IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40692 

consolidated with

No. 13-40693

BILL HENDRICKS; AUBREY B. STACY,

Plaintiffs - Appellees

v.

UBS FINANCIAL SERVICES, INCORPORATED,

Defendant - Appellant

______________________________________________

MARK T. EDDINGSTON; JEFFREY M. DAVIS; ELRIDGE NICHOLAS 

BOLLICH; RAY A. COX, 

 Plaintiffs - Appellees

v.

UBS FINANCIAL SERVICES, INCORPORATED, 

 Defendant - Appellant

Appeals from the United States District Court

for the Eastern District of Texas

USDC Nos. 2:12-CV-606; 2:12-CV-422

Before REAVLEY, ELROD and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

November 11, 2013

Lyle W. Cayce

Clerk

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PER CURIAM:*

Defendant-Appellant (“UBS”) appeals the district court’s denial of its 

motions to compel arbitration. Former UBS financial advisors and branch 

managers (the “Plaintiffs”) sued UBS alleging that it violated ERISA by 

deeming certain funds in the Plaintiffs’ PartnerPlus Plans (collectively, the 

“PartnerPlus Plan”) forfeited upon their departure from the company. Because 

the Plaintiffs agreed in the Branch Manager Compensation Plan and Financial 

Advisor Compensation Plan (collectively, the “Compensation Plan”) to 

arbitrate their claim, we REVERSE the denial of UBS’s motions to compel 

arbitration and REMAND for entry of an order compelling arbitration.

I. Factual and Procedural History

During the course of the Plaintiffs’ employment with UBS, the company 

issued annual Compensation and PartnerPlus Plans. The Compensation Plan

provides information concerning compensation, benefits, service and merits 

awards, and financial programs for UBS’s branch managers and financial 

advisors. The versions of the Compensation Plan relevant to this dispute also 

contained arbitration and class waiver provisions. Significantly, these 

provisions are located in an independent section of the Compensation Plan

entitled “Arbitration.” Each of the Plaintiffs signed Letters of Understanding 

and Acknowledgements through which they acknowledged receipt of the 

Compensation Plan and agreed to be bound by the terms therein.1

UBS also issued the PartnerPlus Plan, which is one of the benefits plans 

described in the Compensation Plan’s summary sections. The PartnerPlus 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 The Letters of Understanding also include arbitration and class waiver provisions 

that are substantially similar to the provisions in the Compensation Plan.

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Plan sought “to retain and motivate” certain employees by “providing enhanced 

financial awards . . . and . . . permitting the voluntary deferral of Compensation 

for a fixed period of years.” The relevant versions of the PartnerPlus Plan 

contain an arbitration provision, but they do not contain a class waiver.

The Plaintiffs and UBS made contributions to the PartnerPlus Plan. The 

Plaintiffs’ contributions vested immediately, but UBS’s contributions began 

vesting six years after the contribution. In the event that a plan participant 

separated from UBS, the PartnerPlus Plan provided that the unvested 

contributions would be forfeited unless there was a “qualifying separation.” A 

qualifying separation required the plan participant to sign a “separation 

agreement,” which contained “non-competition, non-solicitation and nondisclosure provisions.” 

When the Plaintiffs departed UBS and refused to sign separation 

agreements, UBS determined that its unvested contributions to the

PartnerPlus Plan were forfeited. The Plaintiffs sued UBS, maintaining that

the PartnerPlus Plan is an employee retirement plan governed by ERISA and 

that the vesting and forfeiture provisions violated ERISA. The Plaintiffs 

requested “all appropriate relief under 29 U.S.C. § 1132(a)(3), including an 

injunction against any act or practice which violates ERISA.” The Plaintiffs 

sought to represent two classes of plaintiffs—one group of former branch 

managers (Hendricks v. UBS Fin. Servs., No. 2:12-CV-606 (E.D. Tex.)) and one 

group of former financial advisors (Eddingston v. UBS Fin. Servs., No. 2:12-

CV-422 (E.D. Tex.)).

UBS moved to compel arbitration in both cases. The magistrate judge 

denied the motions, concluding that the arbitration clause in the PartnerPlus 

Plan did not require arbitration of the Plaintiffs’ claim because the clause 

“clearly [did] not extend to the arbitration of class claims.” Further, after 

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assuming for purposes of the motions to compel that the PartnerPlus Plan was 

a “pension plan” under ERISA, the magistrate judge concluded that the 

arbitration clause in the Compensation Plan qualified as an “amendment” to 

the PartnerPlus Plan that did not comport with ERISA’s requirements and, 

therefore, could not be enforced.

