                             In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 08-1699

A NGUS M. D UTHIE and M ICHAEL J. C ONDRON,

                                                Plaintiffs-Appellees,
                                 v.


M ATRIA H EALTHCARE, INC.,
                                              Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 07 C 5491—Jeffrey N. Cole, Magistrate Judge.
                         ____________

      A RGUED M AY 27, 2008—D ECIDED A UGUST 28, 2008
                         ____________



 Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. This case arises out of the
merger of CorSolutions Medical, Inc. with a subsidiary of
Matria Healthcare, Inc., in a deal worth hundreds of
millions of dollars. Angus Duthie and Michael Condron
were CorSolutions officers prior to the merger. We con-
sider in this appeal whether the merger agreement man-
dates arbitration of fraud claims that Matria asserts
2                                              No. 08-1699

against Duthie and Condron individually, seeking re-
covery from their personal assets. Because we conclude
the agreement does not require these claims to be arbi-
trated, we affirm the district court’s decision to enjoin
Matria from pursuing the claims in a pending arbitration
proceeding.


                   I. BACKGROUND
  Matria and CorSolutions provide services to employers,
health plans, and government-sponsored health care
programs. Pursuant to an Agreement and Plan of Merger
signed December 14, 2005 (the “Agreement”), CorSolutions
agreed to merge with Coral Acquisition Corp., a Matria
subsidiary. CorSolutions became the surviving corpora-
tion after the merger and a wholly-owned subsidiary of
Matria. The merger agreement spanned seventy-one single-
spaced pages.
  Angus Duthie and Michael Condron, the plaintiffs in
this case, were CorSolutions officers. Duthie was its
chairman and Chief Executive Officer, and Condron served
as the president and Chief Operating Officer. The two
remained CorSolutions officers for a time after the merger.
At the time of the merger, Duthie owned CorSolutions
shares that represented a 0.45% ownership interest in
the company. Condron did not own any CorSolutions
shares when the Agreement was signed but became a
shareholder sixteen days later, when he exercised options
and acquired 124,000 shares of CorSolutions’s common
stock, which comprised about 2.4% of the company’s
outstanding shares at the time. Duthie signed the Agree-
No. 08-1699                                                3

ment, but only in his capacity as chairman and CEO.
Condron did not sign the Agreement.
  Pursuant to the Agreement, $20.3 million went into the
Escrow Account, an account set up to satisfy certain
potential post-closing claims and adjustments contem-
plated by the Agreement. The Agreement appointed Coral
SR, LLC as the “Stakeholder Representative,” meaning
that it was “constituted to act as the representative, agent,
and attorney-in-fact for the Stakeholders and their succes-
sors and assigns . . . for all purposes under this Agreement,
the Escrow Agreement and the Agent’s Escrow Agree-
ment.” Agrt. § 2.4(a). The Agreement defines the “Stake-
holders” as “the holders of Common Stock, the holders
of Preferred Stock, the holders of Company Options and
the holders of Company Warrants.” Agrt. § 1.1. Duthie
and Condron are both “Stakeholders” under the Agree-
ment’s definition of the term.
  The Agreement provides for four different arbitration
forums. The Settlement Accountant, an independent
accounting firm, is to resolve post-closing disputes over
balance adjustments and working capital computations.
Agrt. § 2.9(b). A Tax Arbitrator, a senior tax partner in a
mutually agreeable accounting firm, would resolve any
tax-related matters. Agrt. § 5.12(h). The BIPA Arbitrator
is to resolve disputes concerning a refund CorSolutions
owed to the Centers for Medicare & Medicaid Services.
Agrt. § 7.5(d). And, in the section most relevant to this
case, section 7.4 provided for arbitration of certain dis-
putes in accordance with the Commercial Arbitration
rules of the American Arbitration Association (“AAA”).
4                                             No. 08-1699

