Case: 16-41674   Document: 00515076566        Page: 1   Date Filed: 08/14/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 16-41674                    August 14, 2019
                                                                     Lyle W. Cayce
ARCHER AND WHITE SALES, INCORPORATED,                                     Clerk


             Plaintiff - Appellee

v.

HENRY SCHEIN, INCORPORATED; DANAHER CORPORATION;
INSTRUMENTARIUM DENTAL, INCORPORATION; DENTAL
EQUIPMENT, L.L.C.; KAVO DENTAL TECHNOLOGIES, L.L.C.; DENTAL
IMAGING TECHNOLOGIES, CORPORATION,

             Defendants - Appellants




                Appeals from the United States District Court
                      for the Eastern District of Texas


      ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In light of the Supreme Court’s decision, we consider anew the question
of whether the parties in this dispute delegated the threshold arbitrability
determination to an arbitrator. After being sued for antitrust violations,
defendants in this suit sought to enforce an arbitration agreement. Initially,
the magistrate judge granted a motion to compel arbitration, concluding that
the question of arbitrability of the claims itself belonged to an arbitrator. The
district court disagreed, holding that the arbitrability question was one for the
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                                       No. 16-41674
courts. This panel affirmed. 1 We determined that we need not reach the issue
of whether the arbitration provision delegated the issue of arbitrability to an
arbitrator because of a then-established narrow exception: where an assertion
of arbitrability was “wholly groundless,” a court was not required to submit the
issue of arbitrability to an arbitrator. Determining defendants’ arguments for
arbitrability were wholly groundless, we affirmed the district court’s holding
that the claims were not arbitrable.
       The Supreme Court reversed, holding that the “wholly groundless”
exception was inconsistent with the Federal Arbitration Act. 2 The Court
declined to opine on whether the contract in this case in fact delegated the
threshold arbitrability question to an arbitrator, remanding for this court to
make that determination in the first instance. It reminded that “courts ‘should
not assume that the parties agreed to arbitrate arbitrability unless there is
clear and unmistakable evidence that they did so.’” 3 Tasked with interpreting
the arbitration clause anew, we conclude that the parties have not clearly and
unmistakably delegated the question of arbitrability to an arbitrator.
Accepting that the district court had the power to decide arbitrability, we now
hold that the district court correctly determined that this case is not subject to
the arbitration clause and affirm.
                                              I.
       The origins of this dispute are well-known; the complaint in this case
was filed nearly seven years ago. 4 Plaintiff-Appellee Archer and White Sales,
Inc. is a family-owned company that distributes, sells, and services dental
equipment. It brought this antitrust suit against Defendant-Appellants Henry


       1 Archer & White Sales, Inc. v. Henry Schein, Inc., 

(2017), rev’d, 139 S.
Ct. 524 (2019).
       2 Henry Schein, Inc. v. Archer & White Sales, Inc., 

, 528 (2019).
       3 

(quoting First Options of Chi., Inc. v. Kaplan, 

, 944 (1995)).
       4 

Archer & 

.

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                                  No. 16-41674
Schein, Inc., Danaher Corporation, and a number of subsidiaries who
distribute and manufacture dental equipment. Archer claims that defendants
entered into an anticompetitive agreement to restrict Archer’s sales and to
boycott Archer. Archer’s complaint alleges violations of federal and Texas
antitrust law and seeks money damages and injunctive relief.
      The contract between Archer and Pelton and Crane, one of the
defendant’s predecessors-in-interest, (the “Dealer Agreement”) contains an
arbitration clause that is at the heart of this dispute. It provides:
            Disputes. This Agreement shall be governed by the
            laws of the State of North Carolina. Any dispute
            arising under or related to this Agreement (except for
            actions seeking injunctive relief and disputes related
            to trademarks, trade secrets, or other intellectual
            property of Pelton & Crane), shall be resolved by
            binding arbitration in accordance with the arbitration
            rules of the American Arbitration Association [(AAA)].
            The place of arbitration shall be in Charlotte, North
            Carolina.

