United States Court of Appeals For the First Circuit
No. 20-1378
MAISHA EMMANUEL,
Plaintiff, Appellant,
v.
HANDY TECHNOLOGIES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Thompson, and Barron, Circuit Judges.
Shannon E. Liss-Riordan, with whom Matthew Thomson, Michelle Cassorla, and Lichten & Liss-Riordan, P.C. were on brief, for appellant. Michael Mankes, with whom Jennifer M. Duke and Littler Mendelson P.C. were on brief, for appellee.
March 22, 2021 BARRON, Circuit Judge. This appeal concerns Maisha
Emmanuel's 2015 putative class action in the District of
Massachusetts against Handy Technologies, Inc. ("Handy"), which is
the operator of an online platform that enables users to retain
the services of house cleaners and other providers of at-home
services. The suit claims that Emmanuel and others in the putative
class qualified as employees of Handy under both the Fair Labor
Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-219, and Mass.
Gen. Laws ch. 149, § 148B. The suit further claims, among other
things, that, in consequence, Handy failed to pay them the minimum
wage to which they were entitled under those measures for the work
that they were retained to provide through Handy's online platform.
Handy moved to dismiss the suit and to compel individual
arbitration pursuant to Federal Rule of Civil Procedure 12(b)(1)
and 9 U.S.C. §§ 3, 4. Handy premised the motion on certain
provisions that were set forth in an online contract ("the
Agreement") that it claimed to have entered into with Emmanuel.
The District Court granted that motion, and Emmanuel now appeals.
We affirm.
I.
Emmanuel had worked as a nanny and house cleaner for a
number of years before, in May 2015, she learned about Handy
through indeed.com, a job posting website. She thereafter accessed
- 2 - Handy's website and completed a form on it titled, "Home Cleaner
Application."
To complete the online application form, Emmanuel was
required to provide personal information; describe her
availability and past work experience; recount how she learned
about Handy; indicate whether she had access to a smartphone, the
Internet, a car, and a bank account; and attest to her ability to
work legally in the United States. Once the online form had been
completed, the Handy website required Emmanuel to click a checkbox
next to the words "I agree to Handy's Terms of Use" before she
could proceed to the next page. That page then contained a box
labeled "Submit Application."
The words "Terms of Use" were in blue font and were a
hyperlink to a page with text appearing under those same words.
The text set forth various terms, including a mandatory arbitration
clause that was visible if one scrolled through the text on the
screen.
Shortly after Emmanuel submitted the completed online
application form through the Handy website, a Handy representative
contacted her regarding an interview, which was conducted over the
phone. She then attended an orientation session for Handy that
was held in Boston, Massachusetts. At some point thereafter, she
was also required by Handy as part of the application process to
complete a background check.
- 3 - Handy then provided Emmanuel with a personal
identification number ("PIN") to access its app, which would enable
her to connect with Handy customers who were seeking to retain
house cleaners through the company's online platform. On May 14,
2015, Emmanuel used her smartphone to access that app with that
PIN.
Upon opening the app, Emmanuel encountered a screen that
she was required to review prior to proceeding to access further
information on the app. The screen contained the following text:1
To continue, please confirm that you understand the following:
• I understand and acknowledge that I am a self- employed contractor and not a Handy employee. • I specifically desire and intend to operate as an independent contractor. • I understand that I am responsible for all costs and expenses associated with operating as an independent contractor, including with respect to tools, insurance, materials, supplies and personnel. • I understand and agree that, if at any time, I believe that my relationship with Handy is something other than an independent contractor, I agree to immediately notify Handy of this view. • I understand that the Handy Service Professional Agreement has changed and that I need to carefully read the updated agreement on the following screen before agreeing to the new terms.
It is not clear from the record how much of the text was 1
visible to Emmanuel, given the specifics of her smartphone, without scrolling, but she makes no argument that this uncertainty bears on the issues before us.
- 4 - To proceed beyond that screen, Emmanuel was required to
click a blue button that read "Confirm" and that was placed below
the bullet points. The only other button that she could have
selected was a gray button reading "Click here to return to portal
home and see the newest jobs."
Selecting the latter button would have refreshed the
screen and displayed the bullet points again. Emmanuel selected
"Confirm."