  We would not be here, of course, if all had gone
smoothly. Instead, according to Matria, the very day after
the merger closed, one of CorSolutions’s customers in-
formed Matria that it planned to conduct an audit of
CorSolutions’s disease management programs. That was
news to Matria, and it maintains that CorSolutions and its
officers knew about the customer’s concerns before the
merger but failed to convey them to Matria.
  In October 2006, Coral SR initiated AAA arbitration
proceedings against Matria. Matria responded by filing
a suit in the Delaware Court of Chancery seeking to
enjoin the arbitration and asserting claims against Coral
SR based on alleged inaccuracies in the Agreement’s
representations and warranties. Matria did not sue any
individuals in the Delaware case. On March 1, 2007, the
Delaware court held that the Agreement required arbitra-
tion of the fraud claims that Matria had asserted against
Coral SR seeking recovery from the Escrow Fund. Matria
Healthcare, Inc. v. Coral SR LLC, No. 2513-N, 2007 WL
763303, at * 9 (Del. Ch. Mar. 1, 2007).
  Two months later, Matria asserted counterclaims in
the AAA arbitration against Coral SR for fraud, equitable
fraud, and breach of contract. Matria also asserted counts
of fraud, equitable fraud, and breach of contract against
Duthie and Condron in the same filing, alleging that the
two had knowingly withheld information and made
multiple misrepresentations. Duthie and Condron then
moved to dismiss the claims against them in arbitration
for lack of jurisdiction. The arbitration panel denied the
motion. Duthie and Condron subsequently filed a com-
No. 08-1699                                                5

plaint seeking a declaration that Matria’s claims against
them were not arbitrable and a preliminary injunction
preventing Matria from proceeding against them in
the arbitration. The magistrate judge entered an order
preliminarily enjoining Matria from proceeding in the
arbitration against Duthie and Condron, and Matria
appeals from that decision.


                      II. ANALYSIS
  This case involves a complex transaction that yielded
complex documentation; we begin with first principles.
“Although the Federal Arbitration Act favors resolution
of disputes through arbitration, its provisions are not to
be construed so broadly as to include claims that were
never intended for arbitration.” Continental Cas. Co. v. Am.
Nat. Ins. Co., 417 F.3d 727, 730 (7th Cir. 2005) (quoting
Am. Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 929
(7th Cir. 2003)). That is, “arbitration is a matter of con-
tract and a party cannot be required to submit to arbitra-
tion any dispute which he has not agreed so to submit.”
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)
(citation omitted).
  Whether a particular dispute must be arbitrated is
generally a question for judicial determination, unless the
parties “clearly and unmistakably” provided otherwise
in their agreement. Id. Neither party disputes that the
court, and not the arbitration panel, should decide the
arbitrability question in this case. Nor is there clear and
unmistakable evidence to the contrary in the Agreement,
and so we proceed.
6                                               No. 08-1699

  Whether the parties agreed to arbitrate is a matter of
state contract law. Hawkins v. Aid Ass’n for Lutherans, 338
F.3d 801, 806 (7th Cir. 2003). In this case, Delaware law
controls. Agrt. § 9.6. As with any contract, our task is to
interpret the Agreement in a manner that satisfies the
“reasonable expectations of the parties at the time they
entered the contract.” Dittrick v. Chalfant, 948 A.2d 400,
406 (Del. Ch. 2007) (citation omitted). We are nonethe-
less mindful that the Federal Arbitration Act “ ‘is a con-
gressional declaration of a liberal federal policy favoring
arbitration agreements’ and ‘that questions of arbitrability
must be addressed with a healthy regard for the federal
policy favoring arbitration.’ ” Continental Cas. Co., 417
F.3d at 730-31 (citing Moses H. Cone Mem’l Hosp. v. Mercury
Const. Corp., 460 U.S. 1, 24 (1983)).
  This case comes to us on appeal from the grant of a
preliminary injunction, and the relevant inquiry in this
case is whether Duthie and Condron demonstrated a
likelihood of success on the merits. See St. John’s United
Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th
Cir. 2007) (listing factors court should consider when
determining whether to grant preliminary injunction). We
ultimately review whether a district court should have
granted a preliminary injunction for an abuse of discretion.
Miller v. Flume, 139 F.3d 1130, 1134 (7th Cir. 1998). The
likelihood of the success on the merits in this case
depends on the soundness of the district court’s inter-
pretation of the Agreement’s language, see id. at 1135,
however, and we review a district court’s interpreta-
tions of the merger agreement de novo, see Fyrnetics
No. 08-1699                                                 7

Ltd. v. Quantum Group, Inc., 293 F.3d 1023, 1029 (7th Cir.
2002).
  The question on appeal is whether the Agreement
mandates arbitration before the AAA of the claims Matria
asserted against Duthie and Condron in the AAA proceed-
ing. These claims allege that Duthie and Condron made
fraudulent misrepresentations and omissions both in
person and in the Agreement, and they seek recovery
from Duthie and Condron’s personal assets. Matria
argues that these claims must be arbitrated because: (1) it
contends that the Agreement mandates that any claim
involving misrepresentations or omissions arising out of
the merger must be arbitrated, and (2) according to Matria,
the Delaware Court of Chancery already said they must be.


