Britto v. Prospect Chartercare Sjhsri, LLC , 909 F.3d 506 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1422
SYLVESTER J. BRITTO, JR.,
Plaintiff, Appellant,
v.
PROSPECT CHARTERCARE SJHSRI, LLC; PROSPECT CHARTERCARE, LLC;
SANDRA NASTARI; ADDY KANE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Richard A. Sinapi, with whom Joshua D. Xavier and Sinapi Law
Associates, LTD. were on brief, for appellant.
Jillian S. Folger-Hartwell, with whom Alexsa A. Marino and
Littler Mendelson, P.C. were on brief, for appellees.
November 30, 2018
THOMPSON, Circuit Judge. We are asked to referee yet
another arbitration controversy "in which the parties are
litigating whether or not they should be litigating."1 Rejecting
Sylvester Britto's claims about the (supposed) unenforceability of
the arbitration agreement before us, we affirm the district judge's
order sending his case to arbitration.
Setting the Stage
Arbitration Agreement
The key facts are undisputed and easily stated. Britto
is an African-American. In March 1987, when he was 26, he began
working as an at-will employee for St. Joseph Health Services of
Rhode Island ("St. Joseph," to save keystrokes). Decades later,
in June 2014, Prospect Chartercare SJHSRI, LLC and Prospect
Chartercare, LLC (collectively called "Prospect," following
Britto's convention) acquired St. Joseph.2 During the transition,
Prospect gave Britto an offer letter outlining the terms for his
continued at-will employment.3 Among its many provisions, the
1Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1026
(11th Cir. 2003).
2 The record reflects various spellings of Prospect
Chartercare SJHSRI, LLC and Prospect Chartercare, LLC. We use the
spelling employed in the companies' brief.
3
Prospect says that Prospect Chartercare SJHSRI, LLC employed
Britto, not Prospect Chartercare, LLC; Prospect Chartercare, LLC
is Prospect Chartercare SJHSRI, LLC's parent company, apparently.
But that detail does not matter for our purposes.
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letter noted that Prospect could "change the terms of [his]
employment, including compensation and benefits, at any time."
The letter also instructed him, as a condition of his continued
employment, to sign on a line in the letter below the words
"ACCEPTED AND AGREED TO" — which would "acknowledge [his]
acceptance of the above terms of employment" — and to sign two
"additional documents" included with the letter, one of which was
an arbitration agreement.
As relevant here, the arbitration agreement said that it
was subject to the Federal Arbitration Act (the "FAA" from now
on). And the agreement declared that "[t]o the fullest extent
allowed by law, any controversy, claim or dispute between [Britto]
and [Prospect] . . . relating to or arising out of [Britto's]
employment or the cessation of that employment will be submitted
to final and binding arbitration." Taking a belt-and-suspenders
approach, the agreement added that it "cover[ed] all employment-
related claims including, but not limited to, claims for . . .
violation of public policy, discrimination, harassment, or any
other employment-related claim under any state or federal statutes
or laws relating to an employee's relationship with his/her
employer." In its penultimate sentence, the arbitration agreement
said:
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BY AGREEING TO THIS BINDING MUTUAL ARBITRATION
PROVISION, BOTH YOU AND THE COMPANY GIVE UP ALL RIGHTS
TO A TRIAL BY JURY.
And the agreement's last sentence proclaimed:
BY SIGNING BELOW, I CONFIRM THAT I HAVE READ, UNDERSTAND
AND AGREE TO THIS ARBITRATION AGREEMENT.
Prospect's employee handbook also emphasized that it
"reserve[d] the right to revise, modify, delete or add to any and
all policies, procedures, work rules or benefits stated in this
[h]andbook or in any other document, except for the policy of at-
will employment set forth herein." The handbook also mentioned
arbitration, explaining that "[a]ll employees are required to sign
an agreement to arbitrate their employment disputes as a condition
of employment."
Complying with Prospect's instructions, Britto signed
the pertinent papers at the end of a five-minute meeting with his
supervisor.4 The supervisor never asked him to read the documents,
never discussed the significance of the arbitration agreement, and
never said he could have an attorney look the documents over
(Britto had no lawyer with him at the meeting, by the way). The
4 Britto's brief talks a bit about the page numbers on these
documents. "[T]he letter itself," he notes, is numbered "[p]ages
1 and 2." "[P]age 4 is the [a]rbitration [a]greement," he adds.
