United States Court of Appeals 

For the First Circuit 

No. 19-1865 

KARA BILLER, as attorney in fact for Joan M. McKenna; 

JOAN M. MCKENNA 

Plaintiffs, Appellees, 

v. 

S-H OPCO GREENWICH BAY MANOR, LLC, a/k/a Brookdale Greenwich 

Bay; BROOKDALE SENIOR LIVING COMMUNITIES, INC., a/k/a Brookdale 

Senior Living, Inc.; BKD HB ACQUISITION SUB, INC.; BKD TWENTYONE MANAGEMENT COMPANY, INC.; S-H TWENTY-ONE OPCO, INC. 

Defendants, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. John J. McConnell, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge 

Thompson and Barron, Circuit Judges. 

 Joseph H. Desmond, with whom Morrison Mahoney LLP was on 

brief, for appellants. 

Anthony R. Leone, II, with whom Leone Law LLC was on brief, 

for appellees. 

June 5, 2020 
- 2 - 

THOMPSON, Circuit Judge. Joan M. McKenna and her 

daughter, Kara Biller, brought this lawsuit against McKenna's 

former assisted living facility, Brookdale Greenwich Bay (we'll 

call it "Brookdale"),1 because (they allege) Brookdale agreed to 

take responsibility for administering McKenna's thyroid medication 

(methimazole) but dropped the ball. Without her medication, 

McKenna's thyroid levels spiraled "out of control," she suffered 

health complications, and she had to be hospitalized. In answer, 

Brookdale sought to have the case sent to arbitration, fingering 

an arbitration clause in McKenna's residency agreement. But at 

Biller and McKenna's urging, the district court denied arbitration 

and kept the case in court. In its view, the arbitration agreement 

had expired in 2017, so there was nothing left to enforce. 

On appeal, Brookdale argues (as it did below) that the 

Federal Arbitration Act (FAA) required the district court to send 

this case to arbitration. According to Brookdale, it was the 

arbitrator's job to decide when the residency agreement 

terminated; and even if the rest of the contract did expire, that 

doesn't mean the arbitration clause lapsed along with it. On this 

record, we have to agree; given our precedent, we could hardly do 

otherwise. As such, we conclude that the arbitration agreement 

 1 Biller and McKenna also sued several related parent, 

holding, and management companies, including Brookdale Senior 

Living Communities, Inc., BKD HB Acquisition Sub, Inc., BKD TwentyOne Management Company, Inc., and S-H Twenty-One Opco, Inc. 
- 3 - 

remains in effect and binds McKenna and Biller to arbitrate their 

claims. 

I. Background2

McKenna moved into Brookdale's Greenwich Bay facility in 

March 2016. When she got there, Brookdale gave her a contract 

(the parties call it the "residency agreement") that set out a 

payment schedule for the services she'd get during her stay -- 

though Brookdale (and only Brookdale) reserved the "right to modify 

fees, rates and charges, [and] amend services provided" without 

another writing signed by both parties. The contract said that it 

would continue indefinitely, but that either party could terminate 

it "immediately upon written notice in the event of [McKenna's] 

death or if [she] must be relocated due to [her] health."3 

 Among other provisions, the residency agreement also 

contained an arbitration clause, which read: 

Any and all claims or controversies arising 

out of, or in any way relating to, this 

Agreement or any of your stays at the 

2 This appeal arises from an order on a motion to compel 

arbitration in connection with a motion to dismiss, so we draw the 

relevant facts from "the complaint and the parties' submissions to 

the district court" on the motion. Bekele v. Lyft, Inc., 918 F.3d 

181, 184 (1st Cir. 2019). 

3 There were also other ways to terminate the agreement: 

McKenna could end it for any reason by 30 days' written notice, 

and the company could do so for various stated reasons (like if 

McKenna required care Brookdale couldn't provide, or if her or her 

visitors' behavior "interfere[d] with the orderly operation of the 

Community." Neither of those other termination provisions are at 

issue here, however.
- 4 - 

Community, excluding any action for 

involuntary transfer or discharge or eviction, 

and including disputes regarding 

interpretation, scope, enforceability, 

unconscionability, waiver, preemption and/or 

violability of this Agreement, whether arising 

out of State or Federal law, whether existing 

or arising in the future, whether for 

statutory, compensatory or punitive damages 

and whether sounding in breach of contract, 

tort or breach of statutory duties, 

irrespective of the basis for the duty or the 

legal theories upon which the claim is 

asserted, shall be submitted to binding 

arbitration, as provided below, and shall not 

be filed in a court of law. The parties to 

this Agreement further understand that a judge 

and/or jury will not decide their case. 

The clause added that any arbitration would be held before an 

unbiased arbitrator chosen by the parties, and the parties would 

divide the costs equally. 

Presented with this residency agreement, McKenna's 

daughter and attorney-in-fact Kara Biller signed on her mother's 

behalf, and McKenna began her stay. 

 Things didn't go as planned. When McKenna arrived at 

Brookdale in March 2016, she was under a doctor's order to take 

methimazole to treat a thyroid condition. At the time, her family 

members handled her medication; the residency agreement didn't 

mention it. Some months later, though (in July 2016), Brookdale 

agreed to take on the task of administering McKenna's meds, 

including methimazole. But they didn't follow through. According 

to the plaintiffs, Brookdale didn't give McKenna methimazole for 
- 5 - 

over a year -- from July 2016 until August 2017. As a result, her 

thyroid stopped functioning properly and she suffered health 

complications. 

In July 2017, McKenna was transferred from Brookdale's 

assisted living unit to the facility's memory care unit, a locked 

ward for patients with dementia. When they moved her, Brookdale 

gave McKenna and Biller an updated residency agreement for Biller 

to sign.4 A month later, McKenna was admitted to a hospital, where 

she and her family first learned that she had not been taking 

methimazole. Shortly after she left the hospital, McKenna moved 

out of Brookdale for good.

