Viacom International Inc. v. Winshall, 72 A.3d 78

Arbitration under a 2006 Merger Agreement regarding Harmonix Earn-Out payments after Viacom's $175M closing cash-out.
BDO USA LLP appointed as Resolution Accountants to resolve 2008 Earn-Out Disagreements; issues limited to items identified in 2008 Summary of Issues.
BDO excluded inventory write-down evidence because it was not identified in the initial dispute documents and not consented to by the parties.
Viacom challenged BDO’s determination as unfair/misconduct and sought vacatur under the FAA for exceeding powers or refusing to hear pertinent evidence.
Court of Chancery affirmed BDO’s determination that the 2008 Earn-Out was $298,813,095 and denied vacatur; Viacom appeals under FAA §10(a).
The dispute centers on procedural vs. substantive arbitrability and whether the arbitrator or the court should decide the scope of arbitration under the Merger Agreement and Engagement Letter.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BDO’s exclusion of inventory write-down evidence constitutes FAA §10(a)(3) misconduct.	Viacom says BDO’s exclusion deprived it of pertinent evidence, rendering the process unfair.	Winshall/BDO contend the issue was not properly before arbitration and thus excluded as a matter of procedural arbitrability.	No misconduct; exclusion was within procedural arbitrability and not vacatur-worthy.
Whether the inventory write-down issue was properly deemed outside the scope of arbitration (arbitrability).	Viacom argues this is an arbitrability question to be decided by court, not arbitrator.	BDO determined the issue was not properly before the Resolution Accountants per Merger Agreement/Engagement Letter.	Arbitrator appropriately decided procedural arbitrability; court to defer to arbitrator’s scope ruling.
Whether the trial court should have second-guessed or overridden BDO’s scope determination.	Viacom contends trial court should review arbitrator’s scope decision.	BDO's process and interpretation must stand; questions of scope fall within arbitration if properly outlined.	Trial court properly deferred to BDO; affirmed arbitration process and outcome.

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (Supreme Court 1964) (contained guidance on arbitrability and gateway questions)
HDS Inv. Holdg. Inc. v. Home Depot, Inc., — (—) (discusses late closing statement and contractual arbitral scope (contextual rule cited))
Nash v. Dayton Superior Corp., — (—) (post-closing adjustments; distinguishes arbitral scope issues)
Certain Underwriters at Lloyd's London v. Westchester Fire Ins. Co., 489 F.3d 580 (3d Cir. 2007) (commentary on evidence and arbitral scope under FAA)