Equitable ERISA Surcharge Claims and Arbitration Carve‑Outs: A Commentary on Aramark Services v. Aetna Life Insurance Co.

I. Introduction

The Fifth Circuit’s decision in Aramark Services v. Aetna Life Insurance Co. (No. 24‑40323, Dec. 18, 2025) sits at the intersection of three significant bodies of federal law: the Federal Arbitration Act (FAA), contract interpretation of delegation clauses, and ERISA’s remedial scheme for fiduciary breaches.

The case arises out of a Master Services Agreement (MSA) under which Aetna served as third‑party administrator (TPA) for Aramark’s self‑funded group health plans. Aramark alleges that Aetna, acting as an ERISA fiduciary, mismanaged claims and diverted plan assets through various undisclosed or improper practices, causing tens of millions of dollars in losses to the plans.

Three threshold issues reached the Fifth Circuit:

Who decides whether Aramark’s claims are arbitrable—the court or the arbitrator?
Are the ERISA remedies Aramark seeks “equitable” or “legal,” for purposes of both ERISA and the MSA’s arbitration carve‑out?
Did the Texas district court abuse its discretion by declining to stay its action in favor of a parallel FAA petition filed in Connecticut?

The majority (Judge Higginbotham, joined by Judge Southwick) affirms the district court on all three issues. Judge Jones concurs as to arbitrability but dissents from the holding that Aramark’s monetary relief is “equitable” under ERISA and therefore non‑arbitrable.

The opinion establishes and clarifies important rules in the Fifth Circuit:

In arbitration clauses that (1) adopt AAA rules but (2) contain, in the same sentence, a carve‑out for “injunctive or other equitable relief,” the incorporation of AAA rules does not clearly and unmistakably delegate arbitrability of carved‑out disputes to the arbitrator.
Monetary “make‑whole” relief sought from an ERISA fiduciary for breach of fiduciary duty under §§ 502(a)(2) and (a)(3) is “equitable” surcharge, not legal damages, following CIGNA v. Amara and the Fifth Circuit’s own Gearlds—notwithstanding Montanile and contrary to the Fourth Circuit’s Rose and the Sixth Circuit’s Aldridge.
A first‑filed district court does not abuse its discretion by deciding arbitrability and denying a stay, even when a parallel § 4 petition to compel arbitration is pending in the contractually designated arbitration forum.

Collectively, these holdings have substantial implications for ERISA plan litigation, the drafting of arbitration provisions in service agreements, and the developing circuit split over the scope of “equitable relief” under ERISA § 502(a)(3).

II. Background and Procedural Posture

A. The Parties and the Master Services Agreement

Aramark is a large employer that self‑funds its employee health benefits. Rather than purchasing traditional fully‑insured coverage, it pays claims itself and relies on a TPA—in this case, Aetna—to administer the plans.

The plaintiffs—collectively referred to as “Aramark” in the opinion—include:

Aramark Services, Inc. (the employer and plan sponsor);
Aramark Services, Inc. Group Health Plan;
Aramark Uniform Services, Group Health and Welfare Plan; and
Aramark Benefits Compliance Review Committee (the plan fiduciary committee).

All plans are governed by ERISA. Under the 2017 MSA, Aetna:

Provides access to its provider network;
Adjudicates and pays provider claims using plan assets funded by Aramark;
Handles participant communications;
Provides reporting and plan design assistance.

By Aramark’s account, Aetna has processed over $200 million in claims on behalf of the plans.

B. The Alleged Misconduct and ERISA Claims

Aramark sued in the Eastern District of Texas on September 27, 2023, and later amended its complaint. It alleges that Aetna, while acting as an ERISA fiduciary, engaged in a series of wrongful practices, including:

Paying improper or fraudulent claims, particularly for Aetna subcontractors;
Retaining undisclosed or excessive fees from plan assets;
Providing inadequate subrogation services (failing to recoup from third‑party recoveries);
Post‑adjudication claim “adjustments” harmful to the plans;
Commingling plan assets with Aetna’s own funds.