After the case was referred to a magistrate judge, defendants invoked the
Federal Arbitration Act and moved to compel arbitration. Archer opposed that
motion, arguing that its complaint sought injunctive relief and the arbitration
clause explicitly excluded actions seeking such relief.
      The magistrate judge granted the motion, determining that the
arbitrability question should be left to an arbitrator because the Dealer
Agreement incorporated the AAA rules and there was at least a “plausible
construction” that would compel arbitration. Three years later, the district
court vacated that order and held that the court could decide the threshold
arbitrability question, reasoning that this action fell squarely within the
arbitration clause’s express exclusion of actions seeking injunctive relief.



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                                       No. 16-41674
       We affirmed. Relying on an exception then operative in at least four
circuits, 5 we concluded that defendants’ argument for arbitration was wholly
groundless. In our view, there was “no plausible argument that the arbitration
clause” applied to an action seeking injunctive relief. 6 Applying our precedent
in Douglas v. Regions Bank, 7 we determined that because the assertion of
arbitrability was implausible, the threshold arbitrability question should be
decided by the district court. 8 The Supreme Court reversed, eliminating that
exception and abrogating Douglas. Relying on the text of the Federal
Arbitration Act, the Supreme Court held that if a “contract delegates the
arbitrability question to an arbitrator, a court may not override the contract.” 9
The Court reaffirmed its holding in First Options, that “parties may delegate
threshold arbitrability questions to the arbitrator, so long as the parties’
agreement does so by ‘clear and unmistakable’ evidence.” 10 Sending the case
back to us, the Court instructed this court to determine whether clear and
unmistakable evidence of the parties’ delegation exists here. 11
                                              II.
       We review a ruling on a motion to compel arbitration de novo. 12 Our
inquiry proceeds in two steps. The first is a matter of contract formation—
“whether the parties entered into any arbitration agreement at all.” 13 Next we
turn to the question of contract interpretation and ask whether “this claim is


       5 See Henry 

–29 (collecting cases from the Fourth, Fifth, Sixth,
and Federal Circuits applying the exception).
       6 

.
       7 

(2014).
       8 

.
       9 Henry 

.
       10 

(quoting First 

).
       11 While both parties read the tea leaves in the questions asked by the Justices at oral

argument, attempting to shepherd them to support their own positions, the Court declined
to decide whether this agreement in fact delegated the arbitrability question.
       12 Kubala v. Supreme Prod. Servs., Inc., 

, 201 (5th Cir. 2012).
       13 

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                                         No. 16-41674
covered by the arbitration agreement.” 14 While ordinarily both steps are
questions for the court, 15 the parties can enter into an arbitration agreement
that delegates to the arbitrator the power to decide whether a particular claim
is arbitrable. 16 The Supreme Court has repeatedly made clear that “parties can
agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the
parties have agreed to arbitrate or whether their agreement covers a particular
controversy.” 17
       When considering whether there was a valid delegation, “the court’s
analysis is limited.” 18 As always, we ask if the parties entered into a valid
agreement. If they did, we turn to the delegation clause and ask “whether the
purported delegation clause is in fact a delegation clause—that is, if it evinces
an intent to have the arbitrator decide whether a given claim must be
arbitrated.” 19 When determining that intent, “[c]ourts should not assume that
the parties agreed to arbitrate arbitrability unless there is ‘clear and
unmistakable’ evidence that they did so.” 20 If there is a valid delegation, the
court must grant the motion to compel. 21
       The parties agree that there is a valid arbitration clause. With respect
to delegation, the parties’ arguments on remand sing a familiar tune. Archer
contends that there is no clear and unmistakable evidence that the parties
delegated arbitrability disputes to an arbitrator. The way the agreement is



