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USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 1 of 76 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-13546 ____________________ NALCO COMPANY LLC, a Delaware Limited Liability Company, Plaintiff-Appellee, versus LAURENCE BONDAY, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:21-cv-00727-JLB-NPM ____________________ USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 2 of 76 2 Opinion of the Court 22-13546 Before BRANCH, LUCK, and TJOFLAT, Circuit Judges. PER CURIAM: Laurence Bonday, a former employee of Nalco Company LLC, filed an arbitration demand against Nalco, alleging it violated its severance plan by demoting him without offering him severance pay. Nalco responded that a court needed to determine the scope of the arbitration agreement between it and Bonday before the ar- bitration could proceed. But before a court could reach the arbi- trability issue, the arbitrator concluded Bonday’s severance claim fell outside the scope of the arbitration agreement and awarded him nothing on that claim. Instead, the arbitrator awarded Bonday $129,465.50 on a claim he never raised: that Nalco discriminated against him in violation of the Employee Retirement Income Secu- rity Act of 1974. Nalco moved to vacate the arbitration award, arguing that the arbitrator “exceeded [her] powers” by deciding the scope of the arbitration agreement and “conjuring up claims that Bonday never made.” The district court granted the motion vacating the arbitra- tion award, concluding the arbitrator exceeded her powers by (1) interpreting the scope of the arbitration agreement and finding Bonday’s claims arbitrable, and (2) awarding Bonday relief on an ERISA discrimination claim he never raised. Because we agree with the district court’s second conclusion that the arbitrator ex- ceeded her powers by awarding Bonday relief on a claim he never raised, we affirm. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 3 of 76 22-13546 Opinion of the Court 3 FACTUAL BACKGROUND AND PROCEDURAL HISTORY Bonday began working for Nalco in 2005. When he joined the company, Bonday signed two agreements related to his right to seek severance pay—a severance plan and an arbitration agree- ment. The severance plan—formed under ERISA—entitled Bon- day to severance pay if his job at Nalco was eliminated. Under the plan, Bonday could file a claim with Nalco for severance pay if the company reorganized or eliminated his job. If Nalco denied the claim, Bonday could appeal the decision internally. Bonday and Nalco’s arbitration agreement, meanwhile, re- quired him and the company to submit “all claims or controversies” between them that “alleg[ed] violations of federal, state, local[,] or common law” to arbitration before the American Arbitration As- sociation. But there were two exceptions. “[C]laims related to . . . controversies over awards of benefits or incentives under the [c]ompany’s . . . employee benefits plans or welfare plans that con- tain an appeal procedure” were not arbitrable under the agree- ment. And questions about “the enforceability, revocability[,] or validity” of the arbitration agreement “[could] only be resolved by a court.” The severance plan and the arbitration agreement came into play fourteen years later, in 2019, when Nalco eliminated Bonday’s position and demoted him to a consultant. Bonday wasn’t inter- ested in the new consulting job, and he thought the demotion en- titled him to severance pay. So, Bonday asked the company’s USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 4 of 76 4 Opinion of the Court 22-13546 human resources department if he could receive severance pay and leave the company. The department denied Bonday’s request. Bonday appealed the denial to the vice president of human re- sources, but the vice president upheld the denial. With his sever- ance request denied, Bonday quit his job at Nalco. Six months later, he filed an arbitration demand with the American Arbitration Association, alleging that Nalco violated its severance plan by not offering him severance pay after demoting him to a consultant. Bonday’s arbitration demand requested only one form of relief: that Nalco “follow the . . . [s]everance p[lan]” and give him severance pay. To support his severance claim, Bon- day alleged that Nalco offered severance pay to two similar employ- ees who were also demoted to the consultant position. Before an arbitrator was appointed, Nalco appeared and asked the Association to dismiss Bonday’s arbitration demand be- cause his severance claim was a “claim[] related to . . . [a] con- trovers[y] over awards of benefits or incentives under” an “em- ployee benefits plan[] or welfare plan[] that contain[ed] an appeal procedure,” which Nalco argued placed it outside the scope of the arbitration agreement since the company’s severance plan included an appeal procedure. The Association responded that Nalco would have to raise its arbitrability argument to the arbitrator once ap- pointed—or, alternatively, to a court. Nalco chose to go to federal court. The company sought a declaratory judgment that Bonday’s severance claim was not arbi- trable under the arbitration agreement. Nalco then appeared USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 5 of 76 22-13546 Opinion of the Court 5 before the arbitrator and moved for a stay until the district court determined whether Bonday’s severance claim was arbitrable. The arbitrator denied the stay motion and found that Bon- day’s demand raised arbitrable claims. The arbitrator assumed that Nalco was correct that Bonday’s severance claim wasn’t arbitrable under the arbitration agreement. Still, in the arbitrator’s view, Bon- day’s demand raised “other possible claims.” Specifically, the arbi- trator read Bonday’s demand as “possibl[y]” raising an ERISA dis- crimination claim. Bonday “possibl[y]” raised that claim, the arbi- trator explained, because the severance plan was formed under ERISA, and Bonday alleged that other employees were offered sev- erance pay when he wasn’t. The arbitrator concluded that this “possible” ERISA discrimination claim was arbitrable under the ar- bitration agreement and decided the arbitration would proceed. Proceed it did. The arbitrator held a hearing, and, at the end of it, she issued a final award on Bonday’s possible ERISA discrim- ination claim. The arbitrator agreed with Nalco that Bonday’s sev- erance claim was not arbitrable. But the arbitrator awarded Bon- day “$122,870 in equitable relief,” along with $6,595.50 in fees and costs, based on the ERISA discrimination claim she read into the demand. In response, Nalco returned to the district court and moved to vacate the award, arguing that the arbitrator “exceeded [her] powers” by deciding the scope of the arbitration agreement with- out waiting for the district court to decide whether Bonday’s claims were arbitrable. Specifically, Nalco asserted that whether a claim USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 6 of 76 6 Opinion of the Court 22-13546 was arbitrable was a question about the arbitration agreement’s “enforceability, revocability[,] or