Page 3 is not in the record, however, though he suggests that
"'[p]age 3' may refer[]" to a code-of-conduct document also
mentioned in the letter — a document he apparently signed too.
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company's vice-president of human resources also signed the
arbitration agreement.
Lawsuit
A few months later, in January 2015, Prospect fired
Britto for (supposedly) violating the company's policies
concerning workplace violence and harassment. He was 54 at the
time. Prospect replaced him (allegedly) with a younger, non-
African-American worker.
Not willing to take this turn of events lying down,
Britto filed charges of age and race discrimination with the
appropriate state and federal civil-rights commissions. And after
getting right-to-sue letters from them, he filed this federal-
court lawsuit against the defendants named in our caption, alleging
that his discharge violated a mix of federal and state laws —
specifically, the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621, et seq.; Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e, et seq.; the Rhode Island Fair Employment Practices Act,
R.I. Gen Laws §§ 28-5-1, et seq.; and the Rhode Island Civil Rights
Act, R.I. Gen. Laws §§ 42-112-1, et seq.
Arbitration Fight
Insisting that the arbitration agreement was valid and
covered Britto's claims, the defendants invoked the FAA and moved
to dismiss the complaint and compel arbitration. A mini paper
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blizzard followed, principally on the issue of whether a valid
agreement to arbitrate existed — an issue controlled by Rhode
Island contract law, as all agree. See, e.g., Campbell v. Gen.
Dynamics Gov't Sys. Corp., 407 F.3d 546, 552 (1st Cir. 2005)
(explaining that "arbitration is a matter of contract, and for the
most part, general principles of state contract law control the
determination of whether a valid agreement to arbitrate exists")
(citations omitted) (quoting AT&T Techs, Inc. v. Comm'cns Workers,
475 U.S. 643, 648 (1986)).
In his papers opposing the motion, Britto pressed two
main points. First he argued that the defendants should be
collaterally estopped from using the arbitration agreement,
telling the judge that a different district judge in the same court
— in a case called Conduragis v. Prospect CharterCare, LLC, No. CV
17-272-JJM-PAS, 2017 WL 5997417 (D.R.I. Dec. 1, 2017) — held the
same arbitration agreement unenforceable for lack of
consideration. Conduragis, Britto noted, deemed Prospect's
promise to arbitrate illusory because the offer letter gave
Prospect the right to tweak employment terms (of which arbitration
was one) whenever it pleased. And, Britto added, Conduragis also
deemed Prospect's offer of continued at-will employment illusory
because Prospect could fire him at any time. Next Britto argued
that even if collateral estoppel did not apply, the arbitration
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agreement was still "unenforceable for lack of legal
consideration" for the same reasons given in Conduragis. Plus, he
wrote, the "procedural process" Prospect used to get him to sign
the arbitration agreement made the agreement "unconscionable" and
thus "unenforceable" as well.
The defendants responded that collateral estoppel was
inapplicable because his case and Conduragis involved dissimilar
issues and parties. The defendants also claimed that the
arbitration agreement was a "separate, standalone" agreement, and
so the offer letter's reservation of rights did not cover the
arbitration agreement — which, according to the defendants, pulled
the rug out from under Britto's illusory-promise theory premised
on the letter's reserving Prospect's right to revise employment
terms at will. But even if this were not so, the defendants
asserted that the arbitration agreement was still enforceable
because Britto's continued employment provided independent
consideration for the agreement. And the defendants said that
they saw no unconscionability problem, because nothing indicates
either that Britto "lacked a meaningful choice or the requisite
mental capacity" or that "the circumstances leading up to [his]
signing" the arbitration agreement were "oppressive."
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Judge's Decision
Ruling on the papers, the district judge held that a
valid and enforceable arbitration agreement existed between the
parties. In reaching this result, the judge first chose not to
follow Conduragis. Unlike the Conduragis judge, the judge here
concluded that the arbitration agreement was separate from the
offer letter, meaning the letter's "reservation of rights [did]
not cover the [a]greement" and thus Prospect's promise to arbitrate
was not illusory. Also unlike the Conduragis judge — who relied
on a Rhode Island superior court decision, D. Miguel & Son Co. v.
Barbosa, No. C.A. 84-3186, 1985 WL 663146 (R.I. Super. Ct. Mar.
