In this dispute, the First Circuit previously reversed the confirmation of an arbitration award concluding that the award was in manifest disregard of law and remanded the case for the entry of an order vacating the award. Without addressing whether the arbitration panel should be reconstituted or not, the district court entered an order vacating the award and remanding the matter to FINRA. The Defendants argued against the remand to FINRA because the First Circuit did not specify such a remand. Treating the Defendants’ motion as a Rule 60(b) motion, the Plaintiffs argued that the motion did not demonstrate entitlement to relief pursuant to Rule 60(b)’s requirements. The district court denied the Defendants’ motion in a brief electronic order “[e]ssentially for the reasons stated in [the Plaintiffs’] Opposition.” The Defendants appealed both the district court’s remand order and electronic order denying the Rule 60(b) motion.

Before addressing the Appellants’ arguments, the First Circuit addressed the Appellees’ request to recall the earlier mandate in light of Hall Street Assocs. v. Mattel, 552 U.S. 576 (2008). Denying this request, the First Circuit noted that it had not yet determined whether Hall Street could be reconciled with the circuit’s manifest disregard case law and found that the court was not faced with such circumstances to warrant a recall of the mandate. In response to the Appellants’ argument that the remand order contravened the mandate, the First Circuit disagreed, stating that the district court was not limited to perform only those actions specifically listed in the mandate and finding that the mandate did not explicitly or implicitly prohibit the district court from remanding the matter to FINRA. The First Circuit then noted that the Appellants’ Rule 60(b) argument was mostly a reformulation of their argument against the remand order and affirmed the district court’s remand order. However, the First Circuit did address an issue with the brief electronic order by remanding the matter to the district court so that the court, after considering the parties’ arguments, could specify whether: (1) the original panel should be reconstituted; (2) a new panel should be constituted; or (3) FINRA should rule on this issue in the first instance, in accordance with FINRA’s practices and procedures. Kashner Davidson Sec. Corp. v. Mscisz, No. 09-1356 (1st Cir. Apr. 1, 2010).