validity[,]” which the agreement had delegated to “a court” and not the arbitrator. And instead of waiting for the district court’s arbitrability determination, Nalco argued, the arbitrator “decided the arbitrability issue by conjuring up claims that Bonday never made” and found those claims arbitra- ble. For two reasons, the district court agreed that the arbitrator exceeded her powers and vacated the arbitration award. First, the district court concluded that the arbitrator exceeded her powers by ruling on the arbitrability of Bonday’s demand because the arbitra- tion agreement reserved determinations on arbitrability issues to the court and not the arbitrator. And second, the district court ex- plained that the arbitrator exceeded her powers by granting relief on a “possible ERISA discrimination claim” because Bonday “did not submit” one in his demand. Bonday appeals the order vacating the arbitration award. STANDARD OF REVIEW When reviewing a “district court’s decision on [a] motion to vacate [an] arbitration award, we accept the district court’s findings of fact to the extent they are not clearly erroneous and review USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 7 of 76 22-13546 Opinion of the Court 7 questions of law de novo.” Johnson v. Directory Assistants Inc., 797 F.3d 1294, 1298–99 (11th Cir. 2015) (cleaned up). DISCUSSION The district court gave two reasons for its conclusion that the arbitrator exceeded her powers: (1) she ruled on the scope of the arbitration agreement even though the agreement reserved that determination for the court; and (2) she granted relief on a claim—ERISA discrimination—that Bonday did not raise in his de- mand for arbitration. Because we agree with the district court’s second reason for vacating the arbitration award, we do not reach 1 the first reason. The Federal Arbitration Act allows a district court to vacate an arbitration award when “the arbitrator[] exceeded [her] pow- ers.” See 9 U.S.C. § 10(a)(4). It is “well-established that an arbitrator ‘can bind the parties only on issues that they have agreed to submit to h[er].’” Butterkrust Bakeries v. Bakery, Confectionery & Tobacco Workers Int’l Union, AFL–CIO, Loc. No. 361, 726 F.2d 698, 700 (11th Cir. 1984) (quoting Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Indep. Truck Drivers Union, Loc. No. 1, 611 F.2d 580, 583 (5th Cir. 1980)). An arbitrator therefore exceeds her powers when she decides an “issue [that] was not submitted 1 Although we have our doubts about the first reason. See Attix v. Carrington Mortg. Servs., LLC, 35 F.4th 1284, 1298–1300 (11th Cir. 2022); Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1331–32 (11th Cir. 2005). USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 8 of 76 8 Opinion of the Court 22-13546 to” her for determination. Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1195 (11th Cir. 1995) (citing 9 U.S.C. § 10(a)(4)). Here, Bonday did not submit an ERISA discrimination claim to the arbitrator. Bonday’s arbitration demand raised only one claim: that Nalco improperly refused his request for severance af- ter demoting him to consultant. And Bonday asked for one form of relief on that claim: that Nalco “follow the . . . [s]everance p[lan]” and give him severance pay. He only referenced the fact that other demoted employees were allegedly offered severance pay in support of his contention that he too should be entitled to severance pay. But Bonday didn’t mention ERISA or discrimina- tion anywhere in his arbitration demand, and he didn’t ask for dam- ages as a result of any discrimination. Instead, his demand was di- rected to Nalco’s refusal to pay him severance. By awarding Bon- day relief on an ERISA discrimination claim that he did not submit to arbitration, the arbitrator exceeded her powers. See id. We reached a similar conclusion in Davis. There, Davis filed an arbitration demand that requested “compensatory damages, pu- nitive damages, recis[s]ion, prejudgment interest, and costs,” but “did not [request] attorneys’ fees” or raise the issue to the arbitra- 2 tion panel. Id. at 1187. Even though Davis did not raise the 2 Davis also involved a AAA arbitration. See 59 F.3d at 1187 (“Thus, in 1991, Davis initiated an arbitration before the AAA against PSI and Rukrigl, asserting claims for fraud, breach of fiduciary duty and negligence, and alleging viola- tions of federal securities laws and Florida’s Blue Sky Laws.” (citation omit- ted)). USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 9 of 76 22-13546 Opinion of the Court 9 attorneys’ fees issue, the arbitration panel decided that the parties would “bear all of [their] . . . attorneys’ fees.” Id. After the district court confirmed the entire award, we vacated as to the portion that awarded attorneys’ fees. Id. at 1195. The arbitration panel, we ex- plained, exceeded its powers by deciding an “attorneys’ fees issue [that] was not submitted to” it. Id. We have the same problem here. The arbitrator exceeded her powers because the ERISA discrimination claim on which she granted relief “was not submitted to” the arbitrator. See id. Bonday and the dissenting opinion resist this conclusion. First, they argue that, in Davis, “[t]he problem was that the parties never raised the issue of attorneys’ fees during the arbitration.” They contend that Bonday’s case is different because he eventually raised the ERISA claim with the arbitrator during the arbitration proceedings, after the arbitrator had already read the ERISA dis- crimination claim into his demand. But Bonday can’t point to an- ything in the record supporting his contention that he actually put forward an ERISA discrimination claim. And when asked at oral argument to do so, he admitted there was no record of him sub- mitting this claim to the arbitrator. So Bonday’s case is exactly like Davis—the arbitrator decided a claim that Bonday never submitted for arbitration. Next, Bonday and the dissenting opinion assert that because Bonday appeared pro se in the arbitration, the arbitrator did not exceed her powers by liberally construing his demand to include an ERISA discrimination claim. Bonday is correct that in federal court USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 10 of 76 10 Opinion of the Court 22-13546 “[p]ro se pleadings are . . . liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (cleaned up). But even if we were to apply that principle to Bonday’s demand, it wouldn’t help him because the “leniency” provided to pro se liti- gants “does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (cleaned up). To “liberally construe” doesn’t mean to make up. But that’s what the arbitrator did here. After Bonday submitted a severance claim that the arbitrator concluded was not arbitrable, she rewrote Bonday’s demand to include an ERISA discrimination claim and concluded it was arbitrable. She exceeded her powers by doing so. Finally, Bonday and the dissenting opinion note that the ar- bitrator could have allowed Bonday to amend his demand to in- clude an ERISA discrimination claim even if his original demand didn’t include one. So, they argue, the arbitrator did