The statutory hooks are ERISA §§ 502(a)(2) and (a)(3) (29 U.S.C. § 1132(a)(2), (3)) and the underlying fiduciary duty and prohibited‑transaction provisions, including:

29 U.S.C. § 1104(a) (general fiduciary duties of prudence and loyalty),
29 U.S.C. § 1106(a), (b) (prohibited transactions and self‑dealing), and
29 U.S.C. § 1109(a) (fiduciary liability to “make good” plan losses, restore profits, and for “other equitable or remedial relief” to the plan).

Crucially, Aramark characterizes its requested relief as equitable “make‑whole” relief on behalf of the plans, not traditional legal damages.

C. The Arbitration Clause and the FAA Filings

Section 15 of the MSA contains the arbitration clause. In simplified form, it provides:

“Any controversy or claim arising out of or relating to this Agreement or the breach, termination, or validity thereof, except for temporary, preliminary, or permanent injunctive relief or any other form of equitable relief, shall be settled by binding arbitration in Hartford, CT, administered by the American Arbitration Association (“AAA”) and conducted by a sole arbitrator in accordance with the AAA’s Commercial Arbitration Rules…. The arbitrator may award only monetary relief and is not empowered to award damages other than compensatory damages.”

Section 18(E) is the governing law clause:

“The Agreement shall be governed by and interpreted in accordance with applicable federal law, including ERISA. To the extent such federal law does not govern, the Agreement shall be governed by Connecticut law.”

The procedural wrangle unfolded as follows:

09/27/2023 – Aramark files ERISA action in E.D. Tex.
12/22/2023 – Aramark files amended complaint.
02/24/2024 – Two days before its response deadline in Texas, Aetna files a § 4 FAA petition to compel arbitration in the District of Connecticut (the seat of arbitration under the MSA).
03/01/2024 – Aetna moves in E.D. Tex. to stay the Texas litigation under FAA § 3, pending arbitration in Hartford.
04/26/2024 – The Texas district court denies the § 3 stay, holds that arbitrability is for the court to decide, and that Aramark’s ERISA claims are equitable and outside the arbitration clause.
05/2024 – Aetna appeals to the Fifth Circuit.
08/2024 – The District of Connecticut stays the § 4 petition pending the Fifth Circuit’s decision.

On appeal, Aetna argued the district court:

Misinterpreted the arbitration clause by failing to recognize a clear delegation of arbitrability to the arbitrator (via AAA rules);
Erred in classifying Aramark’s requested relief as “equitable” rather than legal; and
Abused its discretion by effectively denying a discretionary stay in favor of the parallel Connecticut proceeding.

III. Summary of the Fifth Circuit’s Opinion

The Fifth Circuit affirms in all respects. Its key holdings are:

No clear and unmistakable delegation of arbitrability as to equitable claims. Although the MSA adopts AAA rules (which generally empower arbitrators to decide their own jurisdiction), the arbitration clause’s carve‑out for “injunctive relief or any other form of equitable relief” is embedded in the same operative sentence. Under Archer & White Sales v. Henry Schein, this syntactic structure prevents a finding that the parties “clearly and unmistakably” delegated arbitrability of carved‑out disputes to the arbitrator. Courts therefore decide whether a given dispute falls within the carve‑out.
Aramark’s ERISA claims seek equitable relief (surcharge) against a fiduciary. Assuming Aetna is an ERISA fiduciary for purposes of the appeal, the court holds that Aramark seeks “make‑whole” equitable relief in the form of surcharge and other equitable remedies under §§ 502(a)(2) and (a)(3). The court relies on CIGNA Corp. v. Amara and the Fifth Circuit’s own Gearlds v. Entergy Services, distinguishing the line of Supreme Court cases (Mertens, Great‑West, Sereboff, Montanile) that limit monetary “equitable relief” against non‑fiduciaries. It expressly rejects the Fourth Circuit’s contrary interpretation in Rose v. PSA Airlines.
The case remains in court; the arbitration clause cannot be used to stay or divert these claims. Because (a) the parties did not clearly and unmistakably delegate arbitrability of equitable claims, and (b) Aramark’s claims are equitable and fall within the carve‑out, the district court properly denied a stay pending arbitration. The Texas court, as the first‑filed forum, acted within its discretion in proceeding to decide arbitrability despite a parallel § 4 petition in Connecticut.