11, 1985) ("D. Miguel," for simplicity) — our judge relied on a
Rhode Island Supreme Court case, Oken v. Nat'l Chain Co., 424 A.2d
234, 237 (R.I. 1981), in holding that Britto's agreement "to
continue to work in exchange for [d]efendants' promise to continue
to employ and compensate him for his services . . . [was]
consideration sufficient to render the [a]greement enforceable."
And having done so, the judge granted the defendant's motion to
compel arbitration and dismissed Britto's suit without prejudice.
From this adverse ruling Britto appeals.
Outlining the Standard of Review
We review the judge's legal decision to compel
arbitration with fresh eyes — i.e., "de novo," to put it in
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legalese. See, e.g., Soto-Fonalledas v. Ritz-Carlton San Juan
Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011). That means
we can affirm his ruling on any ground supported by the record,
even one he did not rely on. See id.; see also Lang v. Wal-Mart
Stores East, L.P., 813 F.3d 447, 454 (1st Cir. 2016) (explaining
what de novo review means).
Summarizing the Arguments
Britto attacks the district judge's ruling on multiple
grounds. Rehashing the litany of arguments that the judge heard
and rejected, he reminds us that the offer letter explicitly
reserved to Prospect the right to change employment terms "at any
time," a point "[r]einforced" in the employee handbook. And, he
continues, because submitting certain disputes to arbitration was
a required term of his employment, Prospect had the right to revamp
the arbitration agreement at its pleasure. So reading the letter
and the agreement together, he contends that this "escape hatch"
— requiring him "to arbitrate" but "reserv[ing]" to Prospect "the
right to rescind its promise to arbitrate" — made Prospect's
arbitration promise "illusory," meaning Prospect's promise did not
constitute sufficient "legal consideration for [his] promise to
submit his claims to arbitration."
Britto also thinks illusoriness infects Prospect's
promise in another way. Noting that the Rhode Island superior
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court in D. Miguel said that "[c]ontinued employment alone is
insufficient consideration," see 1985 WL 663146, at *2, he argues
as well that Prospect's promise to continue an at-will-employment
relationship did not suffice as legal consideration because (as
the name suggests) at-will employment is terminable by either party
at any time. Which, to quote from his brief, means even an "implied
promise of continued at-will employment" is "illusory."
Then Britto turns to Conduragis. There, Britto says, a
different district judge in the same court — dealing with the same
offer letter and arbitration agreement for a different Prospect
employee — held the agreement unenforceable for lack of
consideration because of the (allegedly) illusory aspects of
Prospect's promise. And he contends that our judge should have
given collateral-estoppel effect to Conduragis or at least reached
the same result as the Conduragis judge, after doing his own
illusory-consideration analysis — though if we "believe[]" Rhode
Island law is "unclear," he asks us to certify a question to the
Rhode Island Supreme Court regarding whether a promise of at-will
employment is "valid consideration."
Beyond these problems lies another, Britto asserts. In
his mind, the judge should have held the arbitration agreement
unenforceable as "procedurally unconscionable" given the
surrounding circumstances — which, in his words, involved "a short
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meeting, with no explanation, no time to review the documents,
telling him it was mandatory to sign the documents, and presenting
them as unimportant and routine."
Defending the judge's ruling, the defendants claim that
Britto is wrong in every way. As they see it — and echoing what
they said below — Prospect's promise to arbitrate is hardly
illusory. That is because, by their lights anyway, the arbitration
agreement was a stand-alone contract, since it required, for
example, a separate signature. So, they continue, the judge
rightly ruled that the offer letter's rights reservation did not
cover the arbitration agreement, which, per the defendants, made
the parties' mutual promises to arbitrate non-illusory. And, they
stress, even if the judge botched this part of his analysis, he
rightly deemed Prospect's continued-employment promise adequate
consideration to support the arbitration agreement — a ruling,
they stress, compelled by the Rhode Island Supreme Court's Oken
opinion. Given all this, they think the judge faultlessly found
Conduragis unpersuasive. And last, but not least, they also say
that there was nothing unconscionable about the way they behaved.5
5 For what it is worth, the parties implicitly agree that a
court should decide the unconscionability issue vis-à-vis this
arbitration agreement. And without saying whether either party
could have argued for something different, we simply note that by
not doing so, they waived any possible argument that they might
have had. See United States v. Caramadre, 807 F.3d 359, 377 (1st
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Weighing in on the Case
Consideration
Because arbitration is a creature of contract, see Rent-
A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010), parties
to an arbitration agreement are generally free to agree among
themselves on a host of things, like which claims to arbitrate and
which law to apply (to name just two). Keeping "such agreements
upon the same footing as other contracts" is the primary reason
Congress passed the FAA. See Allied-Bruce Terminix Cos. v. Dobson,
513 U.S. 265, 271 (1995) (quoting Volt Info. Scis., Inc. v. Bd. of
Trs. Of Leland Stanford Univ., 489 U.S. 468, 474 (1989)). And
thanks to the FAA, a party upset by another's unwillingness to
arbitrate can ask a federal court to compel arbitration consistent
with their agreement. See Volt Info. Scis., Inc., 489 U.S. at
474-75.
