Morales Posada v. Cultural Care, Inc.

141 F.4th 301

• Court: Court of Appeals for the First Circuit
• Decided: June 18, 2025
• Docket: 24-1248
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1248

KAREN MORALES-POSADA, individually and on behalf of all others similarly situated, AMANDA SARMENTO, individually and on behalf of all others similarly situated, FERREIRA GUIMARAES, individually and on behalf of all others similarly situated, WILLIANA ROCHA, individually and on behalf of all others similarly situated, SARA BARRIENTOS, individually and on behalf of all others similarly situated

Plaintiffs, Appellees,

v.

CULTURAL CARE, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

Alex H. Loomis, with whom William B. Adams, Harvey J. Wolkoff, Aliki Sofis, Alexander S. del Nido, and Quinn Emanuel Urquhart & Sullivan, LLP, were on brief, for appellant. David H. Seligman, with whom Towards Justice, Peter Rukin, Rukin, Hyland & Riggin LLP, Matthew C. Helland, and Nichols Kaster, LLP, were on brief, for appellees. June 18, 2025 BARRON, Chief Judge. May a party who is not a signatory

to a contract invoke its arbitration provisions to compel the

arbitration of claims brought by a party who is? We conclude that

the answer in this case is no. We thus affirm the denial of the

motion to compel arbitration that is at issue in this appeal.

I.

The parties have already been before us once on appeal.

See Morales Posada v. Cultural Care, Inc., 66 F.4th 348 (1st Cir.

2023). We therefore recite the travel of the case only briefly.

Cultural Care, Inc. is a Massachusetts company that

places foreign nationals as au pairs with host families throughout

the United States. It is a designated "sponsor" of the U.S.

Department of State's au pair exchange program. See ASSE Int'l,

Inc. v. Kerry, 803 F.3d 1059, 1064 (9th Cir. 2015); 22 C.F.R.

§ 62.31.

The four named plaintiffs are foreign nationals who

participated in the au pair program as au pairs. They filed the

operative complaint -- which is the Second Amended Complaint -- in

February 2021. They did so in the United States District Court

for the District of Massachusetts on behalf of themselves and

others in their asserted class, all of whom are also foreign

nationals who participated in the au pair program as au pairs.

The complaint alleges that Cultural Care violated the

plaintiffs' rights under the Fair Labor Standards Act (FLSA) and

- 3 - various state wage and hour laws by failing to pay them legal wages

for their work as au pairs. It also alleges violations of state

deceptive trade practices laws.

Cultural Care moved to dismiss the complaint. The

grounds included that Cultural Care was entitled to derivative

sovereign immunity under Yearsley v. W.A. Ross Construction

Company, 309 U.S. 18 (1940), due to its status as a State

Department-designated sponsor of the au pair exchange program.

The District Court denied in part the motion to dismiss, including

the asserted Yearsley defense.

Cultural Care filed an interlocutory appeal. It cited

the collateral order doctrine as the basis for our exercising

appellate jurisdiction to review the denial of its motion to

dismiss with respect to the Yearsley issue. Morales Posada, 66

F.4th at 350. It also urged us to exercise pendent appellate

jurisdiction over the other grounds it had set forth for dismissing

the plaintiffs' claims. Id.

After hearing oral argument and soliciting the views of

the State Department as amicus curiae, we affirmed the District

Court's denial in part of Cultural Care's motion to dismiss. Id.

at 364. We reasoned that Cultural Care had not established that

it was entitled to protection under Yearsley at that stage of the

litigation. Id. at 363. We also declined to exercise pendent

- 4 - appellate jurisdiction over the remainder of the appeal. Id. at

364.

After mandate issued and the case returned to the

District Court, Cultural Care filed its answer to the plaintiffs'

operative complaint on July 7, 2023. It asserted as one of its

defenses that the plaintiffs' "claims and purported class action

are barred by their arbitration agreements." Thereafter, on August

18, 2023, Cultural Care filed a motion to compel arbitration of

the plaintiffs' claims pursuant to the Federal Arbitration Act

(FAA), 9 U.S.C. § 1 et seq., and the Convention on the Recognition

and Enforcement of Foreign Arbitral Awards ("New York

Convention"), art. II, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S.

3; see also 9 U.S.C §§ 201-208 (implementing the New York

Convention).

The parties stipulated to and conducted limited

discovery. The plaintiffs opposed Cultural Care's motion to compel

arbitration on various grounds. On February 28, 2024, the District

Court denied the motion.

