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 
- 2 -

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 

 1 Anders 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. 
- 3 -

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 employmentrelated 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: 
- 4 -

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 atwill 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. 
- 5 -

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, nonAfrican-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 federalcourt 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 
- 6 -

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 
- 7 -

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." 
- 8 -

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 
- 9 -

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 
- 10 -

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 
- 11 -

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 
- 12 -

Weighing in on the Case 

Consideration 

Because arbitration is a creature of contract, see RentA-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). 
- 13 -

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 
- 14 -

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 illusoryconsideration 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 
- 15 -

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 atwill 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 
- 16 -

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. 
- 17 -

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 
- 18 -

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 unconscionabilitycentered 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 
- 19 -

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 
- 20 -

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 
- 21 -

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).