask this Court to weigh the evidence on Trade Secret Claims 4-6. Rather, the basis of the petition is that the Arbitrator failed to do so and thereby deprived Western Digital of its right under the MAA and the AAA Employment Rules to be heard on those claims. The Award satisfies three grounds for vacatur. First, the Arbitrator exceeded his powers and engaged in prejudicial misconduct by awarding $630,431,501 million based on a punitive sanction that 4 Seagate argued that Western Digital's use of the alleged Trade Secrets substantially caused its 2007-2010 decrease in market share (and Western Digital's increase). Seagate admitted, however, that it lost market share due to delayed product introductions and severe product quality problems. WD Ex. 2129; WD Ex. 1760, at 4-5; WD Ex. 1078; WD Ex. 1634; WD Ex. 1781; WD Ex. 325; WD Ex. 2739; WD Ex. 2011; Vol. 12,25:20-26:10,57:2-11,77:10-23,90:15-24. 9 excluded massive, relevant, and untainted evidence. Second, the Arbitrator's refusal to hear material evidence deprived Western Digital of a fair hearing and rendered the proceeding structurally defective. Third, the Award violates Minnesota public policy favoring dispositions on the merits. This arbitration was purely private; the proceeding was confidential (AAA Employment Rule 23); and the Arbitrator could not make law. Arbitrators are private citizens, not judges with supervisory and disciplinary power over attorneys who appear before them. Unlike judges, arbitrators do not have an institutional responsibility that includes the power to punish contempt and to enforce society's norms. The powers of arbitrators are derived from the agreement of the parties. Western Digital did not agree to confer upon this private Arbitrator the power to impose punitive sanctions. At a minimum, Western Digital did not agree to confer upon the Arbitrator a sanction power completely untethered from the limitations on a court's authority to impose sanctions. Courts have authority under Minnesota law to impose a punitive sanction for evidentiary misconduct only if (1) the party "is seriously at fault," i.e., acted maliciously; (2) the opposing party was severely prejudiced; and (3) there is no "lesser sanction that will avoid substantial unfairness to the opposing party and ... will serve to deter such conduct by others in the future." Miller v. Lankow, 801 N.W.2d 120, 132 (Minn. 2011) (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994)). See infra pp. 15- 21. Even assuming the Arbitrator had limited power to impose sanctions, he vastly exceeded his authority here in a manner that denied Western Digital an opportunity to be heard. I. THE ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO ADJUDICATE TRADE SECRET CLAIMS 4-6 ON THEIR MERITS The MAA provides that "the court shall vacate an award" when an arbitrator "exceeded [his] powers" (Minn. Stat. 572.19, subd. 1 (3)) or there was "misconduct prejudicing the rights of any party" (id. 572.19, subd. 1(2)). "A reviewing court must independently determine the scope of the arbitrator's authority de novo" by determining the parties' intent. Cnty. of Hennepin, 527 N.W.2d at 824; AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1752 (2011) ("Arbitration is a matter of 10 contract, and the FAA requires courts to honor parties' expectations."); accord Stolt-Nielsen SA. v. Anima!Feeds Int'l Corp., 130 S. Ct. 1758, 1767-68 (2010). 5 A. The Arbitrator Lacked The Power To Impose Punitive Sanctions "[A]ny intent of the parties to afford contempt-like power on the arbitrator must be clearly evident." Certain Underwriters at Lloyd's, London v. Argonaut Ins. Co., 264 F. Supp. 2d 926, 944 (N.D. Cal. 2003) (emphasis added). The parties' agreement to arbitrate this dispute neither confers nor even hints at a power to impose punitive sanctions-and certainly not a power to disregard all of one party's evidence as a sanction-especially where sanctions are neither necessary to remediate a party's wrongful conduct nor to prevent that party from engaging in future misconduct in the arbitration. 