Judge Jones concurs that arbitrability was for the courts, but dissents from the conclusion that § 502(a)(3) authorizes monetary “surcharge” against a fiduciary. In her view, Montanile reaffirmed Mertens and Great‑West and implicitly overruled Gearlds; only truly “typical” equitable remedies—injunction, mandamus, and restitution from identifiable funds—remain available under § 502(a)(3), whether the defendant is a fiduciary or not.

IV. Detailed Analysis

A. Arbitrability, Delegation, and the Exclusionary Clause

1. The Two‑Step Arbitrability Framework

The Fifth Circuit follows its settled two‑step approach to arbitrability:

Did the parties form a valid arbitration agreement? (Here, undisputed.)
Does that agreement cover the dispute in question? This includes the antecedent question: who decides (court or arbitrator) whether the dispute is arbitrable?

Parties may contractually delegate “gateway” issues of arbitrability—such as the existence, scope, or enforceability of the arbitration agreement—to the arbitrator. But under First Options, Rent‑A‑Center, and Henry Schein, courts will not infer such a delegation unless there is “clear and unmistakable” evidence of that intent. Absent such clarity, arbitrability remains a judicial question.

2. Incorporation of AAA Rules and the Archer & White Doctrine

Aetna argued that because the MSA adopts the AAA Commercial Arbitration Rules (which contain a “competence‑competence” provision empowering arbitrators to decide their own jurisdiction), the parties clearly and unmistakably delegated arbitrability to the arbitrator.

This position tracks the Fifth Circuit’s earlier decision in Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., which held that express incorporation of AAA rules, standing alone, is strong evidence of delegation. In Crawford Professional Drugs v. CVS Caremark, the court took a similar view even where the contract also contained a carve‑out, but there the carve‑out appeared elsewhere in the agreement, not in the same sentence.

Archer & White Sales v. Henry Schein, however, narrowed the reach of this default rule. The clause in Archer stated that disputes “except actions seeking injunctive relief” were subject to AAA arbitration. Because the carve‑out appeared in the same operative sentence that invoked AAA rules, the court found ambiguity as to whether the parties intended to delegate arbitrability of those carved‑out disputes. It held that AAA incorporation is not dispositive when the structure of the clause suggests a partial carve‑out from both arbitration and delegation.

In Aramark, the critical language tracks Archer even more closely:

“Any controversy or claim … except for temporary, preliminary, or permanent injunctive relief or any other form of equitable relief, shall be settled by binding arbitration … in accordance with the AAA’s Commercial Arbitration Rules.”

The Fifth Circuit reads this as a single integrated sentence, just as in Archer, and therefore treats the carve‑out as potentially limiting not only the scope of arbitration but also the scope of any purported delegation.

3. Textual Canons and Connecticut Contract Law

Because the MSA has a Connecticut choice‑of‑law clause for contract interpretation, the court relies on Connecticut principles (which are consistent with general contract law) and textual canons:

Series‑Qualifier Canon. A postpositive modifier (here, the phrase “except for … injunctive relief or any other form of equitable relief”) ordinarily applies to the entire series that precedes it (“any controversy or claim”). Grammatically, the carve‑out modifies both “controversy” and “claim,” not just one.
Anti‑surplusage canon. Courts avoid interpreting a contract in a way that makes any clause redundant or superfluous. Connecticut follows this rule and strives to give effect to all contract terms.
Contra proferentem. If contractual language is ambiguous, it is construed against the drafter—in this case, Aetna.

Aramark argued—and the court accepts—that the more natural reading is:

Disputes seeking purely legal (monetary) relief: arbitrable; arbitrator decides arbitrability; AAA rules apply.
Disputes seeking injunctive or “any other form of equitable relief”: carved out of arbitration; courts decide such disputes and any threshold arbitrability questions about them.

Aetna attempted to narrow the carve‑out by arguing that:

The carve‑out relates only to remedies (equitable relief) after liability is established, not to who decides arbitrability; and
The final sentence (“The arbitrator may award only monetary relief…”) presupposes that the arbitrator must decide whether a claim is equitable or legal, otherwise that sentence is meaningless.