Emmanuel was then presented with a second screen. The
top of that screen read: "To continue, please accept the revised
Independent Contractor Agreement." Those words were followed by
the title "HANDY TECHNOLOGIES, INC. SERVICE PROFESSIONAL
AGREEMENT" and the initial sentences of the Agreement, which began:
This Service Professional Agreement . . . sets forth the terms and conditions whereby you, an independent service provider fully-licensed (to the extent required by applicable law) and qualified to provide the services contemplated by this Agreement . . ., agree to provide certain services (as described on Schedule 1) to third parties that may, from time to time, be referred to you via the web-based platform of Handy Technologies, Inc. . . . . BY USING THE HANDY PLATFORM (AS DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS SERVICE PROFESSIONAL AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SERVICE PROFESSIONAL AGREEMENT, DO . . . .
The visible text on this screen ended mid-sentence,
after the word "DO," and a fraction of the text in the following
- 5 - line was visible prior to scrolling.2 There was no scroll bar in
the interface but a user could read the Agreement in its entirety
by scrolling with the aid of the touch screen.
Regardless of whether a user scrolled through the terms
of the Agreement, a blue button labeled "Accept" was located at
the bottom of the screen, partially obscuring the Agreement's text.
The alternative to selecting "Accept" once more was to click a
gray button, which again was labeled "Click here to return to
portal home and see the newest jobs." Doing so would simply result
in the same screen being refreshed.
Emmanuel testified that she did not scroll through the
terms of the Agreement on the day that she downloaded the app.
Had she done so, she would have found, at section twelve out of
fifteen, a provision entitled "DISPUTE RESOLUTION; GOVERNING LAW."
The second paragraph of that section provided as
follows:
Mandatory and Exclusive Arbitration. Handy and Service Professional mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act . . . and shall apply, including but not limited to, to any and all claims arising out of or relating to this Agreement, the Service Professional's classification as an independent contractor, Service Professional's
2 Here, too, the record is not clear as to whether the text on Emmanuel's phone screen displayed differently than the screenshots that are in the record, but she has not argued that her display differed in any meaningful way.
- 6 - provision of Services under this Agreement, the payments received by Service Professional for providing Services, the termination of this Agreement, and all other aspects of the Service Professional's relationship with Handy, past or present, whether arising under federal, state or local statutory and/or common law.3
Instead of reviewing that language, Emmanuel pressed the
button on the screen labeled "Accept." Doing so enabled her to
use the app to sign up to perform jobs solicited by residential
customers of Handy. Emmanuel performed between ten and twenty
jobs for Handy customers in May 2015 using the app.
At the end of that month, however, Emmanuel stopped
taking jobs through Handy. Per her later explanation, she decided
to do so because she "had an issue with non-payment of a couple of
jobs that [she] completed."
Nonetheless, in early June 2015, Emmanuel did log in to
the Handy app one more time. She did so to obtain personal
information in order to "keep records of [the] ongoing situation
of . . . not being paid for the jobs that [she had] done with
Handy."
Before Emmanuel could review that information when she
logged in to the app on that occasion, she was presented with a
3 The text of this provision is similar but not identical to the provision concerning arbitration that we have referred to earlier and that was set forth under the heading "Terms of Use" on the Handy website. Emmanuel makes no argument that any of the differences between the two provisions is material to any issue before us.
- 7 - screen that indicated that the terms of the Agreement had changed.
She was once again required to click "Accept" on a screen
displaying the initial terms of the Agreement before proceeding to
retrieve her records. She did so. That iteration of the Agreement
likewise contained a mandatory arbitration provision.
On July 7, 2015, Emmanuel filed a complaint in the U.S.
District Court for the District of Massachusetts. She brought
suit "on behalf of individuals who have worked for Handy . . . as
cleaners anywhere in the United States (other than California)."
Emmanuel alleged that Handy had misclassified the
putative class members as independent contractors rather than
employees and had therefore violated the FLSA, see 29 U.S.C. § 206,
and Mass. Gen. Laws ch. 151, § 1, by failing to pay them the
minimum wage required by each statute. She also contended that
Handy had violated Mass. Gen. Laws ch. 149, § 148, by requiring
the putative class members to bear the costs of their own cleaning
supplies.
Handy moved to dismiss and compel arbitration on August
10, 2015 pursuant to Federal Rule of Civil Procedure 12(b)(1) and
9 U.S.C. §§ 3, 4. The company argued that Massachusetts law
applied and that, under it, Emmanuel was bound by the Agreement,
which Handy contended requires arbitration of the claims at issue
and bars her from bringing a class or collective action. Handy
asserted that Emmanuel had entered into the Agreement with the
- 8 - company in three different instances -- when she completed the
original online application, when she downloaded the mobile app,
and when she logged in to the website to obtain her personal
records.4
Emmanuel opposed the motion on a number of grounds.