Two years later, she and her daughter sued Brookdale in 

Rhode Island state court. Biller and McKenna brought state-law 

claims for negligence; negligent hiring, training, and 

supervision; corporate negligence; respondeat superior; and breach 

4 At the hearing on the motion to compel arbitration, the 

record wasn't clear on whether McKenna or Biller ever signed the 

proposed 2017 agreement; the only evidence was a draft agreement 

signed by Brookdale, with a blank space for McKenna or her 

representative. After the district court denied the motion to 

compel arbitration, however, Brookdale discovered a fully executed 

copy of the July 2017 agreement, which contained a similar 

arbitration provision and both parties' signatures. Brookdale 

quickly moved the district court to reconsider its denial of the 

motion to compel under Rule 59(e) of the Federal Rules of Civil 

Procedure, but the district court denied the motion. Brookdale 

appeals that ruling as well. But since we conclude that the 

district court erred in denying the motion to compel arbitration 

based on the evidence presented at the initial hearing, we need 

not decide whether it should have granted Brookdale's later request 

to reconsider that denial. 
- 6 - 

of contract. These claims were all based on Brookdale's alleged 

failure to administer methimazole from July 2016 to August 2017. 

Brookdale timely removed the suit to federal district 

court based on diversity jurisdiction and moved to compel 

arbitration. Brookdale argued that the state-law tort claims and 

state-law contract claims were unequivocally within the scope of 

the arbitration agreement.5 So as Brookdale saw it, the FAA 

obligated the district court to refer the claims to an arbitrator. 

In opposition, Biller and McKenna did not dispute that 

the arbitration agreement purported to cover their state-law tort 

and contract claims. Rather, they argued that the arbitration 

agreement was not "in effect between the parties" for three 

relevant reasons. First, they argued that the July 2017 

"relocation to the new unit due to Ms. McKenna's health 

terminate[d] the March 2016 residency agreement" that contained 

the arbitration clause. Second, they argued that the parties 

formed a new, implied-in-fact "common-law" contract in July 2017 

that "supersede[d] the earlier agreements between the parties 

and . . . d[id] not contain a signed forced arbitration 

provision." Third, they argued that "the forced arbitration 

provision that the defendants seek to enforce is unconscionable." 

5 Preemptively, Brookdale also argued that to the extent that 

the plaintiffs disputed the scope or enforceability of the 

arbitration agreement itself, the parties had clearly delegated 

such disputes to the arbitrator. 
- 7 - 

In reply, Brookdale contended that Biller and McKenna 

had simply raised further disputes as to the scope or 

enforceability of the arbitration agreement itself. Because the 

parties had agreed to have an arbitrator decide those threshold 

disputes, Brookdale argued, the FAA obligated the district court 

to refer them to an arbitrator.

In the alternative, Brookdale argued that even if the 

district court were to adjudicate these disputes, it should 

conclude that the arbitration clause in the March 2016 residency 

agreement remained in effect. In Brookdale's view, the termination 

clause in the residency agreement had not been triggered, because 

McKenna merely "receiv[ed] different services over time at the 

same facility" throughout her stay; and there was no superseding 

agreement, because the March 2016 residency agreement contemplated 

additional services and fees. Therefore, Brookdale argued, the 

2016 agreement was still in effect and compelled arbitration. 

After a hearing, the district court denied the motion to 

compel arbitration from the bench. It concluded that "there is no 

signed agreement containing an arbitration clause which would 

otherwise be enforceable by this Court," because "[t]he March '16 

agreement terminated when Ms. McKenna was moved to a memory unit 

from her assisted living unit where she had been before." The 

district court therefore refused to send "any question to an 

arbiter." Brookdale timely appealed. See 9 U.S.C. § 16(a)(1)(B). 
- 8 - 

II. The FAA 

The Federal Arbitration Act provides: "A written 

provision in . . . a contract . . . to settle by arbitration a 

controversy . . . shall be valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the 

revocation of any contract." 9 U.S.C. § 2. Designed to counter 

"widespread judicial hostility to arbitration," Am. Express Co. v. 

Italian Colors Rest., 570 U.S. 228, 232 (2013), the Act makes 

arbitration "a matter of contract, and courts must enforce 

arbitration contracts according to their terms," Henry Schein, 

Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019). 

"We review both the interpretation of arbitration agreements and 

orders compelling arbitration de novo." S. Bay Bos. Mgmt. v. Unite 

Here, Local 26, 587 F.3d 35, 42 (1st Cir. 2009). 

"A party seeking to compel arbitration under the FAA 

must demonstrate 'that a valid agreement to arbitrate exists, that 

the movant 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.'" Dialysis Access Ctr., LLC v. 

RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011) (quoting 

InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003)). If 

the movant makes that showing, the court has to send the dispute 

to arbitration "unless the party resisting arbitration 

specifically challenges the enforceability of the arbitration 
- 9 - 

clause itself . . . or claims that the agreement to arbitrate was 

'never concluded.'" Granite Rock Co. v. Int'l Bhd. of Teamsters, 

561 U.S. 287, 301 (2010) (quoting Buckeye Check Cashing, Inc. v. 

Cardegna, 546 U.S. 440, 444 n.1 (2006) (cleaned up)). Those 

issues, which implicate "[w]hether or not a dispute is arbitrable," 

are typically for the court to decide. Dialysis, 638 F.3d at 375. 

III. Our Take 

Here, the parties dispute when the contract terminated. 

Biller and McKenna assume that if (as they urge) it expired in 

July 2017, the arbitration clause no longer binds the parties, and 

the district court was right to keep this case for itself. As 

below, Brookdale disagrees. In Brookdale's view, it was the 

arbitrator's job -- not the district court's -- to decide when the 

contract terminated. In any event, says Brookdale, 

Biller/McKenna's argument rests on a false premise: that the 

arbitration agreement expired when the residency agreement did. 

In fact, the parties' obligation to arbitrate claims about the 

residency agreement and McKenna's stay at Brookdale survives to 

this day, even if the rest of the residency agreement expired. We 

agree with Brookdale. 

To explain why, we start with a gateway issue -- whether 

we (rather than the arbitrator) should interpret the arbitration 

clause in the first place to decide which disputes it covers 

(spoiler alert: we must). Once that's out of the way, we'll take 
- 10 - 

Biller/McKenna's "termination" argument on its own terms. In doing 

so, we conclude that the plain text of the arbitration clause makes 

it the arbitrator's job (not the district court's) to interpret 

the residency agreement and decide when it terminated. In any 

event, however, even if the residency agreement expired in 2017, 

the arbitration agreement would still compel the parties to 

arbitrate their disputes "arising out of" or "relating to" the 

residency agreement or "any of [McKenna's] stays" at Brookdale's 

facility, including Biller and McKenna's claims in this case. We 

save Biller and McKenna's last two contentions -- that the parties 

overwrote the 2016 arbitration provision with a new agreement, and 

that the provision was unconscionable -- for last. 

