Britto v. Prospect Chartercare Sjhsri, LLC

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
- 11 -
 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).
- 12 -
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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