not exceed her powers by choosing instead to read an ERISA discrimination claim into his demand. They may be right that Bonday could have amended his demand, but the relevant question is not what claims he could have submitted to the arbitrator via an amended demand. Rather, the relevant question is what claims Bonday did submit to the arbitrator. See Davis, 59 F.3d at 1195–96 (concluding arbitration panel exceeded its powers in deciding attorneys’ fees issue that plaintiff could have raised but did not include among his claims for arbitration). Again, Davis is controlling. See id. Even if Bonday could have amended his demand to include an ERISA discrimina- tion claim, he didn’t do so. And as noted above, the leniency USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 11 of 76 22-13546 Opinion of the Court 11 afforded to pro se litigants does not give courts or arbitrators li- cense to serve as de facto counsel for a party. See Campbell, 760 F.3d at 1168–69. So the argument on this point also fails. CONCLUSION The district court correctly vacated the arbitrator’s award granting Bonday relief on a claim he never submitted to the arbi- trator. We therefore affirm the district court’s order vacating the award. AFFIRMED. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 12 of 76 22-13546 TJOFLAT, J., Dissenting 1 TJOFLAT, Circuit Judge, dissenting: Ecolab, the parent company of Nalco Company LLC, main- tains a standard dispute resolution agreement with its employees, entitled the “Ecolab Mediation and Arbitration Agreement” (“Arbi- tration Agreement” or “Agreement”). The Agreement provides for the arbitration of disputes between Ecolab or Nalco and their re- spective employees and specifies that “[a]ll Disputes shall be finally and conclusively resolved by final and binding arbitration” con- ducted pursuant to the Employment Arbitration Rules of the American Arbitration Association (“AAA Rules”). This appeal con- cerns an arbitration conducted under the AAA Rules and the award a AAA arbitrator entered in favor of a former Nalco employee, Lau- rence Bonday. After the award issued, Nalco moved the District Court be- low to vacate the award pursuant to Section 10 of the Federal Ar- bitration Act (“FAA”), 9 U.S.C. § 10, on the ground that the arbitra- tor lacked jurisdiction under the Agreement to make the award. Nalco assumed a heavy burden. It would not be enough if Nalco established that the arbitrator committed an error—even a serious error—in making the award. Nalco would have to prove to the Court that the arbitrator, in conducting the arbitration and making the award, did not even arguably interpret the parties’ Agreement, including the AAA Rules it incorporated. If Nalco failed, the arbi- trator’s decision would stand intact as a matter of law—even if the Court thought it was meritless. See E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62, 121 S. Ct. 462 (2000); USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 13 of 76 2 TJOFLAT, J., Dissenting 22-13546 Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364 (1987). So the sole question for the District Court was “whether the arbitrator (even arguably) interpreted the parties’ [Agreement and the AAA Rules], not whether [she] got its meaning right or wrong.” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569, 133 S. Ct. 2064, 2068 (2013). This burden was too much for Nalco to carry, so as if the burden did not exist, it persuaded the District Court to treat its mo- tion to vacate practically as if Bonday’s Demand was a complaint in a civil action and Nalco had moved to dismiss it for failure to state a claim for relief. See Fed. R. Civ. P. 12(b)(6). Nalco urged the Court to do that even though it was hornbook law that the Federal Rules of Civil Procedure have little application in a proceeding for vacatur of an arbitration award under 9 U.S.C. § 10. The District Court did as Nalco requested. Ignoring the bur- den of proof the Supreme Court has placed on movants for § 10 vacatur, without considering the AAA Rules the Arbitration Agree- ment required the arbitrator to apply, and without fully considering this Court’s and the Supreme Court’s precedent, the District Court granted Nalco’s motion and vacated the arbitrator’s award. It did so in part by relying on a case, Davis v. Prudential Sec., Inc., 59 F.3d 1186 (11th Cir. 1995), that is inapplicable to the present dispute. The District Court handed down a lawless decision. It has no foundation in the law—in any law, anywhere but in Nalco’s law- yers’ imagination. Today, the Majority does the unthinkable. It af- firms a trial court decision that cannot stand because it was handed USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 14 of 76 22-13546 TJOFLAT, J., Dissenting 3 down in defiance of the law. It requires no subtle analysis to say that this Court cannot do that. I dissent. To quote Justice Alito, “I am stunned.” 1 This dissent proceeds as follows: Part I explains why Con- gress enacted the FAA and what it sought to achieve. Congress lim- ited the courts’ role in the arbitration process. Over time, in a series of decisions that culminated in Sutter, the Supreme Court circum- scribed that limited role and with the Courts of Appeals addressed the issues Nalco raised here: who decides questions of arbitrability and what is the role of district courts in reviewing arbitral awards. The developments of this case are the focus of Part II. Part III ad- dresses Nalco’s failure to satisfy Sutter’s “even arguably” standard and the District Court’s error in vacating the arbitral award. Part IV demonstrates Davis’s inapplicability. Part V concludes. I. Arbitration Basics The FAA’s Purpose Congress passed the FAA in 1925 “to reverse the longstand- ing judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S. Ct. 1647, 1651 (1991). The FAA’s provisions embody “a lib- eral federal policy favoring arbitration agreements.” Id. at 25, 111 1 Dep’t of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753, 753 (2025) (Alito, J., dissenting from denial of application to vacate order). USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 15 of 76 4 TJOFLAT, J., Dissenting 22-13546 S. Ct. at 1651 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983)). The FAA reflects Congress’s view that arbitration boasts several advantages as an alternative to judicial dispute resolution. By agreeing to arbitrate, parties “trade[] the procedures and oppor- tunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Mitsubishi Motors Corp. v. Soler Chrys- ler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 3354 (1985). The benefits of arbitration include “lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 685, 130 S. Ct. 1758, 1775 (2010). The “primary purpose of the FAA is to ensure that private agreements to arbitrate are enforced according to their terms.” Id. at 682, 130 S. Ct. at 1773 (internal quotation marks omitted). When parties agree to arbitrate based on a set of specified rules, those rules become terms of the contract, and our courts must honor them. See Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Jun- ior Univ., 489 