A. Gateway Issue: Who Picks the Decider? 

First things first. As a threshold matter, Brookdale 

argues that the parties agreed to have an arbitrator interpret the 

arbitration clause itself and (therefore) to decide all disputes 

about arbitrability. If Brookdale is right, then the arbitrator 

must resolve even the gateway question of who (a court or the 

arbitrator) should decide the parties' core disputes, including 

their fight over contract termination. And as part of that 

threshold question, the arbitrator would have to decide (as we do 

later) whether the arbitration clause is enforceable at all. 

But we see no such agreement. It is true that "parties 

may agree to have an arbitrator decide not only the merits of a 
- 11 - 

particular dispute but also '"gateway" questions of 

"arbitrability," such as whether the parties have agreed to 

arbitrate or whether their agreement covers a particular 

controversy.'" Schein, 139 S. Ct. at 529 (quoting Rent-A-Ctr., 

W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010)). They must do so, 

however, by "clear and unmistakable" evidence. Id. at 530 (quoting 

First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). 

This standard is "demanding." Patton v. Johnson, 915 F.3d 827, 

835 (1st Cir. 2019). And here's the kicker: it "requires more 

than simply saying that the arbitrator determines the meaning of 

any disputed contractual terms." Peabody Holding Co., LLC v. 

United Mine Workers of Am., Int'l Union, 665 F.3d 96, 102 (4th 

Cir. 2012) (reaffirming that an arbitration clause "committ[ing] 

all interpretive disputes 'relating to' or 'arising out of' the 

agreement" does not pass the "clear and unmistakable" test) 

(quoting Carson v. Giant Food, Inc., 175 F.3d 325, 329, 330 (4th 

Cir. 1999)); accord Commc'n Workers of Am. v. Avaya, Inc., 693 

F.3d 1295, 1303 (10th Cir. 2012). So, for example, in AT & T 

Technologies, Inc. v. Communications Workers of America, the Court 

held that even though the arbitration clause committed "any 

differences arising with respect to the interpretation of this 

contract or the performance of any obligation hereunder" to 

arbitration, it was still "for the court, not the arbitrator, to 
- 12 - 

decide in the first instance whether the dispute was to be resolved 

through arbitration." 475 U.S. 643, 650–51 (1986). 

Likewise, Brookdale's arbitration clause does not supply 

clear and unmistakable evidence that the parties agreed to have an 

arbitrator decide whether to arbitrate their disputes, because the 

clause could reasonably be interpreted to cover only controversies 

over the underlying residency agreement and the circumstances of 

McKenna's stay at Brookdale but not disputes over the arbitration 

provision itself. To be sure, the clause does cover "controversies 

. . . relating to[] this Agreement," and "disputes regarding 

interpretation, scope, enforceability, unconscionability 

. . . and/or violability of this Agreement." But the phrase "this 

Agreement" could reasonably (and likely does) refer only to the 

underlying residency agreement; indeed, that is how the parties 

use the phrase throughout the rest of the contract.6 We have 

6 See Appellant's Add. at 26 ("This Agreement ('Agreement') 

dated March 18, 2016 is made by and between S-H OpCo Greenwich Bay 

Manor, LLC . . . and Joan McKenna."); id. ("We will provide you 

with the following Basic Services, which are included in the Basic 

Service Rate, subject to the terms of this Agreement"); id. at 27 

("The available Select Services and Therapeutic Services as well 

as the associated prices are found on Exhibit X and Exhibit Y to 

this Agreement"); id. at 28 ("For your safety and comfort, our 

associates must be permitted to enter your Suite to provide 

services under the terms of this Agreement."); id. at 30 ("You 

agree that we may use and disclose Resident Data . . . to provide 

to you services covered by this Agreement."); id. ("Unless 

prohibited by law, you agree we may offset such refunds by any 

amount due under the terms of this Agreement."); id. at 31 ("This 

Agreement begins on the date set forth above and continues until 

terminated as provided below."); id. 32 ("Either party may 
- 13 - 

demanded more specific language before concluding that the parties 

delegated all questions of arbitrability to the arbitrator. See 

Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 10–12 (1st Cir. 2009) 

(finding the arbitration agreement delegated those threshold 

questions to the arbitrator because it incorporated rules 

authorizing the arbitrator to determine the "existence, scope or 

validity of the arbitration agreement"; but noting that "where the 

parties merely agree that the validity of the contract should be 

subject to arbitration, this does not commit to the arbitrator a 

dispute about whether the arbitration clause is valid"). A 

"typical, broad arbitration clause" like this one doesn't pass the 

test. Carson, 175 F.3d at 330 (quoting Va. Carolina Tools, Inc. 

v. Int'l Tool Supply, Inc., 984 F.2d 113, 117 (4th Cir. 1993)).7 

terminate this Agreement immediately upon written notice in the 

event of your death or if you must be relocated due to your 

health."); id. at 36 ("You understand and agree to assume the risks 

inherent in this Agreement."); id. ("This Agreement is not 

assignable without our prior written consent."). 

7 We realize that the Second Circuit has held that "[b]road 

language expressing an intention to arbitrate all aspects of all 

disputes supports the inference of an intention to arbitrate 

arbitrability[.]" Metro. Life Ins. Co. v. Bucsek, 919 F.3d 184, 

191 (2d Cir. 2019). But it is far from obvious that a typical 

commitment to arbitrate matters "arising out of or relating to" 

the parties' underlying contractual relationship evinces a "clear 

and unmistakable" intent to arbitrate all aspects of all disputes 

between the parties, including the "arcane" question of "the scope 

of [the arbitrator's] own powers." First Options, 514 U.S. at 

945. Holding that boilerplate to be sufficient would threaten to 

flip the presumption in AT & T Technologies and First Options on 

its head. In any event, Brookdale does not urge us to apply the 

Second Circuit's test. In fact, it does not identify what language 
- 14 - 

B. Who Decides When the Contract Terminated? 

Since the parties didn't delegate the threshold "who 

decides" question to the arbitrator, it's up to us to interpret 

the arbitration clause and determine whether it gives the 

arbitrator the duty to decide when the residency agreement ended. 