6 Nor is any such power given by the AAA Employment Rules that governed this case. Those rules are silent as to sanctions and allow an arbitrator to impose attorneys' fees and costs only when recoverable by the prevailing party with respect to the underlying arbitral claim. Rule 39( d) of the AAA Employment Rules states that an arbitrator "may grant any remedy or relief that would have been available to the parties had the matter been heard in court including awards of attorney's fees and costs, in accordance with applicable law." That language, however, does not grant the power to impose a non- remedial, punitive sanction but rather addresses the type of "remedy or relief' available for a claim, such as back pay, injunctive relief or unjust enrichment. In MCR of America, Inc. v. Greene, 811 A.2d 331, 344-45 (Md. Ct. App. 2002), the court explained that an earlier (but in all material respects identically 5 Dr. Mao's At-Will Employment, Confidential Information and Invention Assignment Agreement ("Mao Agreement"), which contains the arbitration clause, states (at 4): "This Agreement will be governed by the laws ofthe State of Minnesota." Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344, 351 (Minn. 2003), holds that the Federal Arbitration Act's arbitrability clause, 9 U.S.C. 2, preempts Minnesota law. The vacatur grounds of 9 U.S.C. 10, however, do not apply in state courts. Cable Connection, Inc. v. DIRECTV, Inc., 190 P.3d 586, 597-98 & n.12 (Cal. 2008); Raymond James Fin. Servs., Inc. v. Honea, 55 So.3d 1161, 1168-69 (Ala. 2010); but cf Wien & Malkin LLP v. Helmsley-Spear, Inc., 846 N.E.2d 1201, 1206 (N.Y. 2006). In all events, "[t]he grounds for vacating an arbitration award under the Federal Arbitration Act are similar to those under the Minnesota act." Hunter, Keith Indus. v. Piper Capital Mgmt. Inc., 575 N.W.2d 850, 854 (Minn. Ct. App. 1998). 6 The Mao Agreement states (at 4): "I agree that any dispute or controversy arising out of ... this Agreement, shall be settled by arbitration to be held in Hennepin County, Minnesota, in accordance with the rules then in effect of the [AAA]. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be fmal, conclusive and binding on the parties to the arbitration." 11 worded) version of Rule 39 "does not mention sanctions, and it is simply too vague and ambiguous for us to conclude that it granted the arbitrator the right to impose sanctions." When the AAA gives sanctioning power to an arbitrator, it has done so explicitly. See Rule 16, AAA Multi-Employer Pension Plan Rules (arbitrator "may impose appropriate sanctions"), Schissel Aff., Ex. SS. Similarly, when other arbitration organizations vest their arbitrators with sanctioning power they also do so expressly. Rule 46 of the National Arbitration Forum, Code of Procedure states: "An Arbitrator may Sanction a Party or Representative, or both, for violating any Rule, notice, ruling or Order, or for asserting an unsupportable Claim or Response." ld., Ex. PP. The Financial Industry Regulatory Authority (FINRA) arbitration rules likewise provide that "[t]he panel may sanction a party for failure to comply with any provision in the Code, or any order of the panel or single arbitrator." FINRA Rules, Code of Arbitration Procedure for Customer Disputes, Rule 12212(a), id., Ex. QQ; accord JAMS Comprehensive Arbitration Rules & Procedures, Rule 29 ("The Arbitrator may order appropriate sanctions."), id., Ex. RR. See also Joseph Aff. '1[7. The parties here assumed that the Arbitrator had some authority to impose appropriate corrective sanctions (such as attorneys' fees) as a remedy for litigation misconduct. 7 But Western Digital did not agree to empower the Arbitrator to exclude a party's entire case. Indeed, the deference owed to an arbitrator's decision on the merits is based on the premise that the arbitrator conducts the proceeding consistent with basic procedural safeguards such as the right to present evidence. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 481 (1989). To this end, Minnesota law guarantees three structural protections to ensure that parties receive a fundamentally fair arbitration hearing that preserves the central truth-seeking function of the process. 7 For instance, Western Digital requested attorneys' fees and costs on the ground that Seagate had an insufficient basis to allege fabrication. Western Digital Br. in Opp. to Seagate 's Mot. for Sanctions, pp. 2-3 (May 11, 2010). 