       14 

(citing Will-Drill Res., Inc. v. Samson Res. Co., 

, 214 (5th Cir. 2003)).
       16 Howsam v. Dean Witter Reynolds, Inc., 

, 83 (2002).
       17 Rent-A-Center, West, Inc. v. Jackson, 

, 68–69 (2010) (citing 

–85).
       18 

.
       19 

(internal citation and alterations omitted).
       21 

. Of course, Kubala’s statement that “the motion to compel

arbitration should be granted in almost all cases”—where the argument for arbitration was
not wholly groundless—should now be read without the “almost.”
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                                    No. 16-41674
written, Archer asserts that the AAA rules (and resulting delegation) only
apply to disputes that fall outside of the arbitration clause’s carve-out for
actions seeking injunctive relief. Under their reading, if a case falls within the
carve-out, the agreement does not incorporate the AAA rules and the gateway
arbitrability question is not delegated to an arbitrator. On the other hand,
defendants argue that the agreement’s incorporation of the AAA rules ends the
inquiry. They maintain that the carve-out for actions seeking injunctive relief
does not trump the parties’ delegation. Defendants warn that to read the
contract as Archer suggests would require the court to make a merits
determination about the scope of the carve-out—whether this is indeed an
action seeing injunctive relief—to answer the delegation question, precisely
the category of inquiries a court is precluded from making in answering the
delegation question.
      “Unless the parties clearly and unmistakably provide otherwise, the
question of whether the parties agreed to arbitrate is to be decided by the court,
not the arbitrator.” 22 A contract need not contain an express delegation clause
to meet this standard. As we held in Petrofac, an arbitration agreement that
incorporates the AAA Rules “presents clear and unmistakable evidence that
the parties agreed to arbitrate arbitrability.” 23 Under AAA Rule 7(a), “[t]he
arbitrator shall have the power to rule on his or her own jurisdiction, including
any objections with respect to the existence, scope, or validity of the arbitration
agreement or to the arbitrability of any claim or counterclaim.” 24
      It is undisputed that the Dealer Agreement incorporates the AAA rules,
delegating the threshold arbitrability inquiry to the arbitrator for at least some


      22 AT&T Technologies, Inc. v. Commc’n Workers of Am., 

, 649 (1986).
      23  Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 

, 675 (5th
Cir. 2012).
       24 AM. ARBITRATION ASS’N, COMMERCIAL ARBITRATION RULES AND MEDICATION

PROCEDURES 13 (2013), https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.
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                                     No. 16-41674
category of cases. The parties dispute the relationship of the carve-out clause—
exempting actions seeking injunctive relief—and the incorporation of the AAA
rules. The agreement states that “[a]ny dispute arising under or related to this
Agreement (except for actions seeking injunctive relief and disputes related to
trademarks, trade secrets, or other intellectual property of [the predecessor]),
shall be resolved by binding arbitration in accordance with the arbitration rules
of the American Arbitration Association.”
      The agreement in Petrofac explicitly covered “all claims and disputes,”
containing no carve-out provision. 25 We have previously applied Petrofac to
arbitration provisions that do contain carve-out provisions. In Crawford, we
considered an arbitration agreement that incorporated the AAA Rules and also
contained a carve-out that nothing in the arbitration provision “shall prevent
either party from seeking injunctive relief for breach of th[e Agreement].” 26
Without specifically discussing the carve-out, we held that the Crawford
agreement’s incorporation of the AAA rules was “clear and unmistakable
evidence that the parties to the [] Agreement agreed to arbitrate