We conclude that it does. The arbitration clause gives him or her 

the power to decide all "disputes regarding interpretation . . . 

of th[e] Agreement" (meaning the residency agreement). And 

unfortunately for Biller/McKenna, that describes their dispute 

over the contract's "termination" to a T. On the one hand, the 

duo argue that the contract expired (and the arbitration clause 

with it) by its own terms: the clause providing that either party 

could terminate the residency agreement if McKenna had to "be 

relocated due to [her] health." In Biller/McKenna's view, the 

parties triggered this clause when they transferred McKenna from 

the assisted living unit to the memory care unit. Not so, says 

Brookdale. The plaintiffs keep using that word ("relocate"), but 

in the arbitration clause clearly tasks arbitrator to decide 

questions of arbitrability. Instead, it argues flatly that Schein 

held that "all disputes over the applicability and enforcement of 

arbitration agreements must be delegated to an arbitrator." 

Appellant's Br. at 13–14. But of course, Schein did not overrule 

(in fact, it reaffirmed) the well-established rule that courts 

must decide arbitrability unless the parties "clear[ly] and 

unmistakabl[y]" delegated that threshold question to the 

arbitrator. 139 S. Ct. at 530–31 (quoting First Options, 514 U.S. 

at 944, and "express[ing] no view about whether the contract at 

issue . . . in fact delegated the arbitrability question to the 

arbitrator"). 
- 15 - 

it does not mean what they think it means. Rather (Brookdale 

elaborates), a resident is not "relocated due to [her] health" if 

she does not "leave the facility," and McKenna just "receiv[ed] 

different services over time at the same facility" throughout her 

stay. To figure out who's right, someone needs to decide what the 

word "relocate" means in the residency agreement. As the 

arbitration clause makes clear, interpretive disputes like that 

must go to the arbitrator. 

In fact, our precedent compels that conclusion. Most 

recently, in Unite Here Local 217 v. Sage Hospitality Resources, 

an employer made a similar argument to the one Biller and McKenna 

advance here: that a labor agreement had terminated before the 

dispute arose and the union invoked arbitration. 642 F.3d 255, 

258–59 (1st Cir. 2011). The parties there had agreed to arbitrate 

"any dispute over the interpretation or application" of the labor 

agreement, which had a duration clause that said the agreement 

would be "in full force and effect . . . until thirty months from 

the full public opening" of a hotel. Id. at 257. Just as 

McKenna/Biller/Brookdale dispute the meaning of the word 

"relocate," the parties in Unite Here disputed the date of the 

hotel's "full public opening." Id. at 257–58. We held that their 

"dispute over the meaning of language in the duration clause" of 

the underlying agreement was "a classic issue of contract 
- 16 - 

construction and one the parties clearly contemplated would be 

resolved by an arbitrator." Id. at 262. So it is here. 

 In defense of the order below, Biller and McKenna argue 

that it was district court's job to decide when the contract 

terminated. That must be so, they say, because before a court can 

send any dispute to the arbitrator, the court has to make sure 

"there exists a written agreement to arbitrate" that dispute. 

Cullinane v. Uber Techs., Inc., 893 F.3d 53, 60 (1st Cir. 2018) 

(quoting Combined Energies v. CCI, Inc., 514 F.3d 168, 171 (1st 

Cir. 2008)). The FAA only "place[s] arbitration agreements upon 

the same footing as other contracts"; it "does not require parties 

to arbitrate when they have not agreed to do so." Id. (internal 

quotation marks omitted). So, Biller/McKenna explain (correctly), 

the question of whether the arbitration clause terminated and no 

longer binds the parties is an issue of arbitrability which (when 

properly presented and not clearly and distinctly delegated to the 

arbitrator), the court must decide. See Granite Rock, 561 U.S. at 

299–300; Dialysis, 638 F.3d at 375. So far so good. But here's 

where they go off track. According to Biller and McKenna, if the 

residency agreement terminated, then the arbitration clause died 

with it; there no longer "exists a written agreement to arbitrate," 

Cullinane, 893 F.3d at 60; and the court can't compel arbitration. 

Therefore (conclude Biller and McKenna), before the court could 

send any dispute between the parties to the arbitrator, it had to 
- 17 - 

decide whether the contract (and therefore the arbitration clause) 

remains in effect. But that's not correct. 

In fact, we faced and rejected the same argument in Unite 

Here. See 642 F.3d at 258–60. There, the hotel (like Biller and 

McKenna) argued that "whether [the underlying] Agreement was in 

effect at the time it was invoked by the Union" was a question of 

"arbitrability" for the court to decide. Id. But there, as here 

(with the exception of Biller/McKenna's unconscionability 

challenge, which we'll discuss later), "the parties d[id] not 

contest that the [arbitration] [a]greement was valid, that they 

were subject to its requirements, and that the substantive scope 

of the arbitration clause" -- covering disputes over how to 

interpret the underlying contract -- was "clear." Id. at 262. We 

explained that in such cases, the question of when the underlying 

contract terminated "concerns neither the validity of the 

arbitration clause nor its applicability to the underlying dispute 

between the parties"; and as such, it is "not a substantive 

question of arbitrability but a 'matter of contract interpretation 

. . . for the arbitrator, not the courts, to decide.'" Id. 

(quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 453 (2003) 

(plurality opinion)); see also Int'l Bhd. of Elec. Workers, Local 

1228, AFL-CIO v. Freedom WLNE-TV, Inc., 760 F.2d 8, 10 (1st Cir. 

1985) ("Where, however, the determination of whether a contract is 

still in effect depends solely upon construction of the collective 
- 18 - 

bargaining agreement, the issue of contract termination may 

appropriately be decided by the arbitrator."). 

But how can that be? -- demand Biller and McKenna. If 

the contract terminated, as they say it did, then the arbitration 

clause must die with it, and the arbitrator would lack the power 

to decide the termination dispute in the first place, wouldn't he? 

But that's where they go wrong; in fact, even if the rest of the 

residency contract terminated, that would not mean that 

arbitration agreement lapsed with it. To see why, we review two 

basic principles of arbitration law that help explain the outcomes 

in Unite Here, Freedom WLNE-TV, and (ultimately) this case. 

C. Post-expiration Arbitration 

First off, unless the parties provided otherwise, an 

arbitration provision "is severable from the remainder of the 

contract." Buckeye, 546 U.S. at 445 (citing Prima Paint Corp. v. 