But to get anywhere, the asking party must show "that a
valid agreement to arbitrate exists, that [he] is entitled to
invoke the arbitration clause, that the other party is bound by
that clause, and that the claim asserted comes within the clause's
scope." Campbell, 407 F.3d at 552 (quoting InterGen N.V. v. Grina,
344 F.3d 134, 142 (1st Cir. 2003)). The dispute here is only over
Cir. 2015); Rodríguez v. Municipality of San Juan, 659 F.3d 168,
175 (1st Cir. 2011).
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the first element — whether a valid arbitration agreement exists.
Generally speaking, courts judge the existence (or not) of an
agreement to arbitrate by normal state-law contract principles.
Id. The parties, as we said, agree that this means Rhode Island
law applies here. And we accept this sensible agreement. See
Genereux v. Raytheon Co., 754 F.3d 51, 54 (1st Cir. 2014).
According to Rhode Island law, the essential elements of
a validly-formed bilateral contract are "competent parties,
subject matter, a legal consideration, mutuality of agreement, and
mutuality of obligation." DeAngelis v. DeAngelis, 923 A.2d 1274,
1279 (R.I. 2007) (quoting R.I. Five v. Med. Assocs. of Bristol
Cty., Inc., 668 A.2d 1250, 1253 (R.I. 1996)). Consideration may
take the form of a "legal right acquired by the promisor in
consideration of his promise, or forborne by the promisee in
consideration of such promise." Id. (quoting Darcey v. Darcey, 71
A. 595, 597 (R.I. 1909)). In deciding whether adequate
consideration existed to form a binding contract, Rhode Island
uses "the bargained-for exchange test," which holds that
"something is bargained for, and therefore constitutes
consideration, 'if it is sought by the promisor in exchange for
his promise and is given by the promisee in exchange for that
promise.'" Id. (quoting Filippi v. Filippi, 818 A.2d 608, 624
(R.I. 2003)). Of course, if a promise is "illusory" — if the
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promise makes performance optional with the promisor, for instance
— then "a contract never came into existence." Centerville
Builders, Inc. v. Wynne, 683 A.2d 1340, 1342 (R.I. 1996) (per
curiam); see also JPL Livery Servs., Inc. v. R.I. Dep't of Admin.,
88 A.3d 1134, 1143-44 (R.I. 2014); Vickers Antone v. Vickers, 610
A.2d 120, 123 (R.I. 1992).
With these principles in place, we turn to the task at
hand.
The parties spend a lot of time debating whether the
judge correctly rejected Britto's first multistep illusory-
consideration claim, a claim (to repeat) that goes like this:
(a) the offer letter's rights reservation — giving Prospect the
unfettered discretion to change employment terms — covers the
arbitration agreement, (b) making Prospect's arbitration promise
illusory and thus (c) rendering the agreement unenforceable from
the get-go for lack of consideration. Ultimately, though, we need
not join the fray, because — even assuming (arguendo in Britto's
favor) that one must read the offer letter and the arbitration
agreement together — the judge properly ruled that Prospect's
promise of continued employment provided sufficient independent
consideration to make the agreement enforceable. See generally
Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st
Cir. 2013) (noting that "[t]he simplest way to decide a case is
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often the best" (quoting Chambers v. Bowersox, 157 F.3d 560, 564
n.4 (8th Cir. 1998))).
