IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41674

ARCHER AND WHITE SALES, INCORPORATED, 

 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 

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2019

Lyle W. Cayce

Clerk

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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., 878 F.3d 488 (2017), rev’d, 139 S. 

Ct. 524 (2019).

2 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).

3 Id. at 531 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).

4 Id. at 528–29; Archer & White, 878 F.3d at 491.

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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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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 Schein, 139 S. Ct. at 528–29 (collecting cases from the Fourth, Fifth, Sixth, 

and Federal Circuits applying the exception).

6 Archer, 878 F.3d at 497.

7 757 F.3d 460 (2014).

8 Archer, 878 F.3d at 497.

9 Henry Schein, 139 S. Ct. at 529.

10 Id. at 530 (quoting First Options, 514 U.S. at 944).

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., 830 F.3d 199, 201 (5th Cir. 2012).

13 Id.

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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 Id. 15 Id. (citing Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)).

16 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). 17 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (citing Howsam, 537 

U.S. at 83–85).

18 Kubala, 830 F.3d at 202.

19 Id.

20 First Options, 514 U.S. at 944 (internal citation and alterations omitted). 

21 Kubala, 830 F.3d at 202. 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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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., 475 U.S. 643, 649 (1986).

23 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 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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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 Petrofac, 687 F.3d at 674.

26 Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 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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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 Id. at 263. 28 724 F.3d 1069, 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.

Id. at 1071. 

30 Oracle, 724 F.3d at 1076. 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.” Id. at 1075–76. 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. Id. at 1076. No 

such circularity exists in the contract at issue here.

31 NASDAQ OMX Grp., Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. 2014). 

That agreement provided in relevant part: 

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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.

Id. at 1016.

32 Id. at 1031.

33 Id.

34 Id. at 1032.

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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, Inc., 139 S. Ct. at 531.

36 Id. (quoting First Options, 514 U.S. at 944).

37 See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 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., 489 U.S. 

468, 478 (1989) (internal citations omitted). 

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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 carveout 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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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, 721 S.E.2d 369, 371 (N.C. Ct. App. 2012) (quoting Taylor 

v. Gibbs, 268 N.C. 363, 365, (1966)).

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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, 534 U.S. 279, 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., 727 F.Supp.2d 596, 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, 895 F.2d 352, 

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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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. 

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