Among them were that, under Massachusetts law, she had not entered
into the Agreement and that, even if she had, the Agreement could
not be enforced to compel arbitration due to the doctrine of
unconscionability.
The District Court held a one-day bench trial on February
10, 2020. The District Court first found that, although Emmanuel
did not originally recall doing so, she had clicked the checkbox
next to the words "I agree to Handy's Terms of Use" when completing
the application in early May 2015; that she had clicked "Accept"
when presented with the Agreement on May 14, 2015, when she first
downloaded the app; and that she had again clicked "Accept" with
respect to the Agreement on June 5, 2015, when she reopened the
app to retrieve her personal information. The District Court then
held that, under Massachusetts law, Emmanuel had, in each of those
4 Although several versions of the Agreement were in place during the times relevant to this case, Emmanuel has not asserted that the versions differed in any material way. We will therefore refer to "the Agreement" without differentiating between them.
- 9 - three instances, entered into an agreement to arbitrate with Handy,
and to waive her right to bring a class claim.5
The District Court also rejected Emmanuel's argument
that, even if she had entered into the agreement with Handy to
arbitrate and to waive her class claim, the agreement was not
enforceable under the unconscionability doctrine. The District
Court explained that First Circuit precedent precluded her claim
that the arbitration clause itself was unconscionable, see
Bekele v. Lyft, Inc., 918 F.3d 181, 187-89 (1st Cir. 2019), and
that the only other provision in the Agreement that she contended
was unconscionable was severable and thus did not provide a basis
for voiding the agreement to arbitrate itself. The District Court
therefore granted Handy's motion to compel arbitration and
dismissed Emmanuel's putative class action claim. Because the
District Court also concluded that the separate class action waiver
in the Agreement was likewise enforceable, it directed Emmanuel to
"submit her individual claims to arbitration."
Emmanuel filed a timely notice of appeal on March 30,
2020. See Fed. R. App. P. 4(a)(1)(A); Fed. R. App. P. 26(a)(1)(C).
In the notice of appeal, Emmanuel challenges the District Court's
granting of the motion to compel arbitration as well as its order
The District Court explained that it applied Massachusetts 5
law "despite the contemplation of New York law" in the various alleged contracts because both Emmanuel and Handy "appear[ed] to agree" that was the proper course.
- 10 - of dismissal. Her briefing to us addresses only the District
Court's enforcement of the arbitration provision and does not
challenge any aspect of the District Court's order with respect to
the class action waiver. We thus focus solely on the challenge to
the District Court's ruling regarding the arbitration provision.
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court's order granting a motion to dismiss and to compel
arbitration de novo. Waithaka v. Amazon.com, Inc., 966 F.3d 10,
16 (1st Cir. 2020).
II.
Emmanuel first contends that the District Court erred in
ruling that, under Massachusetts law, she had entered into an
agreement to arbitrate. She argues that the contract formation
issues in this case are for the court to decide rather than for
the arbitrator and that they turn on the requirements of
Massachusetts contract law. See First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). Moreover, we decline to consider
Handy's argument to the contrary, because Handy failed to raise
that argument below. See In re Curran, 855 F.3d 19, 27 n.4 (1st
Cir. 2017).
After the parties submitted their briefing to us on
appeal addressing contract formation, the Massachusetts Supreme
Judicial Court ("the SJC") decided Kauders v. Uber Technologies,
Inc., 159 N.E.3d 1033 (Mass. 2021). There, the SJC set forth the
- 11 - "proper framework for analyzing issues of online contract
formation" under Massachusetts law. Id. at 1049.
In light of that development, we ordered supplemental
briefing from the parties about the import to this case of the
SJC's decision in Kauders. See, e.g., Steinmetz v. Coyle & Caron,
Inc., 862 F.3d 128, 133 (1st Cir. 2017). Having now reviewed the
supplemental briefs as well as Kauders itself, we conclude that
Kauders compels us to find that Emmanuel did form an arbitration
agreement with Handy and that, in consequence, there is no need
for us to certify the issue of contract formation to the SJC. See
Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st
Cir. 2013) (providing that certification is not appropriate "in
cases when 'the course the state court would take is reasonably
clear'" (alterations omitted) (quoting In re Engage, Inc., 544
F.3d 50, 53 (1st Cir. 2008))).6
A.