 A. The Agreement does not require arbitration of all
    claims.
  As support for its argument that the Agreement requires
arbitration of all claims arising out of the Agreement,
Matria turns principally to certain language in section
7.3(d)(ii). This section provides in full:
   In accordance with the terms of the Escrow Agree-
   ment, for a period of twenty-four (24) months after
   the Closing Date, Parent shall be entitled to make
   claims against the Escrow Fund with respect to
   Damages arising out of or resulting from, or
   amounts payable with respect to, the matters set
   forth in Section 7.1 (other than Section 7.1(a), which
   is the subject of Section 7.4(d)(i) and subject to
8                                                    No. 08-1699

    the limitation in Section 7.3(d)(iii); it being under-
    stood that in the event Parent shall have timely
    delivered notice of any claim on the Escrow Fund
    pursuant to Section 7.1, such claim shall survive
    until such time as such claim is finally resolved.
    The parties intend to shorten the statute of limita-
    tions and agree that, after the Closing Date, any
    claim or cause of action against any of the parties hereto,
    or any of their respective directors, officers, employees,
    Affiliates, successors, permitted assigns, or Representa-
    tives based upon, directly or indirectly, any of the
    representations or warranties, covenants or agreements
    contained in this Agreement, or any other agreement,
    document or instrument to be executed and delivered in
    connection with this Agreement may be brought only as
    expressly provided in this Article VII.
(Emphasis added.)
  We do not agree that the portion of the provision we
italicized above mandates arbitration of any claim
alleging that a director or officer made misrepresent-
ations in the Agreement. Consistent with section 7.3(d)’s
“Survival of Representations and Warranties; Claims
Period” heading, the point of this section is to shorten
the statute of limitations for claims against the Escrow
Fund. Shortening the time period for bringing such claims
reflects a reasonable desire for finality concerning the
amount in the Fund so that the remainder can be distrib-
uted to the Stakeholders within a reasonable period of
time. And although section 7.3(d)(ii) expressly mentions
directors and officers, it does not state that any claim
No. 08-1699                                                 9

against a director or officer is arbitrable. Instead, it pro-
vides that claims against directors and officers may be
brought “only” as “expressly provided” in Article VII.
  Nothing in Article VII expressly provides for arbitra-
tion of claims against individual defendants for their
personal assets. Instead, consistent with its head-
ing, “Claims on Escrow Funds,” Article VII only provides
for arbitration of claims against the Escrow Fund. Ten and
a half pages long, Article VII sets forth detailed provisions
relating to claims on the “Escrow Fund,” a term it mentions
over forty times. Section 7.1 sets forth the circumstances
under which Matria can make a claim against the Escrow
Fund. Section 7.2 specifies the claims process. Section 7.3
details certain limitations on claims. For example, section
7.3(b) specifies that the maximum liability for Matria’s
claims on the Escrow Fund is the amount in the Escrow
Fund, and it further provides that neither Coral SR nor
any Stakeholder has any obligation to contribute money
to the Escrow Fund under any circumstance.
  The next section, section 7.4, is critical to this case. It
provides:
    Section 7.4. Disputes. In the event of a post-Closing
    dispute between the Parent and the Stakeholder
    Representative relating to any Claim other than a
    Third Party Claim that is the subject of litigation
    (“Escrow Fund Dispute”) or any claim subject to
    Section 5.12 or Section 7.5, the Stakeholder Repre-
    sentative and Parent shall seek in good faith to
    negotiate a resolution of such Escrow Fund Dis-
    pute within ninety (90) days of receipt by the
10                                                    No. 08-1699