Cultural Care premised the motion first on a contract

that it asserted all au pairs had signed with it beginning in

January 2023 ("2023 Contract") and which contained an agreement to

arbitrate any disputes. The District Court denied Cultural Care's

motion without prejudice insofar as it rested on this contract.

- 5 - The District Court explained that Cultural Care had

produced no evidence that the contract bound any of the named

plaintiffs, all of whom began their employment well prior to 2023.

It also noted that Cultural Care had not identified any opt-in

plaintiff who had signed the 2023 Contract. Cultural Care has not

appealed this decision.

Cultural Care independently premised its motion on a

separate contract that all au pairs selected for sponsorship

between January 2018 and December 2022 -- including the named

plaintiffs1 -- had assertedly signed with a company called

International Care Ltd. (ICL). ICL is a Swiss company that is

"separate and distinct" from Cultural Care and that

"provided . . . recruiting, screening, and other pre-departure

services" in connection with the au pair program.2 We will refer

1 In the District Court proceedings, the plaintiffs disputed whether Cultural Care had met its burden to show that the named plaintiffs each signed the ICL contract. The District Court "assume[d]," for the purposes of resolving Cultural Care's motion, that Cultural Care had met this burden, because the plaintiffs had "not offered any contrary evidence or evidence that th[e] [signed contracts Cultural Care produced were] not authentic." We need not address this issue because we affirm on the grounds relied on by the District Court. 2 Because ICL also uses "Cultural Care" as its registered business name, the ICL Contract refers collectively to ICL and its "successors and assignees" as "CC." No party contends, however, that any of the references to "CC" or to "Cultural Care" in the ICL Contract are to Cultural Care, Inc., the Massachusetts company that is a party to this case, rather than to ICL, the distinct Swiss company that is a signatory to the contract. For clarity, we refer to ICL only by its legal name, ICL.

- 6 - to this contract, which figures prominently in this appeal, as the

ICL Contract.

The ICL Contract sets forth various terms and conditions

of the au pairs' participation in the au pair program. It also

includes a provision setting forth an agreement to arbitrate

disputes that Cultural Care argues it is entitled to enforce in

this case. That provision states:

In the event of any claim, dispute, or proceeding arising out of the relationship of me and [ICL], or any claim which in contract, tort, or otherwise at law or in equity arises between the parties, whether or not related to this Agreement, the parties submit and consent to the exclusive jurisdiction and venue of the arbitrational tribunals of Switzerland.

The District Court determined that Cultural Care could

not compel arbitration in reliance on this agreement. It did so

on two separate grounds.

First, the District Court concluded that Cultural Care

had waived any right to compel arbitration because it had

"'substantially invoked' the litigation machinery in this case"

(quoting FPE Found. v. Cohen, 801 F.3d 25, 29 (1st Cir. 2015)).

The District Court emphasized that Cultural Care had "fully

litigated" a motion to dismiss that reached the merits of the

plaintiffs' claims and that it had even obtained interlocutory

review of that motion, "appeal[ing] to the First Circuit to address

not only the immunity question but also [its] 12(b)(6) arguments,"

- 7 - all the while making no mention of arbitration. The District Court

also pointed to Cultural Care's opposition to conditional class

certification and to its motion to strike the consents to sue as

further evidence of its "'substantial[] invo[cation]' [of] the

litigation machinery in this case" (quoting Cohen, 801 F.3d at

29).

Second, the District Court concluded that, even if

Cultural Care had not waived its right to compel arbitration, it

still could not enforce the ICL Contract's arbitration agreement.

It rejected Cultural Care's contention that the ICL Contract

contained an agreement delegating questions concerning

arbitrability to the arbitrator to decide. It then held that, as

a nonsignatory to the ICL Contract, Cultural Care could not enforce

the arbitration agreement in that contract under either of the

theories that Cultural Care advanced, which were premised,

respectively, on its claimed third-party-beneficiary status and

the doctrine of equitable estoppel.

The District Court concluded that Cultural Care could

not enforce the arbitration agreement as a third-party beneficiary

because the contract did not demonstrate with "special clarity"

that the contracting parties intended for Cultural Care to benefit

from the arbitration agreement. See Hogan v. SPAR Grp., Inc., 914

F.3d 34, 39 (1st Cir. 2019) (quoting McCarthy v. Azure, 22 F.3d

351, 362 (1st Cir. 1994)). It separately concluded that Cultural

- 8 - Care could not enforce the arbitration agreement based on the

doctrine of equitable estoppel because, contrary to Cultural

Care's assertions, none of the plaintiffs' claims depended on

anything contained in the ICL Contract.