Kauders explained that for an online contract to have
been formed under Massachusetts law the user of the online
interface must have been given "reasonable notice of the terms" of
the agreement and must have made a "reasonable manifestation of
Emmanuel separately argued in her original briefs to this 6
Court that the arbitration provision itself was not "reasonably conspicuous" within the Agreement, but, in light of Kauders, which does "not require that the [reasonable] notice be 'conspicuous,'" 159 N.E.3d at 1049 n.25, Emmanuel's argument fails.
- 12 - assent to those terms." 159 N.E.3d at 1049. Kauders further
explained that the party seeking to enforce the contract bears the
burden of establishing that each of these requirements has been
met. Id.
The "reasonable notice" requirement is plainly
satisfied, according to Kauders, when a party to the online
contract has "actual notice" of its terms, such as would be the
case if that party had "reviewed" those terms or "must somehow
interact with the terms before agreeing to them." Id. But, the
SJC further explained in Kauders that, even absent actual notice,
the reasonable notice requirement may be met if "the totality of
the circumstances" indicate that the user of the online interface
was provided with such notice of the terms. Id.
Kauders describes the relevant factors to consider in
assessing whether such reasonable notice was provided in the
absence of actual notice. It explains that these factors include
the "form of the contract" -- such as whether the "document
containing or presenting terms . . . appear[s] to be [a]
contract." Id. (citing Polonsky v. Union Fed. Sav. & Loan Ass'n,
138 N.E.2d 115, 117-18 (Mass. 1956)).
Kauders noted that "contracting over [the] Internet is
different from paper transactions" and that "reasonable users of
[the] Internet may not understand that they are entering into a
contractual relationship." Id. (citing Sgouros v. TransUnion
- 13 - Corp., 817 F.3d 1029, 1035 (7th Cir. 2016)). And, in accord with
that observation, Kauders explained that notice is more likely
reasonable where "the nature, including the size, of the
transaction" suggests a contract is being entered into, where "the
notice conveys the full scope of the terms and conditions," and
where the "interface . . . 'adequately communicate[s]' . . . the
terms . . . of the agreement." Id. at 1049-50 (quoting Sgouros,
817 F.3d at 1034). "Ultimately," the SJC explained, the question
of reasonable notice comes down to whether "the offeror [has]
reasonably notif[ied] the user that there are terms to which the
user will be bound and [has] give[n] the user the opportunity to
review those terms." Id. at 1050.
Finally, Kauders addressed what is required to find that
a party has manifested assent to the terms of an online agreement.
Id. at 1050-51. The SJC first explained that so-called "clickwrap"
agreements -- where a user is "required to expressly and
affirmatively manifest assent to an online agreement by clicking
or checking a box that states that the user agrees to the terms
and conditions" -- are "regularly enforced" and are the "clearest
manifestations of assent." Id. at 1050. Alternatively, the SJC
explained, in the absence of "such express agreement," the task is
"more difficult" and "courts must again carefully consider the
totality of the circumstances," including whether "the connection
- 14 - between the action taken and the terms is []clear" and whether
"the action taken . . . clearly signif[ies] assent." Id. at 1051.7
B.
The parties address the import under Kauders of
Emmanuel's having checked the box on the application on Handy's
website that asked if she "agree[d]" to the "Terms of Use." We
focus our analysis instead on a different action that she took but
that the parties also address in relation to Kauders: her
subsequent selection of "Accept" on the screen containing the
initial sentences of the Agreement on the Handy app on May 14,
2015. As we will explain, we conclude that, per Kauders, Emmanuel
had reasonable notice of the mandatory arbitration provision in
the Agreement that Handy seeks to enforce when she selected
"Accept" on that app at that time, such that -- setting aside for
the moment her separate contention regarding the doctrine of
unconscionability -- she was bound by it.
The "form" of the Agreement, Kauders, 159 N.E.3d at 1049,
clearly points in favor of the conclusion that Emmanuel had
reasonable notice that it contained terms to which she would be
bound when she selected "Accept" on the app on May 14, 2015. The
language that the Handy app displayed on the screen of Emmanuel's
smartphone prior to her selecting "Accept" at that time stated:
This appeal does not implicate the assent issue Kauders 7
addresses.
- 15 - "To continue, please accept the revised Independent Contractor
Agreement." In addition, that screen displayed text that was
plainly a portion of the "Agreement" that she was being asked to
"[a]ccept."