In this regard, we take our cue from the Rhode Island
Supreme Court's opinion in Oken. There, an employee had an at-
will employment contract with his employer, with his compensation
tied to a commission-based system. See 424 A.2d at 237. At some
point, the employer sent the employee a missive modifying the
commission structure. Id. at 235. Later, after getting fired,
the employee claimed that no consideration supported the
modification. Id. at 237. And in a passage that directly supports
our judge's ruling — and thus kiboshes Britto's argument to us —
Rhode Island's highest court held that "[t]he continuation of [the
employee's] employment was sufficient consideration to support"
the modified employer-employee agreement. Id. (emphasis added).
Instead of addressing Oken — his briefs fail to cite,
let alone attempt to distinguish, Oken — Britto faults the district
judge for not following Conduragis, a decision by another district
judge in the same district that read Rhode Island law as holding
that continued employment was not adequate consideration. The big
problem for him is that Conduragis relied not on Oken but on D.
Miguel, a decision (we again note, as a matter of helpful
repetition) by the Rhode Island trial court. See Conduragis, 2017
WL 5997417, at *3. Yes, D. Miguel did suggest that "[c]ontinued
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employment alone is insufficient consideration" to support an
employer-employee agreement because "it does not require an
employer to change its existing position." See D. Miguel, 1985 WL
663146, at *2. But D. Miguel's suggestion is the exact opposite
of what the Rhode Island Supreme Court held years earlier in Oken.6
And when dealing with the law of a particular state, an on-point
opinion by that state's highest appellate court outweighs one by
that state's trial court (or for that matter one by another state's
court) — a truism for which no citation of authority is needed.
So we must follow Oken, not D. Miguel. Which is a key reason why,
in another opinion released today, we reversed the Conduragis
decision not to compel arbitration, see Conduragis v. Prospect
Chartercare, LLC, ___ F.3d ___, ___ (1st Cir. 2018) [No. 18-1009,
slip op. at 2-3] — an action that eliminates any need to consider
the collateral-estoppel effect (if any) of Conduragis.7
As a fallback, Britto theorizes that a contract lacks
sufficient consideration — and is therefore unenforceable — if one
of a party's many promises is illusory, even if another promise is
not. Applying his theory here, he says that because the offer
letter gave Prospect the exclusive right to alter the arbitration
6
For some unknown reason, the trial court in D. Miguel made
no mention of the Supreme Court's Oken opinion.
7
Britto's opening brief concedes that if "Conduragis is
reversed," the collateral-estoppel doctrine does not apply here.
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agreement, "Prospect's promise to arbitrate was illusory," making
the agreement unenforceable — regardless of whether Prospect's
offer of continued at-will employment was non-illusory and thus
satisfactory consideration. But he cites no Rhode Island authority
so holding (nor does he provide any persuasive explanation for why
we should implement his vision of what he thinks the law should
be). He does cite a couple of Rhode Island cases, but only for
the uncontested proposition that an illusory promise foists no
performance obligations on the promisor and gives no consideration
to the promisee. See JPL Livery Servs., 88 A.3d at 1143-44;
Centerville Builders, Inc., 683 A.2d at 1341. Ultimately, by
raising his fallback argument "in skeletal form, without citation
to any pertinent authority," he waived it. See Muñiz v. Rovira,
373 F.3d 1, 8 (1st Cir. 2004); accord Medina–Rivera v. MVM, Inc.,
713 F.3d 132, 140-41 (1st Cir. 2013).
As a last-ditch effort on the consideration issue,
Britto implies that maybe we should certify to the Rhode Island
Supreme Court the question of "whether continued at-will
employment is valid consideration." Oken obviates any need to
certify, however. Also, Britto argues in his reply brief that
because of Prospect's illusory arbitration promise, the
arbitration agreement lacked not only consideration but also
mutuality of agreement. We normally give no attention to arguments
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débuted in a reply brief. See, e.g., United States v. Torres, 162
F.3d 6, 11 (1st Cir. 1998). And he gives us no reason to do
otherwise here.
Having found his consideration-based claims
unpersuasive, we next explain why Birtto's unconscionability-
centered complaints cannot save the day for him.
Unconscionability
We start with a preliminary point. In the jurisdictional
section of his brief, Britto says that the judge "did not address"
his "procedural unconscionability argument." He says something
similar in the brief's statement-of-the-case section. But he does
not brief any argument on this subject in the brief's argument
section. So he waived any argument that he might have had. See,
e.g., United States v. Parker, 872 F.3d 1, 10 n.6 (1st Cir. 2017);
United States v. Trinidad–Acosta, 773 F.3d 298, 310 n.5 (1st Cir.