The district court denied reconsideration, and UBS timely appealed. We

granted UBS’s motion to consolidate the Hendricks and Eddingston cases. The 

district court subsequently granted the Plaintiffs’ motions for class 

certification, and UBS separately filed a petition to appeal the certification 

ruling which remains pending.2

II. Jurisdiction and Standard of Review

We have jurisdiction over the appeal of the district court’s denial of 

UBS’s motions to compel arbitration pursuant to 9 U.S.C. § 16. Green Tree 

Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 85 (2000); Nicholas v. KBR, Inc., 565 

F.3d 904, 907 (5th Cir. 2009) (recognizing this court has jurisdiction over a 

denial of a motion to compel arbitration “even though the district court’s denial 

of [such a] motion . . . is an interlocutory ruling”). We review the district court’s 

denial of a motion to compel arbitration de novo. Am. Heritage Life Ins. Co. v. 

Lang, 321 F.3d 533, 536 (5th Cir. 2003).

III. Discussion

The Federal Arbitration Act (“FAA”) provides that 

A written provision in . . . a contract evidencing a transaction 

involving commerce to settle by arbitration a controversy 

thereafter arising out of such contract or transaction, or the refusal 

to perform the whole or any part thereof, or an agreement in 

2 UBS’s petition to appeal the district court’s grant of class certification is being held

in abeyance pending the outcome of this appeal.

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writing to submit to arbitration an existing controversy arising out 

of such a contract, transaction, or refusal, shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at 

law or in equity for the revocation of any contract. 

9 U.S.C. § 2. The Plaintiffs do not contend that the contracts in question are 

subject to “revocation.” The Supreme Court has repeatedly held that the FAA

“reflect[s] . . . a ‘liberal federal policy favoring arbitration.’” AT&T Mobility 

LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (quoting Moses H. Cone Mem’l 

Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983)); see also Buckeye Check 

Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006) (explaining that § 2 of the 

FAA “embodies the national policy favoring arbitration”).

Indeed, the FAA “reflects the overarching principle that arbitration is a 

matter of contract” and requires us to “rigorously enforce arbitration 

agreements according to their terms.” Am. Exp. Co. v. Italian Colors Rest., 133 

S. Ct. 2304, 2309 (2013) (citation and internal quotation marks omitted). This 

strong policy favoring arbitration “holds true for claims that allege a violation 

of a federal statute [such as ERISA], unless the FAA’s mandate has been 

overridden by a contrary congressional command.” Id. (citation and internal 

quotation marks omitted).

Against this backdrop, we assess whether “the parties have agreed to 

arbitrate a particular claim . . . [by] determin[ing]: (1) whether there is a valid 

agreement to arbitrate between the parties; and (2) whether the dispute in 

question falls within the scope of that arbitration agreement.” Pers. Sec. & 

Safety Sys. Inc. v. Motorola Inc., 297 F.3d 388, 392 (5th Cir. 2002) (citation and 

internal quotation marks omitted). “In view of the policy favoring arbitration, 

we ordinarily resolve doubts concerning the scope of coverage of an arbitration 

clause in favor of arbitration.” Id. (citation and internal quotation marks 

omitted); see also Mercury Const., 460 U.S. at 24–25. Consequently, “a valid 

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agreement to arbitrate applies ‘unless it can be said with positive assurance 

that [the] arbitration clause is not susceptible of an interpretation which would 

cover the dispute at issue.’” Motorola, 297 F.3d at 392 (alteration in original) 

(quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990)). With 

these principles in mind, we turn to the contracts at issue. 

A. The Compensation Plan’s Arbitration Clause is a Valid and 

Enforceable Agreement to Arbitrate

The Compensation Plan’s arbitration clause provides that “[w]ith the 

exception of claims for injunctive relief . . . , any disputes . . . including claims 

concerning compensation, benefits or other terms or conditions of employment 

and termination of employment . . . will be determined by arbitration.”

Plaintiffs argue that this arbitration clause does not apply to their claim for 

relief under the PartnerPlus Plan because the Compensation Plan is merely a 

“summary brochure” that serves only to summarize certain benefit plans, such 

as the PartnerPlus Plan. As a result, according to the Plaintiffs, the 

Compensation Plan lacks any enforceable terms and cannot contradict any 

provisions in the PartnerPlus Plan. Examining the provisions, we conclude as 

a matter of law that the arbitration provision in the Compensation Plan is not 

a “summary” of any benefit plan but rather is an independent and enforceable 

provision. 