U.S. 468, 479, 109 S. Ct. 1248, 1256 (1989) (holding that parties who agree to arbitrate may “specify by contract the rules under which that arbitration will be conducted”). Often, par- ties will incorporate the rules of an arbitration organization by ref- erence in their contract, as the parties did here by adopting the AAA Rules. Agreements to Arbitrate USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 16 of 76 22-13546 TJOFLAT, J., Dissenting 5 The FAA generally protects the right to enforce arbitration agreements. See 9 U.S.C. § 2. It preempts state law rules that disfa- vor arbitration, directly or indirectly. AT&T Mobility LLC v. Concep- cion, 563 U.S. 333, 341–44, 131 S. Ct. 1740, 1746–48 (2011). And it provides parties with judicial recourse when their counterparts try to circumvent their obligations to arbitrate. For instance, 9 U.S.C. § 3 requires courts to stay pending suits or proceedings when the issues involved may be referred to arbitration. And 9 U.S.C. § 4 al- lows a party to apply for an order compelling another party to ar- bitrate. Together, these provisions ensure that parties receive the arbitration to which they agreed. Of course, these remedies assume the existence of a valid, enforceable arbitration agreement between the parties. Because “arbitration is strictly a matter of consent,” courts must apply con- tract-law principles to “decide any questions concerning the for- mation or scope of an arbitration agreement before ordering par- ties to comply with it.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 298, 130 S. Ct. 2847, 2857 n.6 (2010). Broadly speaking, the question of “arbitrability” is the ques- tion of whether the parties have agreed to arbitrate a particular dis- pute. Coinbase, Inc. v. Suski, 602 U.S. 143, 148, 144 S. Ct. 1186, 1192 (2024). This question is separate from the merits of the underlying dispute, and it is separate from the matter of who gets to decide which questions. The Supreme Court recently explained the dis- tinctions as follows: USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 17 of 76 6 TJOFLAT, J., Dissenting 22-13546 A contest over “the merits of the dispute” is a first- order disagreement, the resolution of which depends on the applicable law and relevant facts. The parties may also have a second-order dispute—“whether they agreed to arbitrate the merits”—as well as a third-order dispute—“who should have the primary power to decide the second matter.” Under contract principles, these second- and third-order questions are also matters of consent. “Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the ques- tion ‘who has the primary power to decide arbitrabil- ity’ turns upon what the parties agreed about that matter.” Id. at 148–49, 144 S. Ct. at 1192–93 (citations omitted). In addition to these questions, parties may “specify by contract the rules under which th[e] arbitration will be conducted.” Volt, 489 U.S. at 479, 109 S. Ct. at 1256. This all simply means that the parties’ agreement dictates how disputes are resolved at every level of abstraction. By default, “a party who has not agreed to arbitrate will normally have a right to a court’s decision about the merits of its dispute.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 115 S. Ct. 1920, 1923 (1995). So one of the questions courts must ask is: “Did the parties agree to submit the arbitrability question itself to arbitration?” Id. at 943, 115 S. Ct. at 1923. To answer that question in the affirmative, a court must find “clear and unmistakable evidence that they did so.” Id. at 944, 115 S. Ct. at 1924 (cleaned up). But there is no doubt that USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 18 of 76 22-13546 TJOFLAT, J., Dissenting 7 parties can agree to arbitrate arbitrability, and those agreements are as enforceable as any other. See Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65, 139 S. Ct. 524, 527 (2019). On several occasions, this Court has considered whether, by incorporating the rules of the American Arbitration Association into their arbitration agreement, parties clearly and unmistakably agreed to arbitrate arbitrability. See, e.g., Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327 (11th Cir. 2005); Attix v. Carrington Mortg. Servs., LLC, 35 F.4th 1284 (11th Cir. 2022). In those cases, we have consistently held that the incorporation of such rules does suf- fice to vest the arbitrator with the authority to answer questions of arbitrability. Terminix, 432 F.3d at 1332; Attix, 35 F.4th at 1297–98. That is because these rules generally contain provisions explicitly granting each AAA arbitrator “the power to rule on his or her own jurisdiction,” including with respect to “the existence, scope, or va- lidity of the arbitration agreement.” Id. Judicial Review of Awards As the Supreme Court has explained, the right to enforce ar- bitration agreements “would not be a right to arbitrate in any meaningful sense if generally applicable principles of state law could be used to transform traditional individualized arbitration into the litigation it was meant to displace through the imposition of procedures at odds with arbitration’s informal nature.” Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 651, 142 S. Ct. 1906, 1918 (2022) (cleaned up). The same is true regarding principles of federal procedural law. A court infringes on the right to arbitrate when it USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 19 of 76 8 TJOFLAT, J., Dissenting 22-13546 imposes unnecessary hurdles rooted in our more formal system of litigation. Because public policy favors arbitration, judicial review of arbitration awards is quite limited. Butterkrust Bakeries v. Bakery, Confectionary & Tobacco Workers Int’l Union, AFL-CIO, Loc. No. 361, 726 F.2d 698, 699 (11th Cir. 1984). The FAA provides two key mechanisms for challenging arbitration awards: vacation under 9 U.S.C. § 10 and modification or correction under 9 U.S.C. § 11. Rel- evant here, 9 U.S.C. § 10(a)(4) permits courts to vacate an award “where the arbitrators exceeded their powers, or so imperfectly ex- ecuted them that a mutual, final, and definite award upon the sub- ject matter submitted was not made.” Similarly, 9 U.S.C. § 11(b) permits courts to modify an award “[w]here the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submit- ted.” The court will consider an application for either order by a party’s motion, without the need for a separate contract action. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582, 128 S. Ct. 1396, 1402 (2008). But those provisions do not permit courts to second-guess every decision an arbitrator makes. Regarding § 10, the Supreme Court has explained: A party seeking relief under that provision bears a heavy burden. “It is not enough . . . to show that the [arbitrator] committed an error—or even a serious er- ror.” Stolt-Nielsen, 559 U.S. at 671, 130 S. Ct. 1758. Be- cause the parties “bargained for the arbitrator's USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 20 of 76 22-13546 TJOFLAT, J., Dissenting 9 construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court's view of its (de)mer- its. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); internal quotation marks omitted). Only if “the arbitrator act[s] outside the scope of his contractually delegated authority”—issuing an award that “simply reflect[s] [his] own notions of [economic] justice” rather than “draw[ing] its essence from the contract”—may a court overturn his determination. Eastern Associated Coal, 531 U.S., at 62, 121 S. Ct. 462 (quot- ing Misco, 484 U.S., at 38, 108 S. Ct. 364). So the sole question for us is whether the arbitrator (even argua- bly) interpreted the parties' contract, not whether he got its meaning right or wrong. Sutter, 569 U.S. at 569, 133 S. Ct. at 2068 (alterations in original). In Sutter, the Supreme Court considered a § 10(a)(4) chal- lenge to an arbitrator’s finding that the parties’ contract permitted class arbitration. Id. at 566–67, 133 S. Ct. at 2067. The contract— between a pediatrician, John Sutter, and a health insurance com- pany, Oxford Health Plans—contained a clause mandating the ar- bitration of all claims “arising under this Agreement . . . , pursuant to the rules of the American Arbitration Association with one arbi- trator.” Id. After Sutter attempted to bring a class action against USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 21 of 76 10 TJOFLAT, J., Dissenting 22-13546 Oxford in state court, the court referred the dispute to arbitration on Oxford’s motion to compel. Id. The appointed arbitrator then determined, based on a plain reading of the arbitration clause, that the parties’ agreement permitted class arbitration. Id. Oxford filed a § 10(a)(4) motion to vacate on the basis that the arbitrator “exceeded [his] powers.” Id. (alteration in original). The district court denied the motion, and the Third Circuit af- firmed. Id. While the arbitration was pending, the Supreme Court decided Stolt-Nielsen, in which the Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. (quoting Stolt-Nielsen, 559 U.S. at 684, 130 S. Ct. at 1758). Citing that case, Oxford asked the arbitrator to reconsider his decision regarding class arbitration, and the arbitrator declined. Id. at 567–68, 133 S. Ct. at 2067–68. In Stolt-Nielsen, the parties had stipulated that there was no agreement authorizing class arbitra- tion. Id. Whereas in Sutter, the parties disputed the meaning of their contract. Id. Resolving the dispute, the arbitrator again “found that the arbitration clause unambiguously evinced an intention to allow class arbitration.” Id. The district court and Third Circuit again rejected Oxford’s renewed effort to have the decision vacated under § 10(a)(4). Id. The Supreme Court granted certiorari “to address a circuit split on whether § 10(a)(4) allows a court to vacate an arbitral award in sim- ilar circumstances.” Id. The Court emphasized that, “[u]nder the FAA, courts may vacate an arbitrator’s decision only in very USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 22 of 76 22-13546 TJOFLAT, J., Dissenting 11 unusual circumstances.” Id. Applying the appropriate, limited standard of review under the FAA, the Court held that, “[s]o long as the arbitrator was ‘arguably construing’ the contract—which this one was—a court may not correct his mistakes under § 10(a)(4).” Id. at 572, 133 S. Ct. at 2070. The Court concluded: In sum, Oxford chose arbitration, and it must now live with that choice. Oxford agreed with Sutter that an arbitrator should determine what their contract meant, including whether its terms approved class ar- bitration. The arbitrator did what the parties re- quested: He provided an interpretation of the con- tract resolving that disputed issue. His interpretation went against Oxford, maybe mistakenly so. But still, Oxford does not get to rerun the matter in a court. Under § 10(a)(4), the question for a judge is not whether the arbitrator construed the parties’ contract correctly, but whether he construed it at all. Because he did, and therefore did not ‘exceed his powers,’ we cannot give Oxford the relief it wants. Id. at 573, 133 S. Ct. at 2071. This Court’s own cases have expressed the same sentiment. See, e.g., S. Commc’ns Servs., Inc. v. Thomas, 720 F.3d 1352 (11th Cir. 2013). In Thomas, we noted that 9 U.S.C. §§ 10 and 11 “together give ‘substan[ce to] a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.’” Id. at 1358 (alteration in origi- nal) (quoting Hall St. Assocs., 552 U.S. at 588, 128 S. Ct. at 1405). We emphasized “the extraordinary deference with which arbitral USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 23 of 76 12 TJOFLAT, J., Dissenting 22-13546 decisions are treated under § 10(a)(4).” Id. at 1359. And we reiter- ated that, under Sutter, “if the arbitrator (even arguably) inter- preted the parties’ contract, a court must end its inquiry and deny a § 10(a) motion for vacatur.” Id. (internal quotation marks omit- ted). The decisions of the District Court and Majority here reflect none of the deference articulated in Sutter and Thomas. The District Court, in its order granting Nalco summary judgment and vacating the final award, never even acknowledged that its role was to ask “if the arbitrator (even arguably) interpreted the parties’ contract,” see id., including the AAA Rules incorporated therein. If the Court had applied this limited scope of review, it would have encoun- tered a host of rules—especially AAA Rules 5, 6, 8, and 48—bearing directly on the present dispute. Even if the Court would have interpreted those rules differ- ently, that still would not be enough to set aside the final award. The Court would have had to conclude that the arbitrator did not even arguably interpret those rules. In failing to consider the rules at all, the District Court effectively co-opted the arbitrator’s role for itself. That is manifestly not what Congress intended when it enacted the FAA, and it is not the process the parties bargained for. II. Procedural History With this legal backdrop in mind, I turn to the facts of this case. To understand how far astray the District Court and the Ma- jority have drifted from established law, I find it necessary to chron- icle the history of this arbitration. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 24 of 76 22-13546 TJOFLAT, J., Dissenting 13 Initiating Arbitration The Arbitration Agreement between Bonday and Ecolab (Nalco’s parent company) expressly adopts the AAA Rules as providing an alternative dispute resolution forum.2 AAA Rule 4 dic- tates how a party to an arbitration agreement may initiate arbitra- tion. The party may do so by filing at any AAA office a written no- tice, i.e., a “Demand,” of its intention to arbitrate the dispute. “The Demand shall set forth . . . a brief statement of the nature of the dispute; the amount in controversy, if any; the remedy sought; and requested hearing location.” 3 Bonday, proceeding pro se, filed his Demand for arbitration on December 29, 2020. 2 Under AAA Rule 2, an employer seeking to make use of AAA’s arbitration services must, “at least 30 days prior to the planned effective date” of its agree- ment, “notify the Association of its intention to do so and . . . provide the As- sociation with a copy of the employment dispute resolution plan.” Presuma- bly, AAA was notified of Ecolab’s (and thus Nalco’s) adoption of the employ- ment resolution plan at some time prior to the filing of Bonday’s Demand. 