2014).
As for what Britto does argue — that the arbitration
agreement is procedurally unconscionable — we note that under the
FAA, courts analyze unconscionability "issue[s] under normal state
law unconscionability standards." See Skirchak v. Dynamics
Research Corp., 508 F.3d 49, 59 (1st Cir. 2007). And Rhode Island
law says courts will typically "refuse to enforce a contract" on
unconscionability grounds
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only when the inequality of the bargain was so manifest
as to shock the judgment of a person of good sense and
when the terms were so unreasonable that "no man in his
senses and not under delusion, would make on the one
hand, and as no honest and fair man would accept on the
other."
Grady v. Grady, 504 A.2d 444, 446-47 (R.I. 1986) (quoting Hume v.
United States, 132 U.S. 406, 411 (1889)).
We have read Grady as setting up a two-part test,
requiring that the complaining party "prove that (1) there is an
absence of meaningful choice on the part of one of the parties;
and (2) the challenged contract terms are unreasonably favorable
to the other party." E.H. Ashley & Co. v. Wells Fargo Alarm
Servs., 907 F.2d 1274, 1278 (1st Cir. 1990) (emphasis added and
internal quotation marks omitted). As Britto notes, some courts
assign the labels of procedural unconscionability to requirement
"(1)" and substantive unconscionability to requirement "(2)." He,
for example, cites Baker v. Pawtucket Skilled Nursing & Rehab.,
LLC, No. PC 15-0181, 2016 WL 4410002 (R.I. Super. Ct. Aug. 16,
2016), which uses these labels. Anyway, and of particular
pertinence here, E.H. Ashley & Co. interpreted Rhode Island law as
holding that a contract is unenforceable if it is both procedurally
and substantively unconscionable. We say that because E.H. Ashley
& Co. ruled that regardless of whether the complaining party there
could prove procedural unconscionability, its unconscionability
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claim failed because it did not prove substantive
unconscionability. See 907 F.2d at 1278.
And that spells trouble for Britto. After all, he pins
his unconscionability hopes on persuading us that the "procedure"
Prospect employed — e.g., telling him to "immediately" sign key
documents presented at the end of a five-minute meeting, without
a lawyer present, and without explaining the papers'
"significance" or seeing if he understood their terms — made the
arbitration agreement procedurally unconscionable.8 But
devastating to his unconscionability claim, he makes no attempt to
carry his burden of showing that the agreement is substantively
unconscionable — i.e., he expends no effort to prove that the
agreement's terms unreasonably favor Prospect.9 So, given E.H.
Ashley & Co., his unconscionability claim fails.
8 Pointing to two paragraphs in his affidavit, Britto's brief
says (emphasis ours) that he "w[as] prohibited from taking the
[a]rbitration [a]greement home to review it and/or to obtain the
advice of an attorney." But the first affidavit paragraph provides
that "[t]here were no attorneys present during the [m]eeting to
explain the pages within the [p]acket and/or the consequences of
signing said pages." And the second affidavit paragraph says that
"[a]t no point . . . during the [m]eeting did . . . any[one] . .
. state that I . . . w[as] permitted to take the [a]rbitration
[a]greement home to review it and/or to obtain the advice of an
attorney." Fairly read, then, nothing in either paragraph supports
the "prohibited" assertion in his brief.
9 Britto relies heavily on Baker in asking that we find the
contract unenforceable as unconscionable. The Baker trial justice
cited E.H. Ashley & Co. — requiring evidence of both procedural
and substantive unconscionability to defeat a contract — but then
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Wrapping Up
Our work over, we affirm the judge's order dismissing
the suit and compelling arbitration. Costs to appellees. See
Fed. R. App. P. 39(a)(2).
refused to enforce the contract as unconscionable on the ground of
procedural unconscionability alone. See 2016 WL 4410002, at *9-
10 (finding procedural unconscionability when a person agreed to
sign, without a clear explanation, a complicated legal document,
while she was "heavily medicated" and mentally "vulnerable"). In
so holding, the trial justice appears to have misapplied the E.H.
Ashley & Co. standard. But absent a course correction from Rhode
Island's highest court, we will continue to apply our previous
interpretation of state law. See Esquire, Inc. v. Esquire Slipper
Mfg. Co., 243 F.2d 540, 544 (1st Cir. 1957).
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