The Fifth Circuit rejects these arguments for several reasons:

The carve‑out is placed within the arbitration sentence itself, directly modifying “any controversy or claim.” Under both grammar and the series‑qualifier canon, it is best read as excluding disputes seeking equitable relief from the entire arbitration process, not merely limiting remedies available once in arbitration.
If Aetna’s interpretation were adopted, the Exclusionary Clause (“except… equitable relief”) would be largely redundant in light of the final sentence limiting the arbitrator to monetary relief—violating the anti‑surplusage canon.
Any residual ambiguity is construed against Aetna as drafter.

The court therefore concludes there is no clear and unmistakable delegation of arbitrability for disputes seeking equitable relief. Under the Supreme Court’s framework, that means:

Courts—not arbitrators—must decide whether Aramark’s ERISA claims are arbitrable; and
The court must first classify those ERISA claims as “equitable” or “legal,” both for ERISA purposes and for applying the carve‑out.

B. ERISA Remedies: Equitable vs. Legal Relief

1. The Competing Lines of Supreme Court Authority

The opinion provides a careful doctrinal map of ERISA’s remedial jurisprudence. The key distinction is between:

Monetary relief against non‑fiduciaries, where the Supreme Court has been very restrictive; and
Monetary relief against fiduciaries, where Amara (and subsequent Fifth Circuit law) recognize equitable “surcharge” as available under § 502(a)(3).

The core Supreme Court precedents:

Mertens v. Hewitt Associates (1993) – Plan beneficiaries sued a non‑fiduciary actuary for monetary “compensatory” damages. The Court held § 502(a)(3)’s phrase “appropriate equitable relief” refers only to those categories of relief typically available in equity (injunction, mandamus, and equitable restitution), not broad compensatory damages.
Great‑West v. Knudson (2002) – A plan sought reimbursement from a beneficiary’s third‑party settlement. The plan sued in equity but sought a judgment for money after the beneficiary had already dissipated the settlement funds. The Court held this was legal restitution (a claim for money generally) rather than equitable restitution (against particular funds in the defendant’s possession); § 502(a)(3) did not permit such relief.
Sereboff v. Mid Atlantic Medical Services (2006) – Another reimbursement case, but here the plan sought to enforce an equitable lien against a specific fund (the settlement proceeds) that had been preserved. The Court held this was genuine equitable restitution allowed under § 502(a)(3).
CIGNA Corp. v. Amara (2011) – Beneficiaries sued a plan fiduciary over misleading descriptions of pension changes. While the particular posture involved § 502(a)(1)(B), the Court turned to § 502(a)(3) and held that remedies such as plan reformation, estoppel, and surcharge against a trustee are forms of “appropriate equitable relief.” Importantly, the Court emphasized that equity courts could award monetary “compensation” against trustees for breach of duty (surcharge), and that such monetary relief remained equitable even though it took the form of money.
Montanile v. Board of Trustees (2016) – Returning to the reimbursement context against a non‑fiduciary beneficiary, the Court held that once the beneficiary dissipated the specific settlement funds, the plan could not reach the beneficiary’s general assets via § 502(a)(3); that would again be legal, not equitable, restitution. In a key footnote, the Court made two points:
- It reaffirmed that equitable relief under § 502(a)(3) is limited to remedies typically available in equity, especially as to restitutionary claims; and
- It described its discussion of § 502(a)(3) in Amara as “not essential” to that decision and stressed that Amara did not overrule Mertens or Great‑West.

As the Fifth Circuit notes, Mertens, Great‑West, Sereboff, and Montanile all involved non‑fiduciary defendants—typically insurers or plans seeking reimbursement from participants. By contrast, Amara involved a classic trust‑like relationship: beneficiaries suing a plan fiduciary.

2. The Fifth Circuit’s Own Course: From Amschwand to Gearlds

In Amschwand v. Spherion Corp. (2007), the Fifth Circuit treated Mertens and Great‑West broadly and held that a beneficiary could not recover life‑insurance benefits under § 502(a)(3) from a fiduciary; monetary relief was deemed inherently “legal.”