3 AAA Rule 4(b)(i)(1). The form of the Demand “shall not be subject to tech- nical pleading requirements.” Id. at 4(c). The respondent party “may file an Answer within 15 days,” which should contain a “brief response to the claim and the issues presented.” Id. at 4(b)(ii). If there is no Answer, “Respondent will be deemed to deny the claim,” and the “[f]ailure to file an answering state- ment shall not operate to delay the arbitration.” Id. Additionally, the respond- ent “[m]ay file a counterclaim with the AAA within 15 days after the date of the letter from the AAA acknowledging receipt of the Demand.” Id. at 4(b)(iii). Finally, under AAA Rule 6, “[a] party must object to the jurisdiction of the arbitrator or to the arbitrability of the claim no later than the filing of answer- ing statement to the claim or counterclaim that gives rise to the objection.” Here, after the parties’ Rule 8 management conference, the arbitrator pro- vided additional time for Nalco to file its answer and counterclaims. See infra. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 25 of 76 14 TJOFLAT, J., Dissenting 22-13546 On January 8, 2021, following preliminary review of the no- tice Bonday filed, AAA’s Employment Filing Team informed the parties by letter that the dispute would be arbitrated under the AAA Rules, requested that Nalco pay the $2,200 filing fee by Janu- ary 22, and told the parties that if they had any questions, they should “email” the Employment Filing Team. 4 Following the conference on August 27, 2021, pursuant to AAA Rule 8, the arbitrator gave Nalco until September 10 and 24, 2021, to file an answer and any counterclaims. Nalco did not do so. 4 The parties’ Arbitration Agreement provided that Nalco would “pay any me- diation or arbitration filing fee required by AAA.” The Employment Filing Team’s letter echoed this requirement: Per the agreement submitted with this filing, the employer is responsible for payment of the full filing fee, $2,200.00. Ac- cordingly, we request that the employer submit payment in the amount of $2,200.00 on or before January 22, 2021. Upon receipt of the balance of the filing fee, the AAA will proceed with administration. The letter informed the parties: The AAA’s administrative fees are based on filing and service charges. Arbitrator compensation is not included in this sched- ule. The AAA may require arbitrator compensation deposits in advance of any hearings. Unless the employee chooses to pay a portion of the arbitrator’s compensation, the employer shall pay all of the arbitrator’s fees and expenses. Further, the “employer's full share is due as soon as the employee meets his or her filing requirements.” The letter “confirm[ed] that [the] employee's filing requirements ha[d] been met.” USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 26 of 76 22-13546 TJOFLAT, J., Dissenting 15 Nalco filed no answer. Instead, on January 19, Nalco’s attor- ney, René Thorne, sent AAA a letter via email stating that the par- ties’ Arbitration Agreement did not provide for the arbitration of claims presented in Bonday’s Demand.5 The letter cited the Agree- ment’s exclusion of disputes “related to . . . controversies over awards of benefits or incentives under [Nalco]’s stock option plans, employee benefits plans or welfare plans that contain an appeal procedure or other procedure for the resolution of such controver- sies.” Thorne asked AAA to terminate the arbitration. In her January 19 letter, Thorne referred to Section 2.E of the parties’ Arbitration Agreement, which provides that an arbitra- ble “‘Dispute’ does not include claims related to: . . . controversies over awards of benefits or incentives under the Company’s stock option plans, employee benefits plans or welfare plans that contain an appeal procedure or other procedure for the resolution of such 5 Thorne was a partner in the New Orleans office of Jackson Lewis P.C., a nationwide law firm. She served as counsel for Nalco throughout this contro- versy. I assume that before she wrote her January 19 letter to the AAA, she read, or was thoroughly informed by subordinates of, the following: the par- ties’ Arbitration Agreement, the AAA Rules, Sections 2, 4, 6, 8, 9, 10 and 11 of the FAA, the decisions of the United States Supreme Court interpreting the FAA—including, in particular, the decisions in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 588, 128 S. Ct. 1396 (2008); Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2011); and Henry Schein v. Archer and White Sales, 139 S. Ct. 524 (2019)—and the decisions of this Court bearing on the issues Thorne raised in the instant arbitration and in the District Court declaratory judgment action Thorne brought for Nalco against Bonday while this arbitration was underway. Any lawyer litigating those issues in a AAA arbitration in the Elev- enth Circuit would have to be thoroughly familiar with this body of law. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 27 of 76 16 TJOFLAT, J., Dissenting 22-13546 controversies.” Therefore, Thorne argued that the dispute Bon- day’s Demand presented was not arbitrable. * * * Under AAA Rule 6, “[a] party must object . . . to the arbitra- bility of a claim or counterclaim no later than the filing of the an- swering statement to the claim or counterclaim that gives rise to the objection.” Rule 6 plainly contemplates that the objection should be contained in the party’s answer or in an earlier motion addressed to the arbitrator.6 Nalco never filed an answer, and it im- properly addressed its objection to AAA administrators. Nalco seemingly did everything it could to avoid initiating the arbitration process, knowing that it would give the arbitrator an opportunity to interpret the contract, triggering the heavy burden imposed by Sutter and Thomas when Nalco would inevitably have to challenge the final award under 9 U.S.C. § 10(a)(4). All of Nalco’s subsequent tactics were likely calculated to try to avoid this burden of proof, hoping to have the arbitration administratively terminated before an arbitrator became involved. * * * On January 20, 2021, Larry Allston, a Finance Supervisor for AAA, emailed both parties, requesting comment from Bonday re- garding Thorne’s letter. Bonday responded in a January 22 email, 6 AAA Rule 6 also provides that “[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.” USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 28 of 76 22-13546 TJOFLAT, J., Dissenting 17 copying Thorne, “requesting continuation of the arbitration pro- cess.” So, on January 26, at 2:55 PM, Allston, responding to Thorne’s January 19 email, sent Thorne (and Bonday) an email stat- ing: As the parties are not in agreement, this matter will proceed forward since the claimant has met their fil- ing requirements required in the rules. As a neutral administrative agency, it is not our role to interpret the parties’ contract and determine arbi- trability. Our role