12 ' . Section 572.12(b) of the MAA states that "[t]he parties are entitled [1] to be heard, [2] to present evidence material to the controversy and [3] to cross-examine witnesses appearing at the hearing." The AAA Employment Rules reiterate that an arbitrator "shall exercise [his] authority [over the proceedings] to afford a full and equal opportunity to all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute." Employment Rule 28 (emphasis added). AAA Employment Rule 29 even forbids a default when a party fails to appear at the arbitration: "An award shall not be based solely on the default of a party" when a party to the arbitration "fails to be present or fails to obtain a postponement." Rule 29 requires the party in attendance to present "such evidence as the arbitrator may require for the making of the award." An arbitrator's powers are limited by those procedural safeguards. Categorical preclusion of one party's entire case patently violates MAA Section 572.12(b). Here, the Arbitrator had no authority to deny Western Digital a full and equal right to present material evidence, much less to deny the company the right to be heard on all of its defenses and to present any evidence with respect to Trade Secrets 4-6. The Arbitrator imposed the most punitive form of sanctions imaginable by refusing to consider all of Western Digital's evidence and defenses and ordering it to pay a massive sum to Seagate, its largest competitor, regardless of whether Western Digital actually misappropriated any trade secret. The Arbitrator vastly exceeded his authority and engaged in misconduct in so sanctioning Western Digital. As to Trade Secret 4, the Arbitrator refused to consider numerous public documents showing that the allegedly secret items depicted therein were known publicly as of October 2006. Such evidence included a United States patent application (U.S. Patent No. 7,148,072) published on December 15, 2005 (WD Ex. 246; Vol. 31, 76:23-77:19, 80:23-81:19); an October 2006 IEEE Transactions on Magnetics article (WD Ex. 257; Vol. 31, 81:20-83:9); a September 2004 Solid State Technology article (WD Ex. 294; Vol. 31, 88 :20-90:2); a November 2002 presentation at a large industry symposium (WD Ex. 245; Vol. 30, 206:13-207:17); a September 2003 presentation at a large industry symposium (WD 13 ' . Ex. 247; Vol. 31, 73:12-75:3); a September 2004 presentation at a large industry symposium (WD Ex. 248; Vol. 31, 75:4-76:22); and an October 2005 presentation (WD Ex. 249; Vol. 31, 86:9-88:19). The Arbitrator also refused to consider testimony from a Seagate engineer that one of the concepts was part of"grad school training." (Song Depo. 71 :5-9). For Trade Secret 5, the Arbitrator refused to consider numerous industry publications showing that the allegedly secret concepts were widely known before October 2006. The excluded evidence included a November 1995 IEEE Transactions On Magnetics article (WD Ex. 306; Vol. 31, 102:9- 103:16); a January 1996 article (WD Ex. 305; Vol. 31, 101:13-102:8); a September 1996 article (WD Ex. 304; Vol. 31, 100:1-101:6); a July 2004 article (WD Ex. 2644; Vol. 31, 98:24-99:15); and a September 2004 public presentation (WD Ex. 248; Vol. 31, 104:24-105:19). For Trade Secret 6, the Arbitrator refused to consider a July 2001 IEEE Transactions On Magnetics article (WD Ex. 311; Vol. 31, 125:6-21); a September 2002 article (WD Ex. 310; Vol. 31, 122:14-124:3); a July 2004 article (WD Ex. 2644; Vol. 31, 116:3-17); a United States patent application (U.S. Patent No. 7,194,797) published on January 5, 2006 (WD Ex. 307; Vol. 31, 114:6-115:8); a March 2006 public presentation (WD Ex. 2115; Vol. 31, 119:6-24); and an October 2006 article (WD Ex. 257; Vol. 31, 115:9-116:2, 121:13-122:13). The Arbitrator also refused to consider material admissions by Seagate's witnesses, including the concession by a Seagate engineer that he had previously published papers concerning Trade Secret 6 concepts (Vol. 31, 116: 18-117:25); the admission by another Seagate engineer that as of 2006 that same concept was generally known (Vol. 31, 118: 1-12); and admissions by Seagate's own engineers that the concepts comprising Trade Secret 6 were known outside of Seagate before October 2006 (Heinonen Depo. 65:5-14; Vol. 31, 125:22-127:4; 127:9-129:10). The MAA and the AAA Employment Rules required the Arbitrator to hear this material and untainted evidence and to decide Trade Secret Claims 4-6 based on weighing both sides' evidence. 14 ' ' ' B. The Arbitrator Imposed A Punitive Sanction That Even A Court Could Not Impose Even in a court, a case-ending sanction is an "extreme measure, reserved only ... as a last resort if no alternative remedy by way of a lesser, but equally efficient, sanction is available." Capellupo v. FMC Corp., 126 F.R.D. 545, 552 (D. Minn. 1989). It may be imposed only in "exceptional circumstances." Firoved v. Gen. Motors Corp., 152 N.W.2d 364, 368 (Minn. 1967). Minnesota law permits a punitive sanction that disposes of a case only if (1) the party who altered or destroyed evidence is "seriously at fault," i.e., acted maliciously; (2) the opposing party was severely prejudiced; and (3) there is no "lesser sanction that will avoid substantial unfairness to the opposing party and ... will serve to deter such conduct by others in the future." Miller, 801 N.W.2d at 132 (quoting Schmid, 13 F.3d at 79). Principles of due process, i.e., fundamental fairness cabin such authority particularly when other sanctions are available. Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1342-43 (9th Cir. 1985). Schmid, which provided the "analytical framework" for the Minnesota Supreme Court's decision in Miller (801 N.W.2d at 133), is instructive. Schmid reversed a trial court's sanction that "barred all evidence" in a way that "thereby deprived Schmid of any opportunity to prove his case." 13 F.3d at 79. The Third Circuit explained that dismissal of the action was "not commensurate with the limited fault and prejudice present in [the] case." !d. at 81. Without finding any prejudice to Seagate, without considering less severe alternatives, and without finding culpability of Western Digital that distinguishes the company from its lawyers for whom the Arbitrator found no complicity in the misconduct, the Arbitrator proceeded as if Western Digital had never presented a defense to Trade Secret Claims 4-6. The Arbitrator had no authority to enter judgment on liability by ignoring untainted, material, and voluminous exculpatory evidence. Western Digital agreed to an arbitral resolution of the parties' dispute on the merits, not an award issued regardless of whether Seagate was right on the merits. 15 1. Seagate Was Not Prejudiced In Its Ability To Prove Its Case In judicial cases involving allegations of "document destruction or alteration," courts must consider if the misconduct prejudiced the other party who may have needed the destroyed evidence to prove its case. Courts must examine the nature of the evidence "in the context of the claims asserted and the potential for remediation of the prejudice." Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995); accord Miller, 801 N.W.2d at 132; Smothers v. Ins. Restoration Specialist, Inc., No. A04-1036, 2005 WL 624511, at *6 (Minn. Ct. App. Mar. 17, 2005) (the sanction "should be proportional to the prejudice suffered by the opposing party"); Wajda v. Kingsbury, 652 N.W.2d 856, 860 (Minn. Ct. App. 2002) ("The appropriateness of a sanction for spoliation of evidence is determined by the prejudice to the opposing party."); Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn. Ct. App. 1998) (legitimacy of sanction "is determined by the prejudice resulting to the opposing party"); Chi. Greatwestern Office Condo. Ass 'n v. Brooks, 427 N.W.2d 728, 730-31 (Minn. Ct. App. 1988) (same). Dismissal is not an option unless the destroyed evidence was essential to the party's case. Patton, 528 N.W.2d at 118-19; Capellupo, 126 F.R.D. at 553. 8 The same analysis applies to fabrication. The Arbitrator entered judgment against Western Digital on liability based, in effect, on a conclusive, i.e., irrebuttable presumption that Western Digital had no defense to Seagate's Trade Secret Claims 4-6. A w a r d ~ ~ 44-45. Where a defendant fabricates evidence that is cumulative of other evidence supporting the defense, a remedial sanction can preclude use of the fabricated evidence and compensate the plaintiff for attorneys' fees and costs related to the misconduct. But in such circumstances the fabrication does not prejudice the plaintiff in establishing its case because the defendant's other evidence also undermined the plaintiffs claims. 8 The Eighth Circuit also requires prejudice and holds that a court lacks the power to impose an irrebuttable inference that destroyed evidence would have been adverse. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 750-51 (8th Cir. 2004); Shelton v. Am. Motors Corp., 805 F.2d 1323, 1330 (8th Cir. 1986). 16 ' . , The Arbitrator cited a 1981 Illinois intermediate court decision that relied on a 1964 treatise on Illinois evidence for the notion that "[when] evidence is shown to have been fabricated, a presumption arises that the ... defense it was intended to support is without substantial foundation." !d. ~ 44 (quoting Harris Trust & Sav. Bank v. Ali, 425 N.E.2d 1359, 1366 (Ill. App. Ct. 1981) (quoting 2 Callaghan's Illinois Evidence 3.152 (1964))). But the very next sentence of that treatise, not reiterated by the Arbitrator, states that the "presumption ... will yield if other evidence in the case establishes the cause of action or the defense." 