Nevertheless, the Plaintiffs further urge that the parties’ agreements in 

the Compensation Plan cannot be enforced because the Compensation Plan

conflicts with or improperly seeks to modify the PartnerPlus Plan in violation 

of ERISA. They identify three potential conflicts: (1) the Compensation Plan’s 

arbitration provision applies to “all disputes” except for claims for injunctive 

relief, whereas the PartnerPlus Plan’s arbitration clause applies only to claims 

arising out of the PartnerPlus Plan and does not exempt claims for injunctive 

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relief; (2) the PartnerPlus Plan’s arbitration clause provides for the application 

of New York law, whereas the Compensation Plan’s provision requires the 

application of New Jersey law; and (3) the PartnerPlus Plan’s arbitration 

clause does not include a class waiver whereas the Compensation Plan does.

With regard to the first two “conflicts” alleged by the Plaintiffs, we 

observe that regardless of whether the PartnerPlus Plan qualifies as an ERISA 

plan, the mere presence of differences between the terms in the PartnerPlus 

Plan and the Compensation Plan identified by the Plaintiffs does not render 

one of them void. Both plans can coexist by providing for arbitration based on 

different scenarios.3 

Plaintiffs focus primarily on the “conflict” in the fact that the 

Compensation Plan expressly waives class actions, while the PartnerPlus Plan 

does not. Based on the Compensation Plan, UBS argues that the Plaintiffs 

must arbitrate individually, rather than proceed on a class basis. The 

Plaintiffs maintain that in light of Financial Industry Regulatory Authority 

(“FINRA”) Rule 13204(a)(1)’s prohibition against class litigation and the 

PartnerPlus Plan’s lack of a class waiver, their claims cannot be arbitrated 

and, therefore, must proceed as a class in federal court. We conclude that the 

PartnerPlus Plan’s lack of a class waiver does not relieve the Plaintiffs from 

their independent obligation to submit their claim to arbitration based on the 

Compensation Plan. Nevertheless, having concluded that the Compensation 

Plan’s arbitration provision requires the Plaintiffs to submit their claim to 

3 Although arguing that one plan references New Jersey law and the other New York 

law, Plaintiffs fail to explain how these two states’ laws conflict in any way meaningful here 

where a violation of federal law is alleged. Thus, we have a “false conflict.” See Kevin M. 

Ehringer Enters., Inc. v. McData Servs. Corp., 646 F.3d 321, 326 n.2 (5th Cir. 2011) (observing 

that “where all potentially applicable states’ laws do not differ in material respect, the 

claimed conflict is a ‘false conflict’” (citing Hininger v. Case Corp., 23 F.3d 124, 126 (5th Cir.

1994))).

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arbitration, we leave for the FINRA arbitration panel to decide whether the 

class waiver requires the Plaintiffs to arbitrate on an individual basis.4 See

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 451 (2003) (plurality) (concluding 

that under the parties’ agreement, “the question—whether the agreement 

forbids class arbitration—is for the arbitrator to decide [because] [t]he parties 

agreed to submit to the arbitrator ‘[a]ll disputes, claims, or controversies 

arising from or relating to this contract or the relationships which result from 

this contract’” (alteration in original) (emphasis omitted) (quoting arbitration 

clause)); Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 

671, 675 (5th Cir. 2012) (explaining that when the arbitration rules provide 

the arbitration panel with authority to determine the scope of its own 

jurisdiction, questions concerning arbitrability should be made by the 

arbitration panel); see also FINRA Rule 12409 (“The panel has the authority 

to interpret and determine the applicability of all provisions under the Code. 

Such interpretations are final and binding upon the parties.”).

B. The Scope of the Compensation Plan’s Arbitration Clause 

Covers the Plaintiffs’ Claim

Turning to the second prong of the test for compelling arbitration, the 

parties do not contest that the nature of the dispute between them falls within 

the Compensation Plan’s arbitration clause. This arbitration clause provides 

that the parties will arbitrate “any disputes” related to compensation and 

employment, including disputes under ERISA. The Plaintiffs’ claims arose as 

4 The arbitration clauses in both the Compensation and PartnerPlus Plans provide 

that the arbitration should proceed under the FINRA Rules. FINRA Rule 13204(a)(1) 

provides that a “[c]lass action claim[] may not be arbitrated.” However, there are certain 

exceptions to this provision, including that it does not apply when a “member of the certified 

or putative class elects not to participate in the class.” See FINRA Rule 13204(a)(4). Having 

concluded that the arbitration clause in the Compensation Plan requires arbitration, we 

leave for the arbitrator to determine this rule’s potential effect on the arbitration proceedings.

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a result of their employment with UBS, and they seek to recover compensation 

they allege is due to them following their departure from UBS. Specifically, 

the Plaintiffs’ complaint alleges that they are “entitled to recover all amounts 

to which they [are] entitled under the [PartnerPlus] Plan, including all Firm 

Contributions, Market Interest and Turbo Interest purportedly forfeited by 

them” following their departure from UBS. Therefore, the Plaintiffs’ 

compensation claim falls squarely within the scope of the arbitration clause.