Flood & Conklin Mfg. Co., 388 U.S. 395, 402 (1967) (holding that 

"except where the parties otherwise intend," "arbitration clauses 

as a matter of federal law are 'separable' from the contracts in 

which they are embedded")). To avoid arbitration, then, a party 

must ordinarily make a targeted, "independent challenge" to the 

arbitration clause itself. Large v. Conseco Fin. Servicing Corp., 

292 F.3d 49, 53 (1st Cir. 2002) (quoting Unionmutual Stock Life 

Ins. Co. v. Beneficial Life Ins. Co., 774 F.2d 524, 529 (1st Cir. 

1985)). When the arbitration-resister "specifically challenges 
- 19 - 

the enforceability of the arbitration clause itself" (again, 

unless another provision clearly delegated the issue to the 

arbitrator) the court must decide that challenge before it can 

compel arbitration. Granite Rock, 561 U.S. at 301. So, a 

properly-developed argument that the arbitration clause lapsed -- 

for example, because the arbitration agreement provides that it 

will expire on some condition, or because the parties later agreed 

to submit their disputes to a court -- would be the court's to 

decide. On the other hand, when someone argues (as Biller/McKenna 

do in their termination-clause-based challenge) that a broad 

arbitration clause is invalid or unenforceable only "on a ground 

that directly affects the entire agreement" that challenge is 

ordinarily for the arbitrator to decide. Rent-A-Ctr., 561 U.S. at 

70–71 (quoting Buckeye, 546 U.S. at 444) ("[A] party's challenge 

to another provision of the contract, or to the contract as a 

whole, does not prevent a court from enforcing a specific agreement 

to arbitrate"; "the basis of challenge [must] be directed 

specifically to the agreement to arbitrate before the court will 

intervene.").8 

 Biller and McKenna acknowledge that this severability 

principle governs their unconscionability challenge. But in this 

8 As we noted above, there is an important exception: when 

the challenger argues that no "agreement between the parties 'was 

ever concluded,'" the court must decide that challenge. Rent-ACtr., 561 U.S. at 70 n.2 (quoting Buckeye, 546 U.S. at 444 n.1). 
- 20 - 

circuit, "[t]he basis of the underlying challenge to the contract 

does not alter the severability principle." Unionmutual, 774 F.2d 

at 529. And we've applied it to compel arbitration in other cases 

where one party asserted the underlying contract terminated. In 

Large and Unionmutual, the parties challenging arbitration claimed 

that they had rescinded the underlying contract, and the 

arbitration agreement with it, based on frustration of purpose, 

Unionmutual, 774 F.2d at 529, and their rights under state statute 

(claiming that the bank broke the statute's disclosure rules), 

Large, 292 F.3d at 53. In both cases, we held that the arbitration 

provisions at issue still compelled the arbitrator to decide if 

and when the underlying contract was properly rescinded. See id. 

Biller and McKenna's challenge -- that the arbitration clause no 

longer binds the parties because the rest of the contract 

terminated -- is not meaningfully different. Even if the rest of 

the parties' contractual rights and obligations ended (whether 

based on a general termination clause or a rightful rescission) 

that would not mean their duties to arbitrate their contractrelated disputes ended, too. 

 Second -- although it didn't come up in Unionmutual or 

Large -- when deciding (when we must) whether the parties' 

arbitration duties have expired, we presume that the arbitration 

clause (independent as it is) survives the underlying contract. 

In theory, this presumption reflects commercial custom: When two 
- 21 - 

parties commit to arbitrate disputes arising under a contract, 

they ordinarily mean to bind each other to arbitrate such disputes 

even if the grievant doesn't complain until after the contract 

expires. See Litton Fin. Printing Div., a Div. of Litton Bus. 

Sys., Inc. v. N.L.R.B., 501 U.S. 190, 205, 208 & n.3 (1991) ("We 

presume as a matter of contract interpretation that the parties 

did not intend a pivotal dispute resolution provision to terminate 

for all purposes upon the expiration of the agreement." (citing 

Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary Workers 

Union, 430 U.S. 243, 255 (1977))). Taking our cues from Litton 

and Nolde Bros., we have compelled parties to a broad arbitration 

agreement to arbitrate post-expiration disputes that have their 

"real source" in the underlying contract unless "postexpiration 

arbitration of the issue was negated expressly or by clear 

implication." S. Bay Bos. Mgmt., 587 F.3d at 43 (quoting United 

Parcel Serv. v. Unión De Tronquistas de Puerto Rico, Local 901, 

426 F.3d 470, 473 (1st Cir. 2005)).

Taken together, these two related principles help 

explain our decisions in Unite Here, Freedom WLNE-TV, Large, and 

Unionmutual -- and they compel Biller/McKenna to arbitrate their 

claims against Brookdale. As in those cases, Biller and McKenna 

argue that the arbitration agreement expired only on the grounds 

that the contract containing the arbitration agreement terminated. 

But as we've explained, to successfully argue that an arbitration 
- 22 - 

agreement terminated and no longer governs any claim, Biller and 

McKenna had to mount an "independent" challenge to the arbitration 

agreement itself, Large, 292 F.3d at 55 (quoting Unionmutual, 774 

F.2d at 529) -- for example, by identifying evidence that the 

parties intended not only the residency agreement but also their 

arbitration obligations to lapse when McKenna relocated (or at 

some other time before Brookdale sought to invoke arbitration). 

See Litton, 501 U.S. at 204; Nolde Bros., 430 U.S. at 255; S. Bay 

Bos. Mgmt., 587 F.3d at 43. They didn't meet that burden here.9 

IV. Plaintiffs' Other Arguments 

 Biller and McKenna present two back-up reasons to affirm 

the denial of the motion to compel arbitration. First, they urge 

that the parties entered a brand-new agreement in July 2017, when 

McKenna moved, and that this new deal superseded the original 2016 

residency agreement and extinguished its arbitration clause. 

Second, they claim that the arbitration agreement was 

unconscionable and unenforceable. No doubt, we "can affirm on any 

9 Biller and McKenna argue that Brookdale forfeited its 

argument that the arbitration agreement survived the termination 

of the contract by not raising the argument in its motion to compel 

arbitration below. However, once Brookdale pointed to a valid 

agreement to arbitrate that covered their interpretive dispute, it 

was Biller and McKenna's burden to make "an independent challenge" 

to the arbitration clause itself to explain why it was no longer 

enforceable. Large, 292 F.3d at 55; see Rent-A-Ctr., 561 U.S. at 

72–73; see also Unite Here, 642 F.3d at 262 (explaining that when 

the arbitration agreement covers disputes over the interpretation 

of the underlying contract, the issue of when the contract 

terminated is presumed to be for the arbitrator).
- 23 - 

ground appearing in the record -- including one that the [district] 

judge did not rely on." Rivera-Colón v. AT&T Mobility Puerto Rico, 

Inc., 913 F.3d 200, 207 (1st Cir. 2019) (quoting Lang v. Wal-Mart 

Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016)). But neither 

argument convinces us to do so. 