is only to determine whether or not the filing party met filing requirements contained in the Rules by filing a demand for arbitration accompa- nied by an arbitration clause providing for administra- tion by the AAA under its Rules or by naming the AAA as the dispute resolution provider. Arbitrability issues are decided only by the arbitrator, once ap- pointed, or a court of jurisdiction. Therefore, we ask the employer to please forward the $2200 outstanding fee by February 2, 2021. * * * This was Allston’s way of informing Thorne (and Bonday) that the AAA, acting administratively, could not consider and rule on her objection to the arbitration of Bonday’s Demand and that an arbitrator, once appointed, would do so. But that could not oc- cur unless and until Nalco paid the agreed-upon $2200 fee. * * * USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 29 of 76 18 TJOFLAT, J., Dissenting 22-13546 Less than two hours later, at 4:35 PM, Thorne replied to All- ston’s 2:55 PM email with copy to Bonday, stating: Section 2.E of the Arbitration Agreement specifically provides that it “does not apply to disputes regarding the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Such disputes can only be resolved by a court of competent jurisdiction.” In light of this plain language, AAA does not have jurisdiction over this matter unless and until a court of competent jurisdictions makes a decision on arbitrability should Mr. Bonday continue to object to arbitration in a court. As such, we again respect- fully request that the matter be dismissed. * * * By invoking Section 2.E of the Agreement, Thorne implic- itly acknowledged its validity. It would make no sense to argue about the scope of the word “Dispute” in the Agreement if Nalco believed the Agreement was invalid or unenforceable. And because the Agreement adopted the AAA Rules, the arbitrator had jurisdic- tion under Rule 6 “with respect to [its] existence, scope or validity.” If the Agreement concededly existed and was valid, Nalco could only argue that Bonday’s claims were outside the Agreement’s “scope.” But the clause Nalco cited had nothing to do with that: it referred only to questions of “enforceability, revocability or valid- ity.” Indeed, that clause seemingly references Section 2 of the FAA, which provides: USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 30 of 76 22-13546 TJOFLAT, J., Dissenting 19 A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitra- tion a controversy thereafter arising out of such con- tract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy aris- ing 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 revo- cation of any contract or as otherwise provided in chapter 4. 9 U.S.C. § 2 (emphasis added). Assuming Thorne had consulted the AAA Rules, she would know that the AAA, acting administratively, lacked the authority to ter- minate the arbitration purely on the basis of her objection. The ob- jection would have to be submitted to an arbitrator, and that could not happen unless and until Nalco paid the $2200 fee. Notwith- standing the inapplicability of the quoted Section 2.E provision, Thorne relied on it repeatedly in the hope that the AAA would somehow use it to stop the arbitration before it began. * * * On February 5, at 12:15 PM, Allston emailed the parties: “Payment from the employer was not received by the requested deadline as the employer has chosen not to recognize the AAA’s jurisdiction based on their interpretation of the party’s contract. We are unable to proceed forward without these fees. As a result, we have closed this matter.” At 1:34 PM, Bonday responded: USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 31 of 76 20 TJOFLAT, J., Dissenting 22-13546 I must object to the closing of this case and request that it be kept open and that Ecolab make the re- quired payment as soon as possible. It is my understanding that Ecolab must abide by the rules and ruling of the arbitration process, not only when they view it as advantages to themselves. M[s.] Thorne may argue the jurisdiction directly with the assigned arbitrator per the Rules and Meditation Procedures (Rule 6- Jurisdiction) pasted bellow [sic]. At 2:53 PM, Allston replied: Mr. Bonday, We requested fees from the employer based on the fact that your filing requirements were met. Addition- ally, we stated that per our rules, their objection was an issue for the arbitrator to decide once appointed. The employer is expected to support the dispute res- olution process that it mandates in its dispute resolu- tion plan. However, the employer continues to object and failed to pay the required fees. Therefore, the matter must be closed due to non-compliance by the employer. Absence [sic] a court order referring the matter back to arbitration, the matter will remain closed. Bonday avoided the closure at 5:53 PM, emailing Allston and Thorne: “Must the employer pay the required fee; or may I submit full payment to advance the arbitration process forward?” USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 32 of 76 22-13546 TJOFLAT, J., Dissenting 21 On February 19, Allston emailed the parties that Bonday was allowed to advance the fees so that the arbitration could begin. The case would be handled by AAA’s Pro Se Arbitration Administration Team, specifically “Pro Se Manager 3.” But in a series of emails Thorne sent the Pro Se Manager on February 25, April 1, and July 7, Nalco maintained that AAA lacked jurisdiction and, for that rea- son, it would not be participating in the arbitration.7 7 The February email summed up Nalco’s position according to Thorne: Mr. Allston, I remind you again that Section 2.E of the Arbitration Agree- ment specifically provides that it “does not apply to disputes regarding the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Such disputes can only be resolved by a court of competent jurisdiction.” AAA does not have jurisdiction over this matter unless a court of competent jurisdiction makes a decision on arbitrability. We therefore ob- ject to your repeated suggestions that Respondent has any ob- ligation whatsoever to pay fees or otherwise agree to move forward before AAA. If he so chooses, Mr. Bonday can pursue this matter in a court of law. Simply put, your repeated insin- uations that AAA has jurisdiction over this matter are both le- gally incorrect and misleading to Mr. Bonday. As such, we again respectfully request that the matter be dismissed. Thorne’s April 1 email read: “In case it was not entirely clear from our numer- ous previous communications, AAA does not have jurisdiction over this claim. Accordingly, Ecolab [Nalco] will not be responding further.” And in a July 7 email, Thorne did respond further to state: “As we have repeatedly and clearly informed AAA and Mr. Bonday, AAA does not have jurisdiction over this claim. Accordingly, Ecolab [Nalco] will not be participating in an arbitration.” USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 33 of 76 22 TJOFLAT, J., Dissenting 22-13546 Thorne’s February 25 email to the Pro Se Manager repeated her email 4:35 PM message to Allston of January 26, again declar- ing that Section 2.E