After Amara, the Fifth Circuit reversed course in Gearlds v. Entergy Services, Inc. (2013). There, the plaintiff sued a fiduciary under § 502(a)(3) seeking monetary relief for a fiduciary breach. The court:

Recognized Amara’s detailed discussion of surcharge as “exclusively equitable” monetary relief against a trustee;
Concluded that Amara had undermined Amschwand’s reading of § 502(a)(3); and
Held that a claim for monetary make‑whole relief against a fiduciary is viable equitable relief under § 502(a)(3).

Thus, by the time Aramark reached the court, Fifth Circuit law was that:

Monetary relief against non‑fiduciaries under § 502(a)(3) is tightly constrained (only equitable restitution from identifiable funds); but
Monetary surcharge against fiduciaries is permissible equitable relief under § 502(a)(3), consistent with trust‑law traditions.

3. Montanile and the Attempted Collapse of the Fiduciary/Non‑Fiduciary Distinction

Aetna seized on Montanile and the Fourth Circuit’s reading in Rose v. PSA Airlines, arguing that the fiduciary/non‑fiduciary distinction has effectively collapsed and that all compensatory monetary awards—even against fiduciaries—fall outside § 502(a)(3).

The Fifth Circuit rejects this position. It reasons:

Montanile is another case about monetary relief against a non‑fiduciary, in the restitutionary reimbursement setting, and it does not purport to address fiduciary surcharge.
Montanile expressly states that its interpretation of “equitable relief” in Mertens, Great‑West, and Sereboff “remains unchanged,” but those cases dealt only with non‑fiduciaries.
Amara itself emphasized that “the fact that the defendant in this case, unlike the defendant in Mertens, is analogous to a trustee makes a critical difference.” That statement preserves the importance of fiduciary status in defining available equitable relief.
Nothing in Montanile explicitly or implicitly overrules Gearlds, which squarely adopted Amara’s view of surcharge as equitable relief against fiduciaries.

Under the Fifth Circuit’s own rule for when Supreme Court decisions implicitly overrule circuit precedent, Montanile does not “establish[ ] a rule of law inconsistent with” Gearlds, so Gearlds remains binding.

4. Application to Aramark’s Claims

Because Aetna does not seriously contest its fiduciary status for purposes of this interlocutory appeal, the court proceeds on that assumption. It then:

Characterizes Aramark’s suit as one brought by a fiduciary on behalf of the plans, alleging fiduciary breaches and prohibited transactions by another fiduciary (Aetna); and
Identifies the relief sought as “make‑whole” compensation for plan losses caused by those breaches, i.e., classic equitable surcharge plus associated equitable remedies (such as disgorgement or other equitable restitution of ill‑gotten gains).

Referring back to Amara and Gearlds, the court holds that:

This relief, though monetary in form, is equitable in function;
It falls within the meaning of “other appropriate equitable relief” under § 502(a)(3) and the relief “under § 1109” referenced in § 502(a)(2); and
Therefore, Aramark’s claims are claims for equitable relief for purposes of both ERISA and the MSA’s arbitration carve‑out.

Consequently:

As a matter of ERISA law: Aramark has stated equitable claims cognizable under §§ 502(a)(2) and (a)(3), notwithstanding Aetna’s argument that the relief is “legal” and hence beyond those provisions.
As a matter of contract law: The claims fall squarely within the MSA’s carve‑out for “any… form of equitable relief,” and thus are not subject to mandatory arbitration under Section 15.

C. The Discretionary Stay and Parallel FAA Proceedings

The final issue concerns the interplay between:

A § 3 motion to stay litigation “in any court” where a suit is pending, if the issue is referable to arbitration; and
A § 4 petition to compel arbitration “in any United States district court” which would have jurisdiction, filed separately in the district specified by the arbitration clause (here, Connecticut).

The Texas case was clearly first‑filed. Under the first‑to‑file rule and general principles of comity, the Fifth Circuit allows the first‑filed court to proceed absent compelling reasons otherwise.

Aetna argued that:

Because the MSA specified Hartford, Connecticut, as the seat of arbitration, only the District of Connecticut should decide the arbitrability and compel arbitration; and
The Texas district court should have stayed its hand in favor of the Connecticut proceeding.