Cultural Care timely appealed.

II.

We review de novo a district court's order resolving a

party's motion to compel arbitration. Barbosa v. Midland Credit

Mgmt., Inc., 981 F.3d 82, 86 (1st Cir. 2020). Predicate questions

of fact are subject to clear error review. Menorah Ins. Co. v.

INX Reinsurance Corp., 72 F.3d 218, 220 (1st Cir. 1995).

The parties dispute what law applies to the questions at

issue in this appeal. Cultural Care contends that it is the "law

of the contract -- here, Swiss law -- [that] determines whether

[the] claims are arbitrable" (citation omitted). The plaintiffs

argue that "Cultural Care must establish that it has the authority

to compel arbitration as a nonsignatory under both federal common

law and Swiss law."

We need not resolve this question. Cultural Care

contends that "there is . . . no relevant difference between Swiss

law and federal common law," and we conclude that Cultural Care

cannot prevail under the latter. See OneBeacon Ins. Co. v.

Georgia-Pac. Corp., 474 F.3d 6, 9 (1st Cir. 2007) ("bypass[ing]"

choice-of-law questions as there was no "significant difference in

- 9 - the laws of the relevant states"); see also Sourcing Unlimited,

Inc. v. Asimco Int'l, Inc., 526 F.3d 38, 46 (1st Cir. 2008) ("In

the absence of any contention from the parties to the contrary, we

apply federal common law to resolve the issue[] [of nonsignatory

enforcement of an arbitration clause]."); InterGen N.V. v. Grina,

344 F.3d 134, 143 (1st Cir. 2003) (applying federal common law

under the New York Convention). Nor, as we will explain, do any

of Cultural Care's arguments on appeal pertaining to Swiss law

require a different result.

III.

Cultural Care challenges the District Court's denial of

its motion to compel arbitration on various grounds.3 Many of them

pertain to the ICL Contract. Before advancing these

ICL-contract-related arguments, however, Cultural Care devotes

several paragraphs of its opening brief to addressing the

application of the New York Convention to this case. We thus start

with Cultural Care's discussion of that treaty.

Article II of the New York Convention addresses the

recognition and enforcement of international arbitration

3 Because we conclude, for the reasons discussed below, that Cultural Care has not shown that it is entitled to enforce the arbitration agreement as a nonsignatory, we need not reach the District Court's alternative conclusion that Cultural Care waived any arbitration rights it might have had through its litigation conduct. For the same reason, we need not address the plaintiffs' contention that the ICL Contract is unenforceable as a matter of public policy.

- 10 - agreements. As we have previously explained, the "command to

courts [contained in Article II] to enforce [such] arbitration

agreements is self-executing." Green Enters., LLC v. Hiscox

Syndicates Ltd., 68 F.4th 662, 672 (1st Cir. 2023). Congress has

also partially implemented Article II through its enactment of

Chapter 2 of the FAA. See GE Energy Power Conversion France SAS,

Corp. v. Outokumpu Stainless USA, LLC, 590 U.S. 432, 438-39 (2020).

Cultural Care argues that the arbitration agreement that

it seeks to enforce is covered by Article II. It further contends

that, under what it terms the "very limited" inquiry that the

Convention permits, the District Court had "no . . . discretion"

to deny its motion.

The Supreme Court of the United States in GE Energy

explained that the New York Convention does not prohibit

contracting states from applying "more generous" doctrines

regarding nonsignatory enforcement under domestic law -- there,

the FAA. Id. at 440. But, notably, GE Energy did not appear to

definitively resolve how Article II itself applies in such

circumstances, given that, by its terms, the Convention is "silent

on the issue of nonsignatory enforcement." Id. at 439-440, 445.

We see no need to determine whether and to what extent

the Convention governs in this case. The plaintiffs do not appear

to dispute Cultural Care's premise that the New York Convention

applies. In addition, Cultural Care at no point contends that any

- 11 - of its arguments on appeal turn on the application of law specific

to the New York Convention -- as opposed to the FAA. Thus, Cultural

Care does not contend that its position would prevail in a New

York Convention case even if it would fail under more general

principles of federal arbitration law.

Accordingly, we assume (favorably to Cultural Care) that

the New York Convention does apply. We therefore move on to

address Cultural Care's arguments as to why, given the arbitration

provisions in the ICL Contract, the District Court was obligated

to grant its motion to compel arbitration of the plaintiffs'

claims.

IV.