     Stakeholder Representative of a Claim Notice. If
     the Stakeholder Representative and Parent are not
     able to resolve such Escrow Fund Dispute, all of
     the parties hereto agree that such Escrow Fund
     Dispute shall be exclusively and finally settled by
     arbitration in accordance with the Commercial
     Arbitration Rules of the AAA . . . .
  Section 7.4, then, only mandates the arbitration of an
“Escrow Fund Dispute.” The dispute here is neither
between the proper parties nor of the proper subject to
constitute an “Escrow Fund Dispute” under the Agree-
ment. First, the dispute is not one “between the Stake-
holder Representative and Parent,” the entities that section
7.4 defines as the parties to an “Escrow Fund Dispute.” The
Agreement defines the “Parent” as Matria and the “Stake-
holder Representative” as Coral SR. But the claims at
issue in this appeal are between Matria and individual
officers. Cf. Matria Healthcare, Inc., 2007 WL 763303 (suit
between Matria and Coral SR).
  The Agreement also not equate the “Stakeholder Repre-
sentative” to the individual “Stakeholders” (nor does
Matria argue that it does). The Agreement specifies that
the “Stakeholder Representative” is Coral SR, and that
Coral SR acts as the representative for the individual
“Stakeholders” for purposes under the Agreement. When
referring only to these individuals, the Agreement uses
the term “Stakeholder” or “Stakeholders”. See, e.g.,
Agrt. §§ 2.3(a), 2.9(c), 2.14, 3.17, 7.3(b), 8.2, 9.10. Section 7.4,
however, only refers to disputes in which the “Stakeholder
Representative” is a party.
No. 08-1699                                              11

  In addition, the recovery Matria seeks in its claims
against the individual officers is not of the type that
section 7.4 makes arbitrable as an “Escrow Fund Dispute.”
We note first that although the claims Matria filed in
arbitration against Coral SR and Duthie and Condron
asked for recovery from the Escrow Fund as well as from
Duthie and Condron’s personal assets, Matria readily
acknowledges that it could only obtain recovery from the
Escrow Fund by arbitrating claims against Coral SR.
Opening Br. at 19, Reply Br. at 2 n.2. The question at
issue in this appeal, then, only concerns claims for
personal assets.
  Such claims do not fall within the scope of section 7.4,
which only compels arbitration of claims on the Escrow
Fund. To fall within section 7.4’s purview, a dispute must
relate to a “Claim,” which the Agreement defines to
include “Third Party Claims” (not relevant here) and
“Direct Claims.” A “Direct Claim” under the Agreement
is one where the “Parent shall be entitled to make a
claim for Damages pursuant to Section 7.1.” Agrt. § 7.2(a).
A claim for “Damages” under section 7.1 is a claim “against
the Escrow Fund in accordance with the terms of the
Escrow Agreement.” (Emphasis added.) Because the
claims at issue seek recovery from Duthie and Condron’s
personal assets, not from the money in the Escrow Fund,
section 7.4 does not apply to these claims.
  The text of Article VII as a whole reinforces this conclu-
sion. The parties seemed to approach Article VII, the
section entitled “Claims on Escrow Fund,” with particular
care. It alone takes up over ten pages with detailed provi-
12                                                No. 08-1699

sions including a shortened statute of limitations, a prohi-
bition on punitive damages, and a ceiling for liability. Yet
it does not state anywhere that claims for amounts from
sources other than the Escrow Fund must be arbitrated.
  The other provision to which Matria turns in support
of its position that the Agreement requires arbitration of
all, or at least nearly all, claims, section 9.7, also does not
help it. Section 9.7 has two (very long) sentences. The first
reads:
     Consent to Jurisdiction. Except as provided in
     Sections 2.9 (Post-Closing Adjustment of Initial
     Merger Consideration), 5.12(h) (Tax Disputes), 7.4
     (Escrow Fund Disputes) and 7.5 (BIPA Claims)
     herein, each of the parties hereto: (a) irrevocably
     consents to submit itself to the personal jurisdic-
     tion of any state or federal court of competent
     jurisdiction located in the City of Wilmington in
     the State of Delaware, for the purpose of any action
     or proceeding arising out of this Agreement or any
     of the transactions contemplated by this Agree-
     ment, (b) agrees that it will not attempt to deny or
     defeat such personal jurisdiction by motion or
     other request for leave from any such court and
     (c) agrees that, except in any action brought
     against the party in another jurisdiction by an
     independent third party, it will not bring any
     action relating to this Agreement or any transac-
     tions contemplated by this Agreement in any
     court other than a state or federal court of compe-
     tent jurisdiction located in the City of Wilmington
No. 08-1699                                                   13