True, only a portion of the Agreement was automatically
visible prior to her selecting "Accept," and the term at issue
here concerning arbitration did not immediately appear on the
screen containing the "Accept" button. It would have been visible
only by scrolling, and the app did not require Emmanuel to scroll
through the Agreement in its entirety prior to proceeding to the
next screen.
Nonetheless, the screen displaying the portion of the
Agreement that was plainly visible before Emmanuel selected
"Accept" made clear that additional text further specifying the
terms of the Agreement could be viewed by scrolling. For example,
the visible text explicitly referred to later portions of the
Agreement that could not yet be seen, and the final visible
sentence was prematurely truncated in a manner that suggested that
additional text continued below what was revealed initially.
Indeed, we note that Emmanuel herself acknowledged in her
deposition that she in fact did scroll through the full Agreement
at a later date.
To the extent that Emmanuel means to argue that, as a
matter of law, she did not receive reasonable notice of the term
- 16 - of the Agreement that is at issue because the app did not require
her to scroll through its terms prior to selecting "Accept," that
contention is unpersuasive. Kauders did note, in finding no online
contract to have been formed in that case, that the online
interface at issue there "did not require the user to scroll
through the conditions or even select them," 159 N.E.3d at 1052
(emphasis added), and that it "allow[ed] the registration to be
completed without reviewing or even acknowledging the terms and
conditions," id. at 1054 (emphasis added). But, we do not read
either statement impliedly to suggest that a user must be required
to scroll through the full text of an agreement prior to
manifesting assent to it in order to be bound by terms visible
only through scrolling. Otherwise, the references to
"select[ing]" or "acknowledging" the terms in those statements by
the SJC would be unnecessary. Nor does Emmanuel identify any
precedent beyond those statements that would indicate that
Massachusetts law imposes such a requirement, and we are not aware
of any. Cf. Meyer v. Uber Techs., Inc., 868 F.3d 66, 77-79 (2d
Cir. 2017) (applying California law and upholding an arbitration
provision in an online contract without finding that the interface
required the user to scroll through terms); RealPage, Inc. v. EPS,
Inc., 560 F. Supp. 2d 539, 545 (E.D. Tex. 2007) (applying Texas
law); Kilgallen v. Network Sols., Inc., 99 F. Supp. 2d 125, 129-
30 (D. Mass. 2000) (applying Virginia law); cf. also Penniman v.
- 17 - Hartshorn, 13 Mass. 87, 90-91 (1816) (upholding contract even
though location of signature might suggest party seeking to evade
enforcement did not read entire document); Mahoney v. RBS
Citizens, N.A., 919 N.E.2d 717, 2010 WL 129808, at *2 n.5 (Mass.
App. Ct. 2010) (unpublished table decision) ("There is . . . no
requirement that every page of a contract be signed for it to be
enforceable against the signatory.").
Emmanuel also cannot succeed in arguing that she was not
provided with "reasonable notice" of the arbitration provision
because she chose not to review it despite having had an adequate
opportunity to do so. Kauders makes clear that a party may be
"bound by [the] terms of [a] contract regardless of whether [the]
party actually read [the] terms." 159 N.E.3d at 1049 (citing
Miller v. Cotter, 863 N.E.2d 537, 545 (Mass. 2007)).
Insofar as Emmanuel contends that, per Kauders, she did
not receive reasonable notice of the mandatory arbitration
provision due to the "nature" or the "size" of the online
"transaction" at issue, id. at 1049-50, we also cannot agree. The
context of the "transaction" here is very different from the one
in Kauders, which concerned whether a passenger using a ride-
sharing service was bound by an online agreement. Id. at 1038-
39.
There, in finding no agreement to have been formed, the
SJC held that a user who is "signing up via an app for ride
- 18 - services," id. at 1051, might "reasonably believe he or she is
simply signing up for a service without understanding that he or
she is entering into a significant contractual relationship," id.
at 1054. But, Emmanuel did not simply download the app and open
it. She did so only after going through various screening
processes conducted by Handy, including completing an online
application, participating in a telephone interview, undergoing a
background check, and attending an in-person training session.
Moreover, Emmanuel was able to download the Handy app
that set forth the Agreement only after receiving a PIN that Handy
provided to her after she completed those steps in the process of
applying to find jobs through the company. And, unlike the
situation in Kauders, where the online interface made it possible
for a user to sign up without seeing any terms at all and where
the app's design made it easy to overlook the fact that creating
an account would simultaneously bind the user to a contract, id.
at 1051-54, Emmanuel was explicitly required to "[a]ccept" an
agreement displayed in the app that informed her in its first
sentence that it contained terms that governed the services she
provided through Handy.