A. Replacement Contract 

Biller and McKenna first argue that we should affirm 

because when the parties had McKenna moved to the memory care unit 

and raised her monthly fee (from $4,224 to $5,007) in July 2017, 

they impliedly abandoned the March 2016 residency agreement (along 

with its arbitration clause) by forming a new, unwritten contract 

that wiped out the old one. See Dasher v. RBC Bank (USA), 745 

F.3d 1111, 1121 (11th Cir. 2014) ("[C]ontracting parties are free 

to revoke an earlier agreement to arbitrate by executing a 

subsequent agreement the terms of which plainly preclude 

arbitration." (quoting Applied Energetics, Inc. v. NewOak Capital 

Mkts., LLC, 645 F.3d 522, 525 (2d Cir. 2011)). Since this 

replacement contract had no arbitration provision (the theory 

goes), the district court was right keep this case for itself.

Unlike an argument that the main-event contract 

terminated by its terms, a claim that two parties later agreed to 

extinguish their arbitration pledge (specifically) is for the 

courts to decide. See id.; accord Jaludi v. Citigroup, 933 F.3d 

246, 255 (3d Cir. 2019) (explaining that "the question of whether 
- 24 - 

a later agreement supersedes a prior arbitration agreement is 

tantamount to whether there is [still] an agreement to arbitrate" 

in the first place); Applied Energetics, 645 F.3d at 525–26. In 

Dasher (on which Biller and McKenna mainly rely), the Eleventh 

Circuit held that this is true even if the challenger alleges (as 

Biller and McKenna do) that the parties agreed to replace both the 

underlying contract and the arbitration clause in one fell swoop 

-- with a new deal that excludes arbitration. See 745 F.3d at 

1121–23 (holding that when a new agreement that "entirely 

supersed[es]" the old "is silent on arbitration, arbitration 

cannot be compelled even if [the] prior agreement contained an 

arbitration clause"). Brookdale doesn't quibble with Dasher's 

approach, and we see no reason to, either. Because in the end, 

Biller and McKenna give us no reason to think that the parties 

ever agreed to replace the 2016 residency agreement with an 

"entirely superseding" contract that snuffed out their arbitration 

duties. Id. 

Under Rhode Island law (which we're urged to apply), a 

"substituted contract" claim like theirs rests on a "factual 

determination" that two parties "mutual[ly] agree[d]" to 

"extinguish" their "rights and obligations" under an earlier 

contract and replace them with new ones. Weaver v. Am. Power 

Conversion Corp., 863 A.2d 193, 198 (R.I. 2004) (quoting Salo 

Landscape & Const. Co. v. Liberty Elec. Co., 376 A.2d 1379, 1382 
- 25 - 

(R.I. 1977)). Generally, however, when a later bargain between 

the same parties "completely cover[s] the same subjectmatter . . . as an earlier agreement" but "contain[s] terms 

inconsistent with the former contract, so that the two cannot stand 

together," it replaces the "earlier contract and becomes the only 

agreement of the parties on the subject." Carlsten v. The Widecom 

Grp., Inc., C.A. No. 97-1425, 2003 WL 21688263, at *8 (R.I. Super. 

July 1, 2003)(quoting De Blois v. Boylston & Tremont Corp., 183 

N.E. 823, 827 (1933)); see also Jaludi, 933 F.3d at 256 (applying 

the same rule "[u]nder Pennsylvania law": that "the later of two 

agreements between the same parties as to the same subject matter 

generally supersedes the prior agreement"); Applied Energetics, 

645 F.3d at 526 (same under New York law). 

Biller and McKenna do not contend that the parties 

entered a new written agreement, or even an oral one. But they do 

suggest that Brookdale's actions -- moving McKenna and raising her 

monthly fee -- and Biller/McKenna's choice to go along with them 

(agreeing to the move and paying a higher fee) reflected what's 

called an "implied in fact" contract: i.e., an agreement gleaned 

from the "parties' conduct, actions, and correspondence" rather 

than their words. Cote v. Aiello, 148 A.3d 537, 545 (R.I. 2016) 

(quoting Marshall Contractors, Inc. v. Brown Univ., 692 A.2d 665, 

669 (R.I. 1997)); see also Bailey v. West, 249 A.2d 414, 416 (R.I. 

1969) (explaining that "essential elements of contracts 'implied 
- 26 - 

in fact' are mutual agreement[ ] and intent to promise, but [where] 

the agreement and the promise have not been made in words and are 

implied from the facts"). 

In the end, though, this "new contract" theory doesn't 

save Biller and McKenna's claims from arbitration. They offer no 

evidence that the parties did anything to "extinguish" the 2016 

arbitration agreement, Weaver, 863 A.2d at 198, or strike a new 

deal that "completely cover[ed] the same subject-matter" and was 

"inconsistent with" that agreement, Carlsten, 2003 WL 21688263, at 

*8. Unlike in Dasher, the parties did not sign a new arbitrationclause-free contract that expressed a "clear and definite" intent 

to "entirely supersede" the 2016 residency agreement including the 

arbitration clause. 745 F.3d at 1118–20. Brookdale does not 

dispute that the changes to McKenna's fees and services reflect 

modifications to the underlying contract. See id. at 1120 

(distinguishing cases in which the parties merely "amend[ed] 

portions of the prior [substantive] agreement" but left the 

arbitration clause alone).10 But the arbitration clause itself 

10 Brookdale adds that the 2016 residency agreement reserved 

for Brookdale the "right to modify fees, rates and charges, [and] 

amend services provided" without a new written contract. And in 

their response, Biller and McKenna made no attempt to address that 

point or explain why the changes to McKenna's fees and services 

were anything other than "modific[ations]" or "amend[ments]" 

contemplated under the original agreement that left the 

arbitration provision intact. That language in the original 

contract may well provide another ground for concluding that the 

changes to McKenna's fees and services did not entirely supersede 
- 27 - 

indicates that it would apply even if the terms of the underlying 

contract changed: it covered (remember) any dispute "arising out 

of, or in any way relating to" not just the 2016 agreement, but 

also "any of [McKenna's] stays at the Community" (emphasis added)). 