      25  

.
      26  Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 

, 256 (5th Cir.
2014). In that case, the Provider Agreement read as follows:
       Any and all disputes in connection with or arising out of the Provider
       Agreement by the parties will be exclusively settled by arbitration before a
       single arbitrator in accordance with the Rules of the American Arbitration
       Association. The arbitrator must follow the rule of Law, and may only award
       remedies provided for in the Provider Agreement . . . . Any such arbitration
       must be conducted in Scottsdale, Arizona, and Provider agrees to such
       jurisdiction, unless otherwise agreed to by the parties in writing. The expenses
       of arbitration, including reasonable attorney's fees, will be paid for by the party
       against whom the award of the arbitrator is rendered . . . . Arbitration shall be
       the exclusive and final remedy for any dispute between the parties in
       connection with or arising out of the Provider Agreement; provided, however,
       that nothing in this provision shall prevent either party from seeking
       injunctive relief for breach of this Provider Agreement in any state or federal
       court of law . . . .
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                                      No. 16-41674
arbitrability.” 27 Under the terms of that agreement, the gateway arbitrability
question was delegated to the arbitrator. The Ninth Circuit considered a
similar agreement in Oracle Am., Inc. v. Myriad Group A.G. 28 The arbitration
clause adopted arbitration rules delegating arbitrability issues to the
arbitrator and contained a carve-out for certain intellectual property and
licensing claims. 29 Because the claims carved-out by that agreement “ar[ose]
out of or relat[ed] to” the Source License, and the agreement explicitly provided
that any claim arising out of the Source License was subject to arbitration, the
Ninth Circuit held that Oracle’s carve-out argument “conflate[ed] the scope of
the arbitration clause . . . with the question of who decides arbitrability.” 30
       The Second Circuit has also considered an arbitration clause that
incorporated the AAA rules and exempted certain claims from arbitration. 31



       27  

       28  

, 1072–75 (9th Cir. 2013).
        29 The agreement at issue stated, in relevant part:

        Any dispute arising out of or relating to this License shall be finally settled by
        arbitration as set out herein, except that either party may bring any action, in
        a court of competent jurisdiction (which jurisdiction shall be exclusive), with
        respect to any dispute relating to such party’s Intellectual Property Rights or
        with respect to Your compliance with the TCK license. Arbitration shall be
        administered: (i) by the American Arbitration Association (AAA), (ii) in
        accordance with the rules of the United Nations Commission on International
        Trade Law (UNCITRAL) (the “Rules”) in effect at the time of arbitration as
        modified herein; and (iii) the arbitrator will apply the substantive laws of
        California and United States. Judgment upon the award rendered by the
        arbitrator may be entered in any court having jurisdiction to enforce such
        award.

        30 

. The clause in Oracle provided that “any claim arising out

of the Source License shall be settled by arbitration” but exempted “any dispute relating to
such party’s Intellectual Property Rights or with respect to [Myriad’s] compliance with the
TCK license.” 

The court noted that the issue with Oracle’s carve-out argument
was that the two categories of exempted claims by definition were claims arising out of or
relating to the Source License, which were explicitly subject to arbitration. 

No
such circularity exists in the contract at issue here.
        31 NASDAQ OMX Grp., Inc. v. UBS Securities, LLC, 

(2d Cir. 2014).

That agreement provided in relevant part:
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                                       No. 16-41674
The court noted that it had “found the ‘clear and unmistakable’ provision
satisfied where a broad arbitration clause expressly commits all disputes to
arbitration, concluding that all disputes necessarily includes disputes as to
arbitrability.” 32 However, the parties in NASDAQ had not clearly and
unmistakably delegated arbitrability “where a broad arbitration clause is
subject to a qualifying provision that at least arguably covers the present
dispute.” 33 Because there was ambiguity as to whether the parties intended to
have arbitrability questions decided by an arbitrator—because the dispute
arguably fell within the carve-out—the court held the arbitrability question
was for the court to decide. 34
       Defendants urge that Crawford controls and the only difference between
that arbitration agreement and the one here is syntax—the ordering of words.
But that is precisely the point—the placement of the carve-out here is
dispositive. We cannot re-write the words of the contract. The most natural
reading of the arbitration clause at issue here states that any dispute, except
actions seeking injunctive relief, shall be resolved in arbitration in accordance
with the AAA rules. The plain language incorporates the AAA rules—and
therefore delegates arbitrability—for all disputes except those under the carve-




        A. Except as may be provided in the NASDAQ OMX Requirements, all claims,
        disputes, controversies, and other matters in question between the Parties to this
        Agreement and the Parties’ employees, directors, agents and associated persons
        arising out of, or relating to this Agreement, or to the breach hereof, shall be settled
        by final binding arbitration in accordance with this Agreement and the following
        procedure or such other procedures as may be mutually agreed upon by the Parties.
        B. Except as otherwise provided herein or by agreement of the Parties, any arbitration
        proceeding shall be conducted in accordance with the Commercial Arbitration Rules
        of the American Arbitration Association or in accordance with such other rules and
        procedures as are agreed to by the Parties.