Thus, we conclude that, under Kauders, Emmanuel did have
reasonable notice of the term in the Agreement concerning
arbitration that is at issue on appeal. Accordingly, we reject
her argument that the District Court erred in granting Handy's
- 19 - motion to dismiss and compel arbitration, because we conclude that,
contrary to her contention otherwise, she did enter into a contract
with Handy in which she agreed to arbitrate the state and federal
claims that she now brings.
III.
Emmanuel also contends that the District Court erred in
dismissing her suit because the term in the Agreement concerning
arbitration cannot be enforced due to the doctrine of
unconscionability. Emmanuel premises her argument on the doctrine
of unconscionability under Massachusetts law.
As a general matter, Massachusetts law requires a party
invoking that doctrine to establish "both substantive
unconscionability (that the terms are oppressive to one party) and
procedural unconscionability (that the circumstances surrounding
the formation of the contract show that the aggrieved party had no
meaningful choice and was subject to unfair surprise)." Machado v.
System4 LLC, 28 N.E.3d 401, 414 (Mass. 2015) (quoting Storie v.
Household Int'l, Inc., No. 03-40268-FDS, 2005 WL 3728718, at *9
(D. Mass. Sept. 22, 2005)). Thus, Emmanuel must identify the
specific term or terms in the Agreement that are substantively
unconscionable.
The only term in the Agreement that Emmanuel identifies
as being substantively unconscionable is the "unilateral
- 20 - modification clause" in the Agreement.8 That term purports to
permit Handy to modify the terms of the Agreement without notifying
Emmanuel or requiring her to accept the changes.
But, "as a matter of substantive federal arbitration
law," unless the party seeking to invalidate the arbitration
agreement brings a "challenge . . . to the arbitration provision
itself, the issue of the contract's validity is considered by the
arbitrator in the first instance." Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 445-46 (2006). "Another way to frame this
analysis is to say . . . that 'an arbitration provision is
severable from the remainder of the contract.'" Farnsworth v.
Towboat Nantucket Sound, Inc., 790 F.3d 90, 97 (1st Cir. 2015)
(quoting Buckeye Check Cashing, 546 U.S. at 445).
Thus, because the "basis" of Emmanuel's
unconscionability challenge is not "directed specifically to the
agreement to arbitrate," Rent-a-Ctr., W., Inc. v. Jackson, 561
U.S. 63, 71 (2010), we may not address it. After all, Emmanuel
does not argue that the arbitration provision in the Agreement has
8 Emmanuel argued before the District Court that the Agreement's requirement that workers pay significant fees to arbitrate their claims was substantively unconscionable. The District Court rejected that argument in reliance on Bekele, 918 F.3d at 188-89, because here Handy has agreed to pay all of Emmanuel's arbitration fees (as Lyft did there). As Emmanuel's only contention in her opening brief is that the Bekele panel erred, we do not address this argument. See AER Advisors, Inc. v. Fidelity Brokerage Servs., LLC, 921 F.3d 282, 293 (1st Cir. 2019).
- 21 - been revised in a meaningful way since she entered into the
Agreement on May 14, 2015, such that the modification clause is
implicated in the dispute over whether her claim should be subject
to arbitration. Nor does she contend that the unconscionability
of the modification clause so infects the Agreement that severing
that clause would effectively rewrite the bargained-for exchange
as to arbitration. See Booker v. Robert Half Int'l, Inc., 413
F.3d 77, 84-85 (D.C. Cir. 2005).
Accordingly, because Emmanuel's unconscionability
contention is not a "challenge[] to the validity of the specific
agreement to resolve the dispute through arbitration" but instead
is a "challenge[] to the validity of an entire contract which
contains an arbitration clause," Farnsworth, 790 F.3d at 96, it
must be "considered by the arbitrator in the first instance," id.
at 97 (quoting Buckeye Check Cashing, 546 U.S. at 445-46).9 For
this reason, her unconscionability-based challenge to the ruling
below fails.
9 Handy does also contend that the Agreement contains a delegation clause and thus that the severability issue itself is for the arbitrator. But, as Handy raises this issue for the first time on appeal, we do not consider it. See In re Curran, 855 F.3d at 27 n.4.
- 22 - IV.
For the reasons set forth above, we affirm the District
Court's order compelling arbitration and dismissing Emmanuel's
putative class complaint.
- 23 -