The Fifth Circuit disagrees, for several reasons:

Text of the FAA. Section 3 obligates a court to stay litigation only when it is “satisfied that the issue involved … is referable to arbitration.” Because the Texas court concluded—correctly, in the Fifth Circuit’s view—that the claims were not referable to arbitration, it had no duty to stay.
Prior Fifth Circuit precedent. In cases such as Dupuy‑Busching General Agency, Inc. v. Ambassador Ins. Co. and Municipal Energy Agency v. Big Rivers Electric Corp., the Fifth Circuit has recognized that a district court may compel arbitration in another district or in the contractually designated arbitral forum; the venue of the arbitral seat does not limit the court’s authority to decide arbitrability.
Contractual language. The MSA provides that arbitration shall take place in Hartford and that Connecticut law applies where federal law is silent. It does not stipulate that all judicial proceedings related to arbitration must be filed or decided only in Connecticut.
Reasoned decision‑making. The Texas court carefully analyzed arbitrability under the MSA and ERISA, provided a reasoned opinion, and promptly ruled on Aetna’s § 3 motion. There was no arbitrary or capricious handling of the parallel proceedings.

Given those factors, the Fifth Circuit finds no abuse of discretion in the Texas court’s refusal to stay its case or to defer to the later‑filed Connecticut action.

D. The Concurrence and Dissent: A Deepening Circuit Split on ERISA “Equitable Relief”

Judge Jones concurs in the arbitrability analysis but sharply dissents from the treatment of Aramark’s remedies as “equitable” under § 502(a)(3).

1. Jones’s Reading of Mertens, Amara, and Montanile

Judge Jones returns to the conceptual framework of Mertens:

Section 502(a)(3) authorizes only those categories of relief “typically available in equity,” such as injunction, mandamus, and equitable restitution—not compensatory damages.
In Mertens and Great‑West, the Court rejected efforts to broaden § 502(a)(3) by invoking the “full range” of equitable remedies available in particular equity courts; the test is not whether equity courts ever awarded such relief, but whether the relief is typically equitable.

She acknowledges Amara’s discussion of surcharge but emphasizes that:

That discussion was explicitly flagged as dicta by Justice Scalia in his separate opinion and was not necessary to the judgment; and
Montanile later clarified that the Court’s interpretation of “equitable relief” in Mertens, Great‑West, and Sereboff “remains unchanged” and that Amara did not “all but overrule” those holdings.

In her view, Montanile:

Reaffirms a strict, historically grounded understanding of “equitable relief” as limited primarily to traditional equitable remedies and restitution from identifiable funds; and
Undermines the broader, surcharge‑friendly reading adopted in Gearlds.

2. Alignment with Rose and Aldridge

Judge Jones endorses the reasoning of the Fourth Circuit in Rose v. PSA Airlines and notes that the Sixth Circuit has likewise adopted that approach in Aldridge v. Regions Bank:

Those courts have concluded that § 502(a)(3) does not allow make‑whole monetary relief (even against fiduciaries) that is essentially compensatory damages under another label.
They read Montanile as rejecting any broadening of equity via Amara’s dicta and as insisting that only truly “typical” equitable remedies remain available under § 502(a)(3)—regardless of whether the defendant is a fiduciary or not.

Judge Jones would thus repudiate Gearlds as implicitly overruled by Montanile and revert to the more restrictive approach of Amschwand.

3. Varity’s “Catchall” Principle

Jones also gestures toward Varity Corp. v. Howe, which characterized § 502(a)(3) as a “catchall” provision, available only when no other ERISA remedial path can provide adequate relief. She notes that:

§ 502(a)(2) and § 409(a) provide legal and equitable remedies on behalf of the plan for fiduciary breaches; but
Relief under § 502(a)(2) runs to “the plan,” not to an employer or sponsor individually—raising questions about Aramark’s desired recovery as plan funder.

Although the majority does not engage this issue in detail, Jones suggests that Aramark’s effort to style its claim as equitable under § 502(a)(3) may improperly circumvent the structure of § 502(a)(2).

4. Practical Effect of the Dissent

The dissent highlights an emerging and now quite sharp circuit conflict:

Fifth Circuit (Aramark, Gearlds): Monetary surcharge against fiduciaries is equitable under § 502(a)(3), available even in make‑whole form, and thus potentially non‑arbitrable if contractually carved out.
Fourth Circuit (Rose) and Sixth Circuit (Aldridge): Monetary make‑whole relief—even labeled “surcharge”—is not “typical” equitable relief and is not authorized by § 502(a)(3); Amara’s surcharge discussion is non‑binding dicta constrained by Montanile.