        32 

        33 

at 1032.

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                                      No. 16-41674
out. Given that carve-out, we cannot say that the Dealer Agreement evinces a
“clear and unmistakable” intent to delegate arbitrability.
       We are mindful of the Court’s reminder that “[w]hen the parties’ contract
delegates the arbitrability question to an arbitrator, the courts must respect
the parties’ decision as embodied in the contract.” 35 But we must also heed its
warning that “courts ‘should not assume that the parties agreed to arbitrate
arbitrability unless there is clear and unmistakable evidence that they did
so.’” 36 The parties could have unambiguously delegated this question, but they
did not, and we are not empowered to re-write their agreement.
                                            III.
       In addition to disputing whether an arbitrator must decide the gateway
question of arbitrability, the parties disagree about whether the underlying
dispute is arbitrable at all. Accepting that the district court had the power to
decide arbitrability, we next examine whether it correctly determined that the
instant action is not subject to the arbitration clause. We do so against the
backdrop of a strong presumption in favor of arbitration, 37 yet we also remain
mindful of the fact that the FAA “does not require parties to arbitrate when
they have not agreed to do so, nor does it prevent parties who do agree to
arbitrate from excluding certain claims from the scope of their arbitration
agreement.” 38
       The magistrate judge found that while “[o]n the most superficial level,
this lawsuit is clearly an action seeking injunctive relief since it does seek that




       35 Henry Schein, 

.
       36 

).
       37 See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 

, 24–25

(1983) (“[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues
should be resolved in favor of arbitration . . . .”).
       38 Volt Info. Scis., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ., 

, 478 (1989) (internal citations omitted).
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                                        No. 16-41674
relief,” there was also “a plausible construction [of the Dealer Agreement]
calling for arbitration.” The magistrate judge read the contract to leave open
“the question of whether the exception for actions seeking injunctive relief
should be limited to actions for an injunction in aid of arbitration or to enforce
an arbitrator’s award.”
       The district court, on the other hand, found that the carve-out for
“‘actions seeking injunctive relief’ is clear on its face—any action seeking
injunctive relief is excluded from mandatory arbitration.” Thus, the provision’s
plain language includes all actions seeking injunctive relief, not a more limited
category of cases. 39 In so holding, the district court pointed out that the carve-
out clause is not part of the AAA’s suggested language, and that “[s]uch an
intentional drafting effort . . . is worthy of the court’s notice.” The court declined
to “re-write the terms of the Parties’ agreement to accommodate a party—
notably the party that drafted the agreement—that could have negotiated for
more precise language,” and held that the arguments for arbitrability were
“wholly without merit based on the plain language of the arbitration clause
itself.”
       Defendants urge that, where an arbitration clause contains a carve-out
for injunctive relief and one party files a complaint seeking both injunctive
relief and damages, the court should read the carve-out to permit injunctive
relief only as a preliminary matter to preserve the status quo pending
arbitration or on a permanent basis after the plaintiff secures an arbitration
award in its favor. They suggest that the court must send the damages clause
to arbitration, even if it results in piecemeal litigation. In their view, that