Cultural Care contends that the District Court erred in

denying its motion to compel arbitration in part because the

District Court wrongly ruled under applicable federal and Swiss

law that it was not entitled to invoke the arbitration agreement

in the ICL Contract as a third-party beneficiary. But Cultural

Care also advances an antecedent argument. It contends that the

District Court wrongly rejected its argument that the

determination of whether Cultural Care can compel arbitration of

the plaintiffs' claims must itself be decided by an arbitrator

because the ICL Contract contains an agreement to delegate to the

arbitral tribunal disputes over arbitrability. We begin with this

contention.

- 12 - A.

As a threshold matter, the parties dispute whether the

language that Cultural Care points to in the ICL Contract

constitutes an agreement to delegate disputes over arbitrability

to an arbitrator. But we need not resolve that dispute. The

plaintiffs correctly point out that even if that language does

constitute a delegation provision, Cultural Care "would still need

to establish its right to enforce the delegation provision as a

nonsignatory" to the ICL Contract. And, as we will next explain,

we agree with the plaintiffs that Cultural Care has not done so.

"A delegation clause is merely a specialized type of

arbitration agreement." New Prime, Inc. v. Oliveira, 586 U.S.

105, 112 (2019). Through it, parties "agree to allow the

arbitrator to decide both whether a particular dispute is

arbitrable as well as the merits of the dispute." Apollo Computer,

Inc. v. Berg, 886 F.2d 469, 473 (1st Cir. 1989). When a contract

contains a "clear and unmistakable" delegation by the parties of

the question of arbitrability, "the courts must respect the

parties' decision as embodied in the contract," and leave to the

arbitrator to decide whether "the arbitration agreement applies to

[the] particular dispute" between them. Bossé v. New York Life

Ins., 992 F.3d 20, 27-28 (1st Cir. 2021) (quoting Henry Schein,

Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65, 68 (2019));

see also Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 11 (1st Cir.

- 13 - 2009) ("[T]he validity of an arbitration clause is itself a matter

for the arbitrator where the agreement so provides.").

Cultural Care appears to be contending that we must

enforce the claimed delegation agreement in the ICL Contract as we

would enforce a delegation agreement in an ordinary case involving

both of the parties to the contract containing that agreement.

But the ICL Contract embodies no decision reached between the only

parties to this suit -- Cultural Care and the plaintiffs. Thus,

Cultural Care's request that we enforce the delegation agreement

in the ICL Contract is not a request that we "respect the parties'

decision as embodied in the contract." Bossé, 992 F.3d at 27

(emphasis added) (quoting Henry Schein, 586 U.S. at 65).

Indeed, as a general rule, contractual agreements bind

only the parties to the agreement and may be enforced only by those

parties. McCarthy, 22 F.3d at 362; see also Grand Wireless, Inc.

v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir. 2014) ("[A]s a

general proposition, a contract cannot bind a non-party."). This

rule holds absent a showing that "traditional principles" of

contract law permit nonsignatory enforcement in a given case. See

Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009) (listing

as such "traditional principles" "assumption, piercing the

corporate veil, alter ego, incorporation by reference, third-party

beneficiary theories, waiver and estoppel" (quoting 21 Williston

on Contracts § 57:19 (4th ed. 2001))). So, in light of "the

- 14 - general rule that a contract does not grant enforceable rights to

nonsignatories," McCarthy, 22 F.3d at 362, Cultural Care may invoke

the asserted delegation clause -- which it devotes many pages to

showing the ICL Contract contains -- only if it can explain how

this general rule is overcome in this case. Yet, Cultural Care

offers no such explanation.

To be sure, Cultural Care does invoke our decision in

Apollo Computer, Inc. v. Berg, 886 F.2d 469. But that precedent

does not aid its cause.

We concluded there that the defendants -- who were not

signatories to the contract, but who were assigned a signatory's

contractual rights -- could compel arbitration under the

contract's delegation clause. Id. at 473. We reasoned that the

arbitration agreement delegated to the arbitrator "decisions about

the arbitrability of disputes" so long as a "prima facie agreement

to arbitrate" existed. Id. Following the parties' lead, we drew

that "prima facie" standard from the arbitral rules incorporated

into that contract. Id. And we further concluded that the

defendants had made such a prima facie showing because they had

been assigned a signatory's rights under the contract, including

the right to compel arbitration. Id.; see also id. at 470

(explaining that a bankruptcy trustee had "assigned Dico's right

to bring claims for damages against Apollo to the defendants").