This conflict makes Aramark a strong candidate for eventual Supreme Court review if and when a petition raises the remedial issue squarely.

V. Impact and Implications

A. For Arbitration Clauses and Delegation Drafting

From a drafting perspective, Aramark reinforces and extends Archer & White:

Merely adopting AAA rules does not guarantee delegation of arbitrability if the arbitration clause:
- Contains a carve‑out for certain categories of claims (e.g., injunctive or equitable relief); and
- Places that carve‑out in the same operative sentence as the reference to AAA rules.
If parties intend the arbitrator to decide whether a claim falls inside or outside a carve‑out, they must say so in clear and unmistakable terms—for example, by:
- Stating that “the arbitrator shall decide any dispute, including whether a claim is subject to this carve‑out”; or
- Separating the delegation clause into a stand‑alone provision that applies to “any dispute regarding the scope, applicability, or enforceability of this arbitration agreement, including claims for equitable relief.”

In the Fifth Circuit (Texas, Louisiana, Mississippi), arbitration clauses that follow the Archer/Aramark pattern—AAA incorporation plus an in‑sentence carve‑out—will almost certainly result in:

Courts deciding arbitrability; and
Carved‑out claims (e.g., equitable ERISA fiduciary claims) remaining in court.

B. For ERISA Fiduciary Litigation

Substantively, the decision:

Reaffirms a robust equitable‑surcharge remedy against fiduciaries. In the Fifth Circuit, fiduciaries (including TPAs) face exposure to significant monetary make‑whole relief for plan losses under § 502(a)(3), so long as the relief is structured as restoration of plan losses and/or disgorgement of unjust gains.
Confirms that such relief is “equitable” even though monetary. That characterization has two important consequences:
- It satisfies § 502(a)(3)’s limitation to “appropriate equitable relief”; and
- It can trigger contractual carve‑outs from arbitration, keeping fiduciary‑breach litigation in court.
Heightens forum‑selection gamesmanship. Plan sponsors and committees in the Fifth Circuit may be more inclined to plead fiduciary‑breach claims as equitable surcharge in order both to fit within ERISA and to avoid arbitration where carve‑outs exist.

On the other side, service providers and TPAs are likely to respond by:

Drafting arbitration clauses with more explicit delegation language and fewer, narrower carve‑outs; and
Structuring their ERISA roles to limit or disclaim fiduciary status where possible, to avoid surcharge exposure.

C. For FAA Practice and Parallel Proceedings

Procedurally, Aramark sends clear signals:

A party cannot easily “outflank” a first‑filed district court by rushing to file a § 4 petition in the arbitral seat and then seeking to halt the original litigation. The first‑filed court retains broad discretion to decide arbitrability and deny a stay under § 3 if it concludes the dispute is not referable to arbitration.
Contract clauses specifying an arbitral seat (e.g., “arbitration in Hartford, CT”) do not require all related judicial proceedings to be brought only in that district, absent explicit forum‑selection language.

This may discourage fragmented FAA litigation strategies and encourage parties to litigate arbitrability comprehensively in the first forum where substantive suit is filed.

D. The Likely Development of the Circuit Split

The majority’s explicit rejection of the Fourth Circuit’s Rose decision—and the dissent’s endorsement of Rose and the Sixth Circuit’s Aldridge—solidify a live circuit split on the scope of “equitable relief” under § 502(a)(3) as applied to fiduciaries.

The practical stakes are large:

In circuits following Aramark/Gearlds, fiduciaries may be liable for substantial monetary surcharge under § 502(a)(3), and such claims may escape arbitration via carve‑outs.
In circuits following Rose/Aldridge, plaintiffs may be confined to:
- § 502(a)(2)/§ 409(a) remedies on behalf of the plan (which may not always benefit individual participants or sponsors in the same way); and
- Narrower forms of equitable relief like injunctions, plan reformation, or equitable restitution from specific funds.