2 Callaghan's Illinois Evidence 3.152 (emphasis added); 31A C.J.S. Evidence 253 (2011) (same); cf Jacobson v. $55,900 in US. Currency, 728 N.W.2d 510, 522 (Minn. 2007) (A presumption "has no additional function other than the limited one of dictating the decision where there is an entire lack of competent evidence to the contrary.") (emphasis in original and citation omitted); Kath v. Kath, 55 N.W.2d 691, 694 (Minn. 1952) ("[T]he very moment substantial countervailing evidence appears from any source [a presumption] ceases to have any function and vanishes completely from the cause as if it had never existed."). The absence of prejudice to Seagate (other than attorneys' fees and costs) means that the Arbitrator had no authority to issue a case-ending sanction. In ruling in favor of Western Digital on Trade Secret Claims 1-3, 7, and 8, the Arbitrator relied on published patent applications, patents, industry presentations, and published scientific articles. A w a r d ~ ~ 13-14 (Trade Secret 1); 17 (Trade Secret 2); 20-21 (Trade Secret 3); 24 (Trade Secret 7); and 27 (Trade Secret 8). Western Digital presented the very same types of evidence to disprove Trade Secret Claims 4-6. Seagate could not have been prejudiced by the fabrication when the same types of evidence were also before the Arbitrator on Trade Secret Claims 4-6. Western Digital argued that Dr. Mao, while still employed at Seagate, presented the three Thumb Drive Slides at two public conferences, and therefore that the concepts comprising Trade Secrets 4-6 were publicly known. But even without the slides, Western Digital's defenses were "independently 17 prov[able] by untainted means." Suntrust Mortg., Inc. v. AIG United Guar. Corp., No. 3:09cv529, 2011 WL 1225989, at *27 (E.D. Va. Mar. 29, 2011). In addition to the three slides, the Arbitrator had before him two published patent applications (WD Exs. 246 & 307), seven articles in scientific journals (WD Exs. 257, 304, 306, 310, 311, 2644), three public presentations where individuals other than Dr. Mao discussed the concepts (WD Exs. 247-49), expert testimony (e.g., Vol. 30, 205:12-206:1; 206:13- 207:17; 207:23-210:21; Vol. 31, 83:11-86:1; 104:18-23), and fact testimony by both Western Digital and Seagate witnesses (e.g, Vol. 26, 78:17-20, 167:19-169:4; Vol. 25, 77:13-24; Vol. 12, 122:8-19). That evidence, independent of the three slides, showed that the concepts were both public and known by Western Digital engineers before Western Digital hired Dr. Mao. Worse still, Western Digital also presented abundant evidence that there was no importance or uniqueness in the way the concepts depicted on Trade Secret Slides 4-6 were ordered or arranged (Vol. 31, 90:19-91:3, 108:9-20, 129:19-23), and that the concepts, even if secret, were not used by Western Digital and thus Seagate could not establish the elements of a misappropriation claim. At a minimum, the Arbitrator had no authority to exclude evidence that Western Digital had not "used" Trade Secrets 4- 6 in connection with its products. Award ~ ~ 54, 62, 70. The element of "use" is completely distinct from the issue of secrecy, i.e., the issue to which the Thumb Drive Slides related. Even assuming the Arbitrator could have presumed that the Trade Secrets 4-6 concepts were secret (despite massive, untainted, material evidence to the contrary), the Arbitrator had no authority to refuse to consider the testimony of numerous witnesses that Western Digital engineers were aware of the concepts depicted in the Trade Secret Slides well before Dr. Mao joined Western Digital. See, e.g., Vol. 26, 78:17-20, 167:19-169:4; Vol. 25, 77:13-24. The Arbitrator also improperly refused to consider expert testimony that Western Digital had made no changes to its products or processes based on the Trade Secret Slides (Vol. 30, 99:24-100:6, 104:16-22, 111:19-113:6), and that Western Digital's TMR development work was consistent with the expert's industry experience, including his personal experience in MgO TMR 18 I. stack development at Hitachi. Vol. 30, 67:1-68:5, 70:22-71:24, 87:1-9, 88:21-89:10. It was also improper for the Arbitrator to decline to consider the concession by Seagate's CFO that by the time Dr. Mao joined Western Digital in October 2006, "TDK [a competing recording head manufacturer] had already launched heads using MgO-based TMR"-to which the alleged Trade Secrets 4-6 relate-and was supplying all of Seagate's competitors with those heads. Vol. 12, 122:8-19. Indeed, Western