And the chief evidence on which Biller and McKenna rely -- a draft 

residency agreement dated to July 2017 -- was unexecuted by Biller 

or McKenna, and in any event, it contained an identical arbitration 

agreement. So that draft new agreement can't show the parties 

meant to end their clear commitment to arbitrate disputes related 

to the 2016 agreement or McKenna's stays at Brookdale, either. 

Rather, the evidence points to only one conclusion: that the 2016 

arbitration agreement remains in effect. 

B. Unconscionability 

 Biller and McKenna finally argue that we should affirm 

because the district court could have concluded that the 

arbitration agreement was unconscionable under Rhode Island law. 

This dispute is also for the courts to resolve, because under the 

FAA, an arbitration agreement may still "be invalidated by 

'generally applicable contract defenses, such as fraud, duress, or 

unconscionability.'" Rent-A-Ctr., 561 U.S. at 68 (quoting Dr.'s 

Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). Where a 

it. But since (as we've already explained) the parties left it 

for the arbitrator to interpret terms (like "modify" and "amend") 

in the original contract, we don't rely on those provisions here. 
- 28 - 

party challenges the validity of an arbitration agreement 

specifically, absent a clear intent to commit the dispute to the 

arbitrator, the court has to resolve that dispute. Granite Rock, 

561 U.S. at 299-300.11 This validity assessment entails 

"consideration of the enforceability of the agreement and if it is 

void or voidable" under state law. Nat'l Fed'n of the Blind v. 

The Container Store, Inc., 904 F.3d 70, 81 (1st Cir. 2018). 

Here, Biller and McKenna have not shown the arbitration 

agreement in the March 2016 residency agreement is unconscionable. 

As we've read it, Rhode Island law requires the party opposing 

arbitration to prove both procedural and substantive 

unconscionability: procedurally, that the party had no 

"meaningful choice" but to sign the contract, and substantively, 

that "the challenged contract terms are unreasonably favorable to 

the other party." Britto v. Prospect Chartercare SJHSRI, LLC, 909 

F.3d 506, 515 (1st Cir. 2018) (quoting E.H. Ashley & Co. v. Wells 

Fargo Alarm Servs., 907 F.2d 1274, 1278 (1st Cir. 1990)). The 

11 Of course, "the validity of an arbitration clause is itself 

a matter for the arbitrator where the agreement so provides." 

Awuah, 554 F.3d at 11. (Although, even then, we still must consider 

any challenge to "the precise agreement to arbitrate at issue," 

namely the agreement providing for arbitration of the validity of 

the arbitration clause. Rent-A-Ctr. 561, U.S. at 71). But as we 

have discussed, there is no clear and unmistakable evidence that 

the parties agreed to delegate disputes over the enforceability or 

unconscionability of the arbitration agreement itself. 
- 29 - 

party challenging an arbitration agreement as unconscionable bears 

the burden to show both prongs are met. See id. 

Biller and McKenna argue that the arbitration agreement 

was procedurally unconscionable because (among other things) 

McKenna had no meaningful opportunity to negotiate its terms; 

Brookdale foisted the agreement on her only after she'd moved in 

with all her belongings. But even if the agreement was 

procedurally unconscionable (which we don't decide), 

Biller/McKenna haven't produced evidence that could reasonably 

show the arbitration agreement is unconscionable in substance. 

When it comes to substantive unconscionability, Rhode 

Island law sets a daunting standard: the "inequality of the 

bargain [must be] so manifest as to shock the judgment of a person 

of good sense," and the "terms [must be] 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)). On its face, Brookdale's 

arbitration agreement doesn't seem to flunk that test: as 

Brookdale points out, it says the arbitration will take place in 

Rhode Island (in "the county in which the Community is located"), 

the arbitrator will be impartial and apply the Rhode Island Rules 

of Civil Procedure and Rhode Island law, and the parties will 

choose an arbitrator together and split the costs evenly. 
- 30 - 

In response, Biller and McKenna take a scattershot 

approach. They list twelve one-sentence challenges to support 

their position that the arbitration agreement is unconscionable. 

We treat the overwhelming majority of them as waived for lack of 

development. See United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived."). But two arguments call for further discussion. 

First, Biller and McKenna argue that the arbitration 

agreement is substantively unconscionable because "the parties 

share the cost of the arbitrator." The Rhode Island high court 

has not spoken directly to the unconscionability of arbitrationcost-sharing. But, addressing an analogous challenge that an 

arbitration agreement prevented the "effective vindication" of 

federal statutory rights, the Supreme Court held that "where, as 

here, a party seeks to invalidate an arbitration agreement on the 

ground that arbitration would be prohibitively expensive, that 

party bears the burden of showing the likelihood of incurring such 

costs." Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90–

92 (2000). Taking their cues from Green Tree, most state courts, 

in their tests for substantive unconscionability, also require the 

party alleging that arbitration would be too expensive to produce 

evidence of the financial burden the arbitration is likely to 
- 31 - 

impose.12 For example, we recently noted that in neighboring 

Massachusetts, "an arbitration-fee-splitting arrangement is not 

substantively unconscionable when the arbitration fees a plaintiff 

would owe amount to less than the damages the plaintiff claims." 

Bekele v. Lyft, Inc., 918 F.3d 181, 188 (1st Cir. 2019). 

But Biller and McKenna point to no evidence of their 

financial condition or of the potential costs of arbitrating their 

dispute with Brookdale. Nor do they give us any reason to think 

that the courts of Rhode Island -- which gives arbitration a 

"favored status," Pepin v. Am. Universal Ins. Co., 540 A.2d 21, 22 

(R.I. 1988) (citing R.I. Gen. Laws § 10–3–2) -- would adopt a rule 

that fee splitting is always unconscionable in cases like this 

one.13 With so little to go on, we can't conclude the fee-splitting 

12 See, e.g., Larsen v. Citibank FSB, 871 F.3d 1295, 1316 

(11th Cir. 2017) ("[U]nder Washington law, the party challenging 

a fee-splitting provision must provide specific information about 

the arbitration fees it would be required to pay and describe why 

those fees would be prohibitive."); Tompkins v. 23andMe, Inc., 840 

F.3d 1016, 1026 (9th Cir. 2016) (describing California law as 

"adopt[ing] 'an ability-to-pay approach' to arbitration fees in 

the consumer context, requiring a 'case-by-case determination of 

affordability' for consumers, and a rejection of the . . . 

categorical approach"); Kai Peng v. Uber Techs., Inc., 237 F. Supp. 