    in the State of Delaware, except for the purpose of
    enforcing any award or decision.
And the second sentence says:
    For the avoidance of doubt, except for claims for
    specific performance arising after the date hereof and
    prior to the Closing, any claims arising out of this
    Agreement, or the breach, termination or validity
    thereof, shall be finally and exclusively determined by
    arbitration in accordance with Sections 2.9 (Post-
    Closing Adjustment of Initial Merger Consider-
    ation), 5.12(h) (Tax Disputes), 7.4 (Escrow Fund
    Disputes) or 7.5 (BIPA Claims).
(Emphasis added.) Matria contends that the use of “any
claims” in the second sentence can only mean that any
and all claims arising out of the Agreement, save for
specific performance claims that the first sentence specifi-
cally excludes, must be arbitrated.
  Although this section could have been written more
clearly, we do not read it to mandate arbitration of all
claims arising out of the Agreement. Matria attempts to
place section 9.7 on par with all-encompassing arbitra-
tion clauses such as the one in Kiefer Specialty Flooring,
Inc. v. Tarkett, Inc., 174 F.3d 907, 909-10 (7th Cir. 1999),
which stated that “any controversy or claims arising out of
or relating to . . . the Agreement . . . shall be settled by
arbitration.” We read those clauses broadly and attach a
presumption of arbitration. See id. Here, however, the
second sentence in section 9.7 does not end with the
statement that any claims arising out of the agreement
14                                                 No. 08-1699

“shall be finally and exclusively determined by arbitra-
tion”; instead, the sentence states that the claims “shall be
finally and exclusively determined by arbitration in
accordance with” (emphasis added) four specific sections
in the agreement. Cf. Wellborn Clinic v. Medquist, Inc., 301
F.3d 634, 639 (7th Cir. 2002). None of the four sections
listed in section 9.7’s second sentence required arbitra-
tion in this case, and we do not read this section to man-
date arbitration in instances that fall outside the scope
of those four sections.
  Reading section 9.7 as a whole supports Duthie and
Condron’s position. The first sentence of the section
provides that “except as” provided in four specific sec-
tions, the parties agreed to jurisdiction in federal or state
courts in Delaware “for the purpose of any action or
proceeding arising out of this Agreement.” If all claims
arising out of the Agreement were arbitrable as Matria
maintains, there would be little need to consent to juris-
diction in Delaware for “any action or proceeding arising
out of” the Agreement. And as the district court recog-
nized, it would seem odd that the parties to the Agree-
ment meant to expand substantially the claims for which
arbitration is mandatory by a single sentence at the end
of a “Consent to Jurisdiction” section.1



1
  We note that although section 7.3(d)(ii) might suggest that
Matria would be left without a place to bring a claim of fraud
against individual officers if the claim could not be arbitrated
under Article VII, Duthie and Condron do not go that far. They
acknowledged to us that a court would be the proper forum
for Matria’s fraud claims against them.
No. 08-1699                                                    15

  B. The Delaware Court of Chancery did not address
     the issue before us.
  Matria also argues that the district court’s decision
conflicts with the Delaware Court of Chancery’s determi-
nation that Matria’s fraud claims against Coral SR were
arbitrable under the Agreement. Article VII mentions
fraud claims in section 7.3(d)(iv), which provides in part:
    . . . except for claims involving fraud [and certain
    other causes of action], from and after the Closing,
    the right to make a claim on the Escrow Fund
    provided for in this Article VII pursuant to the
    provisions of this Article VII . . . shall be the exclu-
    sive remedy of Parent . . . for any breach of or
    inaccuracy in any representation or warranty or
    any non-compliance with or breach of or default
    in the performance of any of the covenants or
    agreements contained in this Agreement . . . .
  Section 7.3(d)(iv) makes clear that Matria’s recourse
for fraud is not limited to a claim on the amount in the
Escrow Fund. But the section does not state that all fraud
claims must be arbitrated before the AAA; in fact, the
section does not specify any forum at all for fraud claims.
The upshot is that while section 7.3(d)(iv) does not prohibit
Matria from asserting a claim on the Escrow Fund on the
basis of fraud, the provision also does not require the
parties to arbitrate a fraud action that does not make a
claim on the Escrow Fund. The latter situation is the one
we have here.
 There are plausible reasons why the parties to the
Agreement would have agreed to this approach. The
16                                              No. 08-1699