of the Arbitration Agreement barred arbitra- tion of Bonday’s Demand: Section 2.E of the Arbitration Agreement specifically provides that it “does not apply to disputes regarding the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Such disputes can only be resolved by a court of competent jurisdiction.” AAA does not have jurisdiction over this matter unless a court of competent jurisdiction makes a decision on arbi- trability. We therefore object to your repeated sugges- tions that Respondent has any obligation whatsoever to pay fees or otherwise agree to move forward before AAA. If he so chooses, Mr. Bonday can pursue this matter in a court of law. Simply put, your repeated insinuations that AAA has jurisdiction over this mat- ter are both legally incorrect and misleading to Mr. Bonday. As such, we again respectfully request that the matter be dismissed. As shown infra, in every subsequent email to AAA, the Pro Se Manager, and the arbitrator—and in every pleading they filed in the lawsuit against Bonday in federal court—Nalco’s lawyers con- tended that Section 2.E of the Arbitration Agreement barred the arbitrator from exercising jurisdiction over Bonday’s Demand. Appointment of the Arbitrator and the Management Conference USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 34 of 76 22-13546 TJOFLAT, J., Dissenting 23 The arbitration nevertheless proceeded without Nalco’s in- volvement. AAA appointed an arbitrator on May 10. 8 On August 23, after seeking input from the parties as to their availability, AAA notified the parties that, pursuant to AAA Rule 8, the arbitrator would hold a “Management Conference” on August 27. AAA Rule 8 lists sixteen matters for the arbitrator and the parties to consider “without limitation” at the Conference. Among the matters are “i. the issues to be arbitrated” and “xiii. the specification of undis- closed claims.” AAA’s notice informed the parties that at the Case Management Conference, the arbitrator “will also address [Nalco’s] objections to jurisdiction which will be treated by [the ar- bitrator] as a motion to dismiss.” AAA provided the parties with a “Management Conference Guide,” a standardized form that identified some of the matters that would be considered during the Conference. They included the “Specification of Claims and Counterclaims” and dates for the “Initial Identification and Exchange of Witnesses,” “Stipulations of Uncontested Facts (If Any),” the “Advanced Exchange of Identifi- cation of Exhibits and Witnesses,” and the “Hearing on the Mer- its.” The form provided spaces opposite each item for the entry of deadlines for the parties’ performance.9 As indicated infra, at some 8 AAA appointed Cindy L. Anderson, an experienced employment lawyer, as the arbitrator. Anderson has served in various capacities as an arbitrator and mediator for AAA, as well as the Better Business Bureau, the National Associ- ation of Securities Dealers, and the Financial Industry Regulatory Authority. 9 The parties were given until September 10 to initially identify witnesses, un- til September 17 to make Discovery Requests, until October 8 to respond to USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 35 of 76 24 TJOFLAT, J., Dissenting 22-13546 point, perhaps in considering the matter of “undisclosed claims,” the arbitrator identified an ERISA claim that has become the focus of this appeal. The Arbitration Management Conference was held on Au- gust 27 as scheduled. Nalco did not appear. The arbitrator therefore considered Nalco’s jurisdictional arguments as waived and denied its “motion to dismiss for lack of jurisdiction” with an entry to that effect on the “Management Conference Guide.” The entry in- cluded this statement: “Case to proceed pursuant to Arbitration Agreement and AAA Employment Rules.” The arbitrator then gave Nalco until September 10 to answer Bonday’s Demand and to specify any counterclaims it wished to bring. Nalco Sues Bonday in Federal District Court On October 1, Nalco, now represented by attorney Valerie Hooker,10 sued Bonday in District Court. Nalco Co. LLC v. Laurence Bonday, No. 2:21-cv-00727 (M.D. Fla. 2021). Invoking the Declara- tory Judgment Act, 28 U.S.C. § 2201, Nalco asked the District Court to “enter an order declaring that the claims in the Demand are not discovery, until October 10 to complete depositions, and until October 22 to complete discovery. November 3 was the deadline for the identification of witnesses and exhibits. Any mediation had to be completed by November 8. The hearing on the merits would take place on November 22, 2021, via Zoom. 10 Hooker was a lawyer in the Jackson Lewis P.C. Miami, Florida, office. She filed the lawsuit for Nalco as a stand-in for Thorne, who was not admitted to practice law in Florida. Two and a half months later, the District Court granted an unopposed motion for Thorne to appear in the case pro hac vice. USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 36 of 76 22-13546 TJOFLAT, J., Dissenting 25 arbitrable under the Agreement and granting all such further and additional relief to Nalco as may be required, necessary or equita- ble.” Bonday’s Demand was not arbitrable, Nalco alleged, for three reasons. First, in the parties’ Arbitration Agreement, the word “[d]ispute” does not include claims related to . . . con- troversies over awards of benefits or incentives under the Company’s stock option plans, employee benefits plans or welfare plans that contain an appeal proce- dure or other procedure for the resolution of such controversies. The Ecolab Severance Plan that De- fendant seeks to enforce falls under the category of an employee benefits plan under the Agreement and it provides an appeal procedure.11 Second, [w]hether the parties have submitted a dispute for ar- bitration is an exception to federal policy favoring ar- bitration agreements. “The question of whether the parties have submitted a particular dispute to arbitra- tion, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002), (quoting AT&T Technologies, Inc. 11 Section 2.E of the Arbitration Agreement states in pertinent part: “‘Dispute’ does not include claims related to . . . (iv) controversies over awards of benefits or incentives under the Company’s stock option plans, employee benefits plans or welfare plans that contain an appeal procedure or other procedure for the resolution of such controversies. . . .” USCA11 Case: 22-13546 Document: 27-1 Date Filed: 07/10/2025 Page: 37 of 76 26 TJOFLAT, J., Dissenting 22-13546 v. Comm’ns Workers of Am., 475 U.S. 643, 649, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (emphasis added)). And third, “the Agreement specifically states that it ‘does not apply to disputes regarding the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Such disputes can only be resolved by a court of competent jurisdiction.’” * * * The first reason repeated practically verbatim what Thorne said to AAA in her January 19 letter (after receiving notice that Bon- day had filed his Demand pursuant to the AAA Rules). The second reason accurately stated Supreme Court law but wrongly implied that the parties had not agreed to delegate to the