3d 36, 57 (E.D.N.Y. 2017) (noting correctly that "[c]ourts applying 

New York law have refused to find that fee-splitting provisions in 

arbitration agreements are unenforceable where plaintiffs have not 

affirmatively demonstrated that the fee-splitting provisions would 

preclude them from pursuing their rights in the arbitral forum" 

(citing Brady v. Williams Capital Grp., L.P., 14 N.Y.3d 459, 467 

(2010)). 

13 In Brookdale Senior Living Communities v. Allen, the United 

States District Court for the District of Oregon held that a 
- 32 - 

provision makes the arbitration agreement here substantively 

unconscionable under Rhode Island law. 

Second, Biller and McKenna argue that "the requirement 

of confidentiality perpetuates the bad conduct Brookdale engaged 

in here and places other people at risk of similar injuries."14 In 

similar fee-splitting provision in one of Brookdale's arbitration 

agreements, along with other one-sided provisions, rendered the 

agreement unconscionable. No. 15-1400-CL, slip. op. at *11 (D. 

Or. Dec. 1, 2015). In that case, though, the challenger submitted 

an affidavit estimating likely arbitration fees. Id. The court 

nonetheless held that "such a showing [was] not necessary . . . 

where it is undisputed that the [consumer] would have to pay all 

or part of the arbitrator's fees," citing decisions in the Ninth 

and D.C. Circuits holding that cost-sharing provisions are 

unconscionable as applied to statutory claims because they 

"impose[ ] on some consumers costs greater than those a complainant 

would bear if he or she would file the same complaint in court." 

Id. (citing Ting v. AT & T, 319 F.3d 1126, 1151 (9th Cir. 2003); 

Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1485 (D.C. Cir. 

1997)). After Green Tree, however, the D.C. Circuit has declined 

to extend Cole to common-law claims like Biller/McKenna's, Brown 

v. Wheat First Sec., Inc., 257 F.3d 821, 825–26 (D.C. Cir. 2001), 

and the Ninth Circuit (based on subsequent state law developments) 

has limited the rule in Ting to the employment context, see 

Tompkins, 840 F.3d at 1026. Thus, we are not persuaded that the 

Rhode Island courts would adopt such a per se rule. So we conclude 

that Biller and McKenna have not shown that Brookdale's arbitration 

clause is substantively unconscionable for fee-splitting reasons. 

14 The confidentiality provision stated: 

The arbitration proceeding shall remain confidential in 

all respects, including the Demand for Arbitration, all 

arbitration filings, deposition transcripts, documents 

produced or obtained in discovery, or other material 

provided by and exchanged between the parties and the 

arbitrator's findings of fact and conclusions of 

law . . . . Further, the parties to the arbitration 

also agree not to discuss the amount of the arbitration 

award or any settlement, the names of the parties, or 
- 33 - 

a similar vein, the Ninth Circuit (applying California law) has 

held that a contractual provision requiring "all arbitration" to 

"remain confidential" was unconscionable as applied to a putative 

class of millions of consumers because it unreasonably favored 

corporate repeat players like (potentially) Brookdale, who could 

learn from the results of prior arbitrations, over first-timers 

who (due to the gag provision) would lack access to information 

about past arbitrations against the company involving similar 

issues. See Ting, 319 F.3d at 1151–52; see also Pokorny v. 

Quixtar, Inc., 601 F.3d 987, 1002 (9th Cir. 2010) (reasoning that 

an agreement not to discuss the plaintiffs' claims with other 

employees could also handicap their "ability to investigate their 

claims and engage in meaningful discovery"); Larsen, 871 F.3d at 

1319 (invalidating a similar agreement under Washington law 

because the company's "informational advantage" could 

"discourag[e] consumers from pursuing valid claims"). 

More recently, however, other courts have recognized 

that "[c]onfidentiality can be desirable to customers in some 

circumstances," holding that similar mums-the-word provisions 

don't always make the arbitration agreement unconscionable. 

Iberia Credit Bureau, Inc., v. Cingular Wireless LLC, 379 F.3d 

name/location of the Community except as required by 

law. 
- 34 - 

159, 175 (5th Cir. 2004) (applying Louisiana law and citing 

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 

1, 8 n.4 (1st Cir. 1999), where we noted in dicta that both sides 

of a dispute may "prefer arbitration because of the confidentiality 

and finality that comes with arbitration"); Caley v. Gulfstream 

Aerospace Corp., 428 F.3d 1359, 1378-79 (11th Cir. 2005) (applying 

Georgia law). The Ninth Circuit has since joined this club, 

applying later developments in California law to uphold 

confidentiality provisions similar to Brookdale's and limiting 

Ting (if it survives at all) to cases involving thousands or 

millions of consumers. See Poublon v. C.H. Robinson Co., 846 F.3d 

1251, 1265–67 & n.4 (9th Cir. 2017) (citing Kilgore v. KeyBank, 

Nat'l Ass'n, 718 F.3d 1052, 1059 n.9 (9th Cir. 2013) (en banc)); 

accord Machado v. System4 LLC, 28 N.E.3d 401, 415 (Mass. 2015) 

(upholding confidentiality requirement in a contract that affected 

only "a relatively small and known quantity" of workers). 

Against this background, Biller and McKenna's uphill 

attack on the confidentiality provision can't succeed. They don't 

address any facts (like the number of residents subject to the 

agreement) that bear on the strength of Brookdale's repeat-player 

advantage; they don't argue that the confidentiality provision is 

broad enough to stymie their evidence-gathering efforts; and, most 

importantly, they don't marshal any Rhode Island caselaw 

suggesting the Ocean State courts would hold such provisions 
- 35 - 

unconscionable despite the state's policy favoring arbitration as 

a means of dispute resolution. See Pepin, 540 A.2d at 22. As 

such, they haven't established that the arbitration agreement here 

signed is unenforceable.

V. Wrap up 

 For these reasons, the district court's order denying 

arbitration is reversed, each side to bear its own costs. We 

remand to the district court with instructions to compel 

arbitration over all disputes remaining in this case.