However, based on the arbitration clause’s application to “all disputes” 

except “claims for injunctive relief,” the Plaintiffs argue that their claim is not 

arbitrable because they seek in their complaint—in addition to all equitable 

relief available under § 1132(a)(3)—“an injunction against any act or practice 

which violates ERISA.” Nonetheless, this exception does not preclude 

arbitration of the entirety of the Plaintiffs’ claim because the Plaintiffs have 

not confined the relief they seek to merely an injunction, but rather they seek

to recover any relief available under § 1132(a)(3).

Furthermore, as we have previously held in the context of class action 

claims for injunctive relief, an injunction is not appropriate when the plaintiff 

would not benefit from prospective relief, the plaintiff’s relationship with the 

defendant has ended, or the plaintiff essentially seeks monetary damages. See, 

e.g., Casa Orlando Apartments, Ltd. v. Fed. Nat. Mortg. Ass’n, 624 F.3d 185, 

200 (5th Cir. 2010); Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 978 (5th Cir. 

2000) (observing that potential class members “who do not face further harm 

from [the defendant’s] actions . . . have nothing to gain from an injunction”); 

see also Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (“[W]hen a plaintiff 

is seeking injunctive or declaratory relief, a plaintiff must allege facts from 

which it appears there is a substantial likelihood that he will suffer injury in 

the future . . . [and] from which the continuation of the dispute may be 

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reasonably inferred.”)(citation omitted). Here, each of these circumstances 

counsel against the availability of injunctive relief. Specifically, the Plaintiffs 

have failed to identify any prospective relief that they seek through an 

injunction, their relationship (and that of the class members they seek to 

represent) with UBS has ended,5 and they unabashedly seek ultimately to 

recover monetary relief.6

Nevertheless, in light of the Plaintiffs’ broad request for all appropriate

equitable relief under § 1132(a)(3) and our conclusion that the dispute must, 

in the first instance, be sent to arbitration, we leave the initial decision of the 

scope of arbitration to the arbitration panel. See Bazzle, 539 U.S. at 451; 

Petrofac, 687 F.3d at 675.

IV. Conclusion

The arbitration clause in the Compensation Plan represents a separate

and independent agreement between the Plaintiffs and UBS to submit “any 

disputes” concerning compensation and employment to arbitration. 

Regardless of whether the arbitration clause in the PartnerPlus Plan would 

otherwise require arbitration, the arbitration provision in the Compensation 

5 The named Plaintiffs are no longer employed by UBS and they limit the scope of 

the class they seek to represent to branch managers and financial advisors “who left the 

employment” of UBS. Further, the Plaintiffs’ claim is necessarily limited to individuals who 

have ended their relationship with UBS because the violation of ERISA that they allege only

occurs after there has been a non-qualifying separation between UBS and the PartnerPlus 

Plan participant, which results in UBS determination that certain contributions are forfeited.

6 The Plaintiffs’ counsel admitted before the district court and during oral argument 

before this court that the Plaintiffs’ purpose in this litigation is to secure monetary damages.

It is clear that the Plaintiffs’ claim at its core is a claim for monetary damages cabined within 

a claim for injunctive relief. As the Supreme Court has observed, an injunction requiring a 

defendant essentially to pay monetary damages is not a form of relief that was typically 

available in equity and, therefore, is not available through § 1132(a)(3). See Great-W. Life & 

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210–11 (2002). 

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Plan is enforceable and its scope covers the Plaintiffs’ claim.7 Accordingly, we 

REVERSE the denial of UBS’s motions to compel arbitration and REMAND 

for entry of an order compelling arbitration.

7 In the final footnote of their brief, the Plaintiffs explain that they argued to the 

district court “that even if there had been an agreement to arbitrate 29 U.S.C. § 1132(a)(3) 

claims, such an agreement would be barred by the clear congressional command of ERISA. 

Whether Congress intended to prohibit the arbitration of section 1132(a)(3) claims is 

indisputably an open question in this Circuit.” However, the Plaintiffs failed to present any

argument or authorities to this court describing the alleged congressional command under 

ERISA that would preclude arbitration of their claim and, therefore, they have waived any 

argument on this issue. See Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 356 n.7 (5th 

Cir. 2003) (holding that an argument raised only in a footnote is waived); Douglas W. ex rel. 

Jason D.W. by Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998) 

(“[F]ailure to provide any legal or factual analysis of an issue on appeal waives that issue.”). 

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