parties seemed to have wanted claims on the Escrow Fund
resolved quickly so that any money left over in the Fund
could be distributed to Stakeholders in a timely manner
(the Agreement specifies in section 7.6 that the amount
remaining in the Escrow Fund after all post-closing
adjustments and claims had been satisfied would be
distributed to the Stakeholders), hence the Agreement’s
shortened statute of limitations on Escrow Fund claims.
For fraud claims, however, the Agreement does not
attempt to shorten the statute of limitations, nor does it
attempt to limit Matria’s potential recovery. Cf. Agrt.
§ 7.3(b) (maximum amount available to Matria for claims
on the Escrow Fund is the amount in the fund at the time,
and no one had any obligation to replenish it); Agrt.
§ 7.3(c)(iv) (term “Damages” in Article VII does not
include punitive damages). In turn, a party sued under
the Agreement did not surrender procedural protections,
including a right to a jury trial, for fraud claims where
recovery was not limited by the Escrow Fund cap and
punitive damages could be sought.
  The Delaware court held that the Agreement required
Matria to arbitrate fraud claims against Coral SR that
sought money from the Escrow Fund. See Matria Healthcare,
2007 WL 763303, at *9 (claims “against the Escrow Fund
established by the Merger Agreement must be brought
in accordance with the parties’ agreement to arbitrate”).
That’s a far cry from Matria’s current fraud claims against
individual officers for their personal assets. Matria did not
assert any claims against any directors, officers, or Stake-
holders individually in the Delaware action, a fact not
lost on that court. See id. at *8 (noting that Coral SR was
No. 08-1699                                               17

before it only “as the representative of the Stakeholders
with respect to Matria’s claims to the Escrow Fund and not,
at least as alleged in the Verified Complaint, as an
attorney-in-fact for individual Stakeholders against whom
claims might, at least theoretically, be asserted.”). The
Delaware court made no ruling about claims against
individual Stakeholders as such claims were not before it.
  Moreover, unlike here, Matria sought to recover from
the Escrow Fund in its Delaware suit. While the exten-
sive provisions in the Agreement regarding claims
against the Escrow Fund reflect the drafters’ desire to
have claims—including fraud claims—properly asserted
against the Fund resolved through arbitration, the Agree-
ment contains no such terms regarding individual
officers or their assets. Matria points out that its verified
complaint in the Delaware action also sought recovery
from a source other than the Escrow Fund. But the
“other source” was the Agent’s Escrow Fund, a fund
established to pay the fees for Coral SR and any legal
representation Coral SR hired to represent the Stake-
holders collectively. The Agent’s Escrow Fund, like the
Escrow Fund, consists only of funds collectively owned
by the Stakeholders and managed by Coral SR; the re-
maining balance, if any, in both funds will be distributed
pro rata to the Stakeholders after all claims against the
funds are resolved. Matria’s claims in this case are not
against Coral SR, and, as it recognizes, it cannot recover
from the Escrow Fund for any fraud committed only by
Duthie and Condron, who are but two of the many Stake-
holders who collectively “own” the Escrow Fund and
Agent’s Escrow Fund.
18                                               No. 08-1699

  Along those same lines, the Delaware court’s footnote
stating that “Whether Matria’s claims are limited to the
Escrow Fund is a question for the arbitrator,” id. at *8 n.37,
is not inconsistent with the district court’s conclusion
that the claims against Duthie and Condron are not
arbitrable. Matria had asserted a claim in the Delaware
suit against Coral SR for money in the Escrow Fund,
making it a claim that had to be arbitrated under the
Agreement. Given that the claim had to be arbitrated, the
Delaware court concluded it would let the arbitrator
decide the scope of the arbitration, including whether
the remedy for any fraud committed by Coral SR was
limited to the money in the Escrow Fund. That doesn’t
mean that Matria’s fraud claims at issue in this case
must be arbitrated, because there isn’t a predicate claim
against the Escrow Fund here.
  We finally note that Duthie and Condron are not col-
laterally estopped from asserting that Matria’s claims
against them are not arbitrable. The Delaware court made
no determination about claims against individuals like
Duthie and Condron, as such claims were not before it.
See Garcia v. Village of Mt. Prospect, 360 F.3d 630, 634 n.6
(7th Cir. 2004) (collateral estoppel requires that issue of
law or fact actually have been litigated and decided in
previous action). Judicial estoppel also does not apply, as
the Delaware court did not adopt a position that was
inconsistent with the one Duthie and Condron raised
here. See New Hampshire v. Maine, 532 U.S. 742, 750-51
(2001).
  Our examination of the Agreement as a whole leads us
to conclude that the Agreement does not mandate arbitra-
No. 08-1699                                            19

tion of the types of claims Matria asserted against Duthie
and Condron in the AAA arbitration. As a result, we
need not reach Duthie and Condron’s alternate argu-
ments in support of affirming the district court’s opinion
and entry of a preliminary injunction.


                  III. CONCLUSION
 The judgment of the district court is AFFIRMED.




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