Given the frequency of ERISA fiduciary litigation and the centrality of arbitration in benefits disputes, this split has both doctrinal and practical importance and increases the likelihood of future Supreme Court review.

VI. Complex Concepts Simplified

A. “Arbitrability” and Delegation

Arbitrability refers to whether a particular dispute must be resolved in arbitration rather than in court, based on the parties’ contract.
Normally, courts decide arbitrability unless the parties clearly and unmistakably agree that the arbitrator will decide that threshold question (a “delegation” clause).
Incorporating AAA rules is often treated as a sign of delegation because AAA rules give arbitrators jurisdiction to decide their own authority. But when there is a carve‑out for certain claims in the same sentence, as in Archer and Aramark, courts treat the question as ambiguous and retain power to decide arbitrability.

B. Equitable vs. Legal Relief Under ERISA

Legal relief typically means money damages—compensation for loss that a court of law could award on a contract or tort claim.
Equitable relief includes:
- Injunctions (orders to do or stop doing something);
- Mandamus (orders to perform a legal duty);
- Equitable restitution (return of specific money or property wrongfully held);
- Surcharge (a trustee’s personal monetary liability to make the trust whole for breach of fiduciary duty).
Under ERISA § 502(a)(3), only “appropriate equitable relief” is allowed. So courts must classify the requested remedy as equitable or legal. For fiduciary‑breach cases, Amara and Gearlds treat surcharge as equitable even though it involves money; Rose and Aldridge disagree.

C. ERISA Fiduciaries and Surcharge

An ERISA fiduciary includes anyone who:
- Exercises discretionary authority or control over plan management or assets, or
- Has discretionary responsibility in plan administration.
Surcharge is a concept borrowed from trust law: when a trustee breaches fiduciary duties and causes loss to the trust, a court of equity can order the trustee personally to pay money to restore the trust to the position it would have been in absent the breach.
The key question is whether this kind of monetary “make‑whole” order counts as “equitable relief” under ERISA. The Fifth Circuit says yes; some other circuits say no.

D. FAA §§ 3 and 4

Section 3: If a lawsuit involves an issue that is “referable to arbitration” under a written arbitration agreement, the court “shall” stay the action on a party’s motion—but only if the court is satisfied that the dispute is indeed arbitrable.
Section 4: A party may file a separate petition in federal court to compel arbitration. That petition is usually filed in a district that would have jurisdiction and often in the district where the arbitration is to take place.
In Aramark, the Texas court (facing the underlying ERISA suit and a § 3 motion) was the first‑filed forum. It concluded the dispute was not referable to arbitration and thus properly denied a stay. The later‑filed § 4 petition in Connecticut was stayed pending that determination.

VII. Conclusion

Aramark Services v. Aetna Life Insurance Co. is a consequential Fifth Circuit decision on two fronts.

First, it consolidates and extends the court’s arbitration jurisprudence post‑Henry Schein and Archer & White. Where an arbitration clause both incorporates AAA rules and, in the same sentence, carves out claims seeking “injunctive or any other form of equitable relief,” there is no “clear and unmistakable” delegation of arbitrability of those carved‑out disputes to the arbitrator. Courts retain authority to decide arbitrability, and claims fitting the carve‑out will remain in court.

Second, it reaffirms a robust conception of equitable remedies under ERISA when fiduciaries are defendants. Monetary make‑whole relief in the form of equitable surcharge against a fiduciary is treated as “equitable relief” within § 502(a)(2) and (a)(3) and, in this case, within the MSA’s carve‑out from arbitration. This squarely departs from the narrower reading adopted by the Fourth and Sixth Circuits and sets up a significant circuit split over ERISA’s remedial reach.

On the procedural side, the decision underscores that first‑filed district courts need not cede control to later‑filed FAA petitions in the arbitral seat; they may resolve arbitrability and deny stays when the contract does not clearly require arbitration of the dispute at hand.

For ERISA practitioners and contract drafters in the Fifth Circuit, Aramark carries clear lessons: carve‑outs for “equitable relief” can and will keep fiduciary‑breach disputes in court unless delegation is drafted with exceptional clarity; and fiduciaries remain exposed to substantial equitable surcharge liability for plan losses, at least unless and until the Supreme Court intervenes to resolve the growing circuit divide.