       39 The district court observed, “no textual basis exists for reading the phrase ‘actions
seeking injunctive relief’ as ‘actions seeking injunctive relief if such injunctions are in aid of
arbitration.’ Further, the clause does not limit the exclusion to actions seeking ‘only’
injunctive relief, and the Court also declines to read that limitation into the document.”
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                                      No. 16-41674
reading of the clause preserves the parties’ right to arbitrate the damages
claims while preserving the court’s role in any injunctive proceedings. They
warn that Archer’s interpretation allows a party to “tack on” a vague request
for injunctive relief to evade arbitration.
       Archer counters that the plain language of the clause makes clear that
the parties did not agree to arbitrate actions that include a request for
injunctive relief—therefore there is no plausible argument that the arbitration
clause applies. Archer emphasizes that arbitration agreements are as
enforceable as other contracts, but not more so, and the court cannot reach
beyond the plain and unambiguous language in the agreement.
       We note first that the arbitration clause creates a carve-out for “actions
seeking injunctive relief.” It does not limit the exclusion to “actions seeking
only injunctive relief,” nor “actions for injunction in aid of an arbitrator’s
award.” Nor does it limit the carve-out to claims for injunctive relief. Such
readings find no footing within the four corners of the contract. Under North
Carolina law, “[w]hen the language of a contract is clear and unambiguous,
effect must be given to its terms, and the court, under the guise of construction,
cannot reject what the parties inserted or insert what the parties elected to
omit.” 40 The mere fact that the arbitration clause permits Archer to avoid
arbitration by adding a claim for injunctive relief does not change the clause’s
plain meaning. “While ambiguities in the language of the agreement should be
resolved in favor of arbitration, we do not override the clear intent of the
parties, or reach a result inconsistent with the plain text of the contract, simply




       40 Procar II, Inc. v. Dennis, 

, 371 (N.C. Ct. App. 2012) (quoting Taylor
v. Gibbs, 

, 365, (1966)).
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                                       No. 16-41674
because the policy favoring arbitration is implicated.” 41 Fundamentally,
defendants ask us to rewrite the unambiguous arbitration clause. We cannot.
       Defendants urge that this reading would lead to absurd results, where
one party could unilaterally evade the agreement to arbitrate with an
attenuated request for injunctive relief. This argument overreaches. Even if
we re-wrote the carve-out clause to apply only to actions seeking significant
injunctive relief—which we cannot—this particular action would still fall
within that exception. Archer’s complaint alleges multiple continuing
violations of federal and state antitrust laws. 42 As the district court correctly
noted, the proper vehicle to argue Archer failed to state a claim for relief is a
motion under Rule 12. We cannot address the underlying merits of Archer’s
claim at this stage. It is enough to note that the current action is indeed an
“action seeking injunctive relief.”




       41   E.E.O.C. v. Waffle House, 

, 294 (2002) (emphasis added) (internal
citations omitted).
         42 In their initial briefing to this court and in their supplemental brief on remand,

defendants contend that Archer is no longer entitled to injunctive relief because, during the
pendency of this litigation, their contractual relationship with Archer ended. In support of
this proposition, defendants cite cases where this court has held that plaintiffs are no longer
entitled to injunctive relief. In Hendricks, the court held that enjoining a plaintiff’s former
employer from future ERISA violations was not appropriate. Hendricks v. UBS Fin. Servs.,
Inc., 546 F. App’x 514, 520 (5th Cir. 2013) (per curiam). In Glanville, a district court found
the plaintiffs had no standing to pursue a claim for declaratory and injunctive relief based on
their purported misclassification as independent contractors because they no longer had any
employment relationship with the defendants and thus could not allege future harm.
Glanville v. Dupar, Inc., 

, 602 (S.D. Tex. 2010). In its initial brief, Archer
responded that these cases are inapposite because they do not involve antitrust violations.
Archer notes that other circuits have upheld injunctive relief in private antitrust actions even
where the specific conspiracy alleged has ended. See Wilk v. Am. Med. Ass’n, 

,
378 (7th Cir. 1990) (affirming the grant of an injunction aimed at remedying lasting effects
of an illegal boycott). We need not decide this question here, as the arbitrability question
turns only on whether the existing action as a whole constitutes an “action seeking injunctive
relief.”
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                                 No. 16-41674
                                      IV.
      Because this action is not subject to mandatory arbitration, we do not
reach Archer’s alternative argument that third parties to the arbitration clause
cannot enforce such an arbitration clause. We affirm the district court’s order
denying defendants’ motions to compel arbitration.




                                      14