Digital's initial MgO TMR product launch included hard drives with TMR heads manufactured by TDK. Vol. 20, 79:10-13, 100:5-16. Again, Western Digital does not seek this Court's review of the merits based on the evidence. Western Digital seeks to have an arbitrator do that. This Court need find only that this evidence existed, that it was presented and admitted, but that the Arbitrator nevertheless refused to consider it. 2. Lesser Alternative Sanctions Were Available Minnesota law requires "the least restrictive sanction available under the circumstances." State Farm Ins. v. Chase, No. C6-01-969, 2002 WL 47796, at *4 (Minn. Ct. App. Jan. 15, 2002) (internal quotation marks and citations omitted); accord Miller, 801 N.W.2d at 132 (court has a "duty to tailor the sanction," so must consider "whether there is a lesser sanction that will avoid substantial unfairness to the opposing party"). That requirement reflects the strong public policy that "the primary objective of the law [is] to dispose of cases on the merits." Firoved, 152 N.W.2d at 368. Here, effective alternatives short of a case-ending sanction included excluding the Thumb Drive Slides and the testimony of Dr. Mao, 9 imposing a rebuttable inference that the contents of the slides were not publicly known, 10 or requiring payment of Seagate's attorneys' fees and costs incurred in 9 See, e.g., State Farm Ins., 2002 WL 47796, at *4 (reversing summary judgment for destroying evidence and directing trial court to consider excluding evidence and lesser sanctions). 10 See, e.g., Stevenson, 354 F.3d at 750 (holding rebuttable adverse inference instruction appropriate as sanction for spoliation); Moore v. R.TL. Constr., Inc., Nos. 09-3178; 09-3177, 2011 WL 4729861, at *2 (D. Minn. Oct. 6, 2011) (imposing adverse factual finding but not default judgment for falsifying evidence in bad faith and improper withholding of documents). 19 \. connection with investigating and litigating the fabrication issue. 11 In Kashner, supra, the First Circuit vacated an award as a manifest disregard of the law where the panel dismissed a case as a sanction for a party's misconduct. The arbitral rules in that case expressly granted the arbitration panel the power to dismiss as a sanction "iflesser sanctions have proven ineffective." 531 F.3d at 75 (quoting NASD Rule 10305). The court vacated the Award because "[t]here was no history of lesser sanctions having been tried." Id. at 79. The requirement that lesser sanctions first be exhausted should be even stronger here, where neither the parties' agreement nor the applicable arbitration rules conferred sanctioning power on the Arbitrator. Because the Award makes no pretense of tailoring and is grossly excessive under the circumstances, it must be vacated. 3. The Arbitrator's Findings Do Not Support The Sanction Imposed Any punitive sanction must be predicated on the party's malicious intent. Miller, 801 N.W.2d at 132; accord Schmid, 13 F.3d at 79; Shelton, 805 F.2d at 1330; Browning Debentures Holders' Comm. v. DASA Corp., 560 F.2d 1078, 1089 (2d Cir. 1977); cf Patton, 538 N.W2d at 119 (upholding purely remedial sanctions for negligent spoliation). The Arbitrator had no authority to enter a punitive judgment against Western Digital for the actions of Dr. Mao. The Arbitrator did not find that Western Digital acted maliciously; that Western Digital participated in the fabrication of the evidence; or that Dr. Mao told Western Digital about the fabrication. A party's failure to recognize something that should be "obvious" is negligence, not malicious conduct that could support a punitive award. 11 See, e.g., Olson v. Babler, No. A05-395, 2006 WL 851798, at *8 (Minn. Ct. App. Apr. 4, 2006) (attorneys' fees when party "consistently lied under oath and fabricated facts that were to be considered by court in making its decision"); Chase v. Burlington N. Santa Fe Corp., No. 02-C0-04-10312, 2009 WL 6356932 (Minn. Dist. Ct. Oct. 15, 2009) (fees, costs, and disgorgement of profits gained from delaying litigation where party compromised critical evidence, interfered with witnesses, impeded investigation by law enforcement, and misled plaintiffs and court), aff'd in relevant part sub nom., Frazier v. Burlington N. Santa Fe. Corp., 788 N.W.2d 770 (Minn. Ct. App. 2010); Suntrust Mortg., 2011 WL 1225989, at *28-29 (attorneys' fees and expenses for alteration of emails); Capellupo, 126 F.R.D. at 552-53 (double attorneys' fees and $1,432.00 payment to the court for consumption of court's time where company systematically destroyed documents). 