In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 21-2256 

BRANDI CAMPBELL, 

Plaintiff-Appellee, 

v.

KEAGLE INC. and EDWARD SALFELDER, JR., 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court

for the Central District of Illinois.

No. 20-CV-2271 — Colin S. Bruce, Judge. 

____________________ 

ARGUED JANUARY 7, 2022 — DECIDED MARCH 4, 2022 

____________________ 

Before EASTERBROOK, ST. EVE, and KIRSCH, Circuit Judges. 

EASTERBROOK, Circuit Judge. When she started to work at 

the Silver Bullet Bar in Urbana, Illinois, Brandi Campbell 

signed a contract with Keagle Inc., the bar’s owner. Section 8 

provides that “[a]ny controversy, dispute or claim arising out 

of” her work will be arbitrated. Such a dispute has arisen, but 

Campbell filed a suit rather than a demand for arbitration. 

The district judge denied Keagle’s motion to refer the maZer 
2 No. 21-2256 

to arbitration, 2021 U.S. Dist. LEXIS 245472 (C.D. Ill. June 28, 

2021), and Keagle appealed under 9 U.S.C. §16(a). 

The district judge deemed several parts of the arbitration 

clause unenforceable because they are unconscionable as a 

maZer of Illinois law. Unconscionability is a defense to arbitration, if it is among “such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §2. In other 

words, arbitration is permissible to the extent, and only to the 

extent, that state law would enforce other equivalent agreements. The district judge thought that Illinois would not enforce this agreement because some provisions in the arbitration clause are too favorable to Keagle. 

Section 8 of the contract provides that any dispute 

shall be exclusively decided by binding arbitration under the Federal Arbitration Act. The owners of the Silver Bullet Bar reserve 

the right to choose the arbitrator and location of any such proceedings. I agree that all claims between me and the Silver Bullet 

Bar, its owners, or management will not be litigated individually 

and that I will not consolidate or file a class suit for any claim 

against the Silver Bullet Bar, its owners, or management. I will pay 

the cost of my arbitration and legal costs, regardless of the outcome of any such action.

The district judge saw multiple lopsided aspects of this 

clause. Keagle gets to choose the arbitrator and the location of 

the arbitration; Campbell must bear all costs even if Keagle 

loses on the merits and some state or federal statute requires 

losers to foot the bill. The district judge added that the agreement’s silence about arbitral procedures might enable Keagle’s chosen arbitrator to use biased modes of decision 

(though 9 U.S.C. §10 says otherwise). The judge recognized 

that arbitration is not itself unconscionable, but he refused to 
No. 21-2256 3 

order arbitration once details such as selection and location 

had been stripped from the clause. 

The district court relied on Razor v. Hyundai Motor America, 

222 Ill. 2d 75 (2006), which is among many decisions holding 

that a one-sided contract is unconscionable. The judge did not 

find that the contract between Campbell and Keagle is onesided; instead he assumed that a rule applicable to a contract 

as a whole must be true about each aspect of each clause in it. 

That’s far from clear to us. Consider a contract with four 

clauses. Clause 1 requires Seller to deliver 100 merchantable 

widgets to Buyer. Clause 2 requires Buyer to pay $1 million to 

Seller. Clause 3 provides that any dispute about the widgets’ 

merchantability will be resolved by an expert, chosen by 

Buyer from a trade association’s list. Clause 4 provides that 

Buyer has only 30 days to contest the widgets’ merchantability, even though state law otherwise allows two years. Each 

of these four clauses is one-sided, if considered in isolation; 

Clauses 1 and 3 favor Buyer, while Clauses 2 and 4 favor 

Seller. Yet no one would contend that the contract as a whole 

is unconscionable (if widgets are worth roughly $10,000 

apiece) or that any of the clauses is unenforceable. 

Keagle does not pursue this line of reasoning, however. It 

accepts the district court’s holding that provisions for selecting an arbitrator, specifying venue, and paying costs are unenforceable. It maintains that its only goal is to arbitrate rather 

than litigate—that the details don’t maZer, so the judge may 

fill in the blanks. This is its sole argument on appeal. 

Section 4 of the Federal Arbitration Act, 9 U.S.C. §4, fills in 

one blank. It provides that, in the absence of a contrary agreement, the arbitration takes place in the same judicial district 

as the litigation—here, the Central District of Illinois. And the 
4 No. 21-2256 

district judge himself stressed that “who pays” may be determined by some other state or federal statute, such as the Fair 

Labor Standards Act, on which Campbell’s suit rests. See 29 

U.S.C. §216(b) (prevailing plaintiffs recover costs and legal 

fees). That leaves only the choice of arbitrator—who, once selected, can prescribe the procedures if they are not otherwise 

determined. For example, if the arbitrator were chosen from a 

list maintained by the American Arbitration Association, the 

AAA’s procedures would be used automatically. 

According to §5, 9 U.S.C. §5, “if for any ... reason there 

shall be a lapse in the naming of an arbitrator ... then upon 

the application of either party to the controversy the court 

shall designate and appoint an arbitrator”. The use of “shall” 

means that this is a judicial duty; a court cannot scuZle arbitration by declining to name an arbitrator. See, e.g., Green v. 

U.S. Cash Advance, LLC, 724 F.3d 787 (7th Cir. 2013). 

If the parties have made clear that they want to arbitrate 

only under prescribed conditions, which cannot be fulfilled, 

then litigation is the only remaining option. But this contract 

does not imply that Campbell agreed to arbitration only because Keagle would choose the arbitrator. Keagle has that option—or had it, until the district judge said no—but people 

may waive contractual entitlements. Keagle has done so by 

accepting this aspect of the district court’s decision. As in

Green, the mutual assent to arbitration remains, and a federal 

judge should implement the parties’ decision whenever possible. That can be done by naming an arbitrator under §5, and 

everything else will take its own course. 

Campbell protests that this uses §5 to rewrite an arbitration clause. It would be beZer to say that §5 permits (indeed 

requires) a judge to name an arbitrator, even if the only thing 
No. 21-2256 5 

that survives a judge’s encounter with the clause is the fact 

that the parties have agreed to arbitrate. That’s what happened in Green itself, and in the cases on which Green relied. 

One final argument requires only brief comment. Keagle 

contends that it does not affect enough interstate commerce 

to bring it within the scope of the Fair Labor Standards Act. 

Maybe, maybe not. That will be for the arbitrator (and if necessary a federal judge) to determine. Either way, the amount 

of commerce concerns the coverage of the statute; Keagle is 

wrong to think that it is an element of subject-maZer jurisdiction. Campbell’s claim arises under federal law, so 28 U.S.C. 

§1331 supplies jurisdiction. If she fails to prove all elements of 

her claim, including the commerce element, then she loses on 

the merits, not for want of jurisdiction. See, e.g., Bell v. Hood, 

327 U.S. 678 (1946); United States v. Martin, 147 F.3d 529, 531–

33 (7th Cir. 1998). 

The district court’s decision is vacated, and the case is remanded with instructions to name an arbitrator, refer the dispute to arbitration, and stay further judicial proceedings.