20 Moreover, the Arbitrator found that the fabrication was not "obvious" to the lawyers who presented the evidence and who had the ethical duty not to present false evidence. Minn. R. Prof. Conduct 3.3(a)(3) (2005). If the fabrication was not obvious to Western Digital's lawyers, it could not have been obvious to Western Digital. Furthermore, Western Digital's forensic expert testified that the relevant thumb drives had not been modified, and an impartial third-party (Dr. Kools) testified that he recalled Dr. Mao presenting the Trade Secret 4 slide at the 2003 public Veeco conference. The Arbitrator did not question the credibility or veracity of this evidence. As previously explained (see supra pp. 7-8), the Arbitrator's findings taken together mean that Western Digital may have been negligent-not that it proffered fabricated evidence maliciously. II. THE AWARD MUST BE VACATED BECAUSE THE ARBITRATOR REFUSED TO HEAR MATERIAL EVIDENCE Minnesota law requires vacatur if the Arbitrator "refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 572.12, as to prejudice substantially the rights of a party." Minn. Stat. 572.19, subd. 1(4). This basis for vacatur offers "a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case." Bur/age v. Super. Ct., 100 Cal. Rptr. 3d 531, 535 (Cal. Ct. App. 2009) (California Arbitration Act). The Award profoundly violates Western Digital's rights under Section 572.12 "to be heard" and "to present evidence material to the controversy." Courts are required to vacate arbitration awards where an arbitrator's improper refusal to hear substantial, probative evidence has deprived a party of the opportunity to present its case. Thus, in Redner v. NY Fire Ins., 99 N.W. 886, 887 (Minn. 1904), the Supreme Court held that an award must be set aside based on an arbitrator's "refusal to hear any evidence whatever on [the party's] behalf." Similarly, in Bur/age, supra, the court held that an arbitrator's exclusion of material evidence required vacatur. 100 Cal. Rptr. 3d. at 536-37. The court observed that although "parties to an arbitration have 21 , ' ' bargained for a final and binding decision," "without the opportunity to present material evidence, [the party] did not receive the benefit of that bargain." Id. Many other cases vacating arbitral awards are to the same effect. City of Bridgeport v. Kasper Group, Inc., 899 A.2d 523, 529-35 (Conn. 2006) (arbitrator refused to admit "highly probative" evidence); Bordonaro v. Merrill Lynch, Pierce, Fenner & Smith, 805 N.E.2d 1138, 1140-44 (Ohio Ct. App. 2004) (arbitrator's exclusion of expert testimony "eviscerated plaintiff's case and thus amounts to a gross procedural impropriety"); Gulf Coast Indus. Workers Union v. Exxon Co. USA, 70 F.3d 847, 850 (5th Cir. 1995) (failure to consider relevant evidence of drug test); In re Bevona, 611 N.Y.S.2d 193, 196 (N.Y.A.D. 1st Dep't 1994) ("[B]oth parties had already presented substantial evidence, [but] the arbitrator rendered a default award."); Prudential Sec., Inc. v. Dalton, 929 F. Supp. 1411, 1417 (N.D. Okla. 1986) (failure to hear factual evidence and instead deciding case on basis of a presentation by counsel and documents in the file); Hoteles Condado Beach, La Concha & Convention Ctr. v. Union De Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir. 1985) (refusal to consider "central" evidence); Teamsters eta!. v. E.D. Clapp Corp., 551 F. Supp. 570, 578 (N.D.N.Y. 1982) (hearing at which a party was not allowed to complete its presentation of proof); Transamerica Ins. v. Kemper Ins., 79 A.D.2d 69, 71-72 (N.Y.A.D. 4th Dep't 1981) (panel dismissed case because party failed to appear). The prejudice to Western Digital from the preclusion of its entire case on Trade Secrets 4-6 is plain. As described in some detail above, the disregarded defense evidence was voluminous and highly material. See supra pp. 13-14, 18-19. It is highly likely that, had this evidence been considered, Trade Secret Claims 4-6 would have met the same fate as all ofSeagate's other Trade Secret claims. The Arbitrator's refusal to consider untainted evidence falls squarely within settled grounds for vacatur. The Award on its face deprived Western Digital of the right to present its case by barring all defenses and the presentation of any evidence on the elements of Seagate's Trade Secret Claims 4-6- even evidence that was in no way tainted by the Thumb Drive Slides and even evidence that pertained to 22 elements of Seagate's misappropriation claims other than secrecy. Because the pertinent exculpatory evidence was disregarded, the Arbitrator found that each of those alleged Trade Secrets "was not generally known or readily ascertainable." Award ,-r,-r 51, 59, 67. That was a finding based solely on the sanction and on the refusal to consider any evidence to the contrary favoring Western Digital. See supra pp. 13-14, 18. And the Arbitrator likewise reached the conclusion that Western Digital engaged in "improper use" of those secrets (Award ,-r,-r 55, 63, 71) solely by refusing to hear the contrary evidence. See suprapp. 18-19. In short, vacatur is required because the Arbitrator excluded evidence that was indisputably "material to the controversy," Minn. Stat. 572.19, subd. 1(4), and with obvious prejudice to Western Digital's right to a fair proceeding under Section 572.12. III. THE AWARD ALSO VIOLATES MINNESOTA'S WELL-DEFINED PUBLIC POLICY IN FAVOR OF DECIDING CASES ON THE MERITS Under Minnesota law, an arbitration award may be vacated where the decision violates a policy that is "well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." City of Brooklyn Ctr., 63 5 N. W .2d at 241. Thus in City of Brooklyn Center, the Court of Appeals vacated an arbitration award where judicial enforcement would have violated public policy protecting the public from police sexual harassment. 12 "[D]eciding cases on their merits, and against depriving a party of his fair day in court" is a well- recognized and bedrock public policy in Minnesota. Chi. Greatwestern Office Condo. Ass 'n, 427 N.W.2d at 731. Minnesota thus embraces the "strong policy in favor of deciding a case on its merits." Allen v. Tobacco Superstore, Inc., 475 F.3d 931,936 (8th Cir. 2007). After all, "the goal of all litigation 12 The Supreme Court has left open whether an arbitrator's "manifest disregard of the law" may form the basis for vacating awards governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. See Stolt-Nielsen S.A., 130 S. Ct. at 1768 n.3. The Award here meets that standard. Kashner, 531 F.3d at 68, 74, 79. 23 'is to bring about judgments after trials on the merits."' Petrich v. Dyke, 419 N.W.2d 833, 835 (Minn. Ct. App. 1988) (Schumacher, J.) (quoting Sommers v. Thomas, 88 N.W.2d 191, 196 (Minn. 1958)). Minnesota arbitration law expressly reflects this public policy by providing that parties "are entitled to be heard [and] to present evidence material to the controversy." Minn. Stat. 572.12(b). Because the Arbitrator imposed an unprecedented sanction that violates Minnesota public policy, "the proper discharge ofth[is] court's duty requires that it avoid a merely perfunctory approach to appeals of orders confirming arbitration awards." City of Brooklyn Ctr., 635 N.W.2d at 244. Rather than decide the case on the merits, the Arbitrator refused to weigh highly probative evidence with respect to Trade Secret Claims 4-6, including testimony from 22 witnesses and numerous exhibits that included voluminous materials in the public domain. This unprecedented Award was wholly unwarranted and grossly disproportionate to the Arbitrator's finding of the level of fault of Western Digital. Confirmation would violate public policy, be grossly punitive against a company, and undermine the legitimacy of the arbitral process. CONCLUSION AND RELIEF REQUESTED Western Digital respectfully asks this Court to issue an Order (1) vacating the Award with regard to Trade Secret Claims 4-6, and (2) compelling arbitration of Trade Secret Claims 4-6 on the merits. In addition, Western Digital asks that the Court issue an Order compelling the appointment of a new arbitrator to arbitrate Trade Secret Claims 4-6. See Manchester Twp. Bd. of Educ. v. Thomas P. Carney, Inc., 489 A.2d 682, 690-91 (N.J. Super. Ct. App. Div. 1985). 24 Dated: January 23, 2012 By __ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - Clifford M Greene, . No. 37436 Larry D. Espel, Reg. No. 27595 200 S. Sixth Street, Suite 1200 Minneapolis, MN 55402 (612) 373-0830 (612) 373-0929 ARNOLD & PORTER LLP Michael D. Schissel 399 Park A venue New York, NY 1 0022 (212) 715-1157 (212) 715-1399 Lisa S. Blatt 555 Twelfth Street NW Washington, DC 20004 (202) 942-5842 (202) 942-5999 Attorneys for Western Digital Corporation and Western Digital Technologies, Inc. ACKNOWLEDGMENT The undersigned hereby acknowledges that costs, disbursements and reasonable attorney and witness fees may be awarded pursuant to Minn. Stat. 549.211, subdivision 2, to the party against whom the allegations in this pleading are asserted. 25