- 15 - We did not hold in Berg, however, that a party to a

lawsuit may force its opponent to arbitrate threshold issues

regarding the arbitrability of their dispute so long as that

party's opponent is a signatory to some arbitration agreement

containing a delegation provision. We did acknowledge in Berg

that there was some dispute as to whether the "right [to compel

arbitration] was validly assigned to the defendants." Id. at 473.

But we then went on to conclude that, given the prima facie

evidence that an assignment had in fact occurred, the question of

whether the agreement to arbitrate remained valid in light of the

assignment was one for the arbitrator to decide. Id. Accordingly,

we rejected the plaintiff's argument that we should decline to

compel arbitration because no "agreement to arbitrate exist[ed]

between it and the defendants." Id. (emphasis added).

In addition, we did not reject this argument because the

existence of an agreement between the parties to the suit was

irrelevant to the question of delegation. We rejected this

argument because we agreed with the defendants that they had made

a prima facie showing that the contract containing the arbitration

agreement had been assigned to them and thus that they had been

assigned the right to enforce that agreement. Id.

Cultural Care's references to Awuah v. Coverall North

America, Inc., 554 F.3d 7, and Bossé v. New York Life Insurance,

992 F.3d 20, also are of no help to it. Both Awuah and Bossé

- 16 - involved contracts executed between the parties to the suit. Thus,

neither one addresses the issue of nonsignatory enforcement of a

delegation clause.

Cultural Care does argue, as we will soon see, that it

is entitled to enforce the arbitration agreement in the ICL

Contract as a third-party beneficiary. But Cultural Care does not

advance any contention that it enjoys that status with respect to

the claimed delegation agreement itself. It also develops no

argument that the kind of prima facie showing that Berg deemed

sufficient to permit the nonsignatory in that case to enforce the

delegation provision at issue would be sufficient here. Nor has

it developed any argument that it has made such a showing by virtue

of the arguments that it advances regarding the arbitration

agreement itself. And Cultural Care fails to do so even though

the language in the ICL Contract that it contends constitutes the

delegation agreement hardly of its own force suggests that Cultural

Care may enforce that agreement (even assuming, that is, that the

ICL Contract includes an agreement to delegate at all).

As a result, Cultural Care has not made "the type of

serious effort needed on [the] complex issue" of nonsignatory

enforcement of a delegation agreement. Rivera-Corraliza v.

Morales, 794 F.3d 208, 224 (1st Cir. 2015). And "we will not do

[Cultural Care's] work for [it]." Id.; see also Salmon v. Lang,

57 F.4th 296, 325 (1st. Cir. 2022) ("We have frequently emphasized

- 17 - that judges are not obligated to do a party's work for him,

'searching sua sponte for issues that may be lurking in the

penumbra of the motion papers' . . . . [particularly where] 'the

underdeveloped argument raises complexities that defy an easy

answer.'" (quoting Coons v. Indus. Knife Co., Inc., 620 F.3d 38,

44 (1st. Cir. 2010))). We therefore see no basis for concluding

that the District Court erred in declining to send the issue of

arbitrability to the arbitrator to decide.

B.

Cultural Care separately contends that, to the extent

that the question of arbitrability is for the court to decide, the

District Court erred under both federal and Swiss law in ruling

that Cultural Care may not enforce the arbitration agreement that

the ICL Contract contains. It thus contends that we must reverse

the District Court's denial of its motion to compel arbitration

for this reason alone.

In general, Cultural Care agrees, a party seeking to

compel arbitration must show (1) "that a valid agreement to

arbitrate exists"; (2) "that [it is] entitled to invoke the

arbitration clause"; (3) "that the other party is bound by that

clause"; and (4) "that the claim asserted comes within the clause's

scope." InterGen, 344 F.3d at 142. We have cautioned, however,

that, because "[a]rbitration is strictly 'a matter of consent,'"

Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 299

- 18 - (2010) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland

Stanford Junior Univ., 489 U.S. 468, 479 (1989)), courts should be

careful "about forcing arbitration in 'situations in which the

identity of the parties who have agreed to arbitrate is unclear,'"

InterGen, 344 F.3d at 143 (quoting McCarthy, 22 F.3d at 355).

We do not understand Cultural Care to take issue with

this proposition. That said, we agree with Cultural Care that

nonsignatories may invoke arbitration agreements in certain

circumstances. See GE Energy, 590 U.S. at 437. In particular,

traditional principles of contract law permit a contract "to be

enforced by or against nonparties to the contract through . . .

'third-party beneficiary theories,'" Grand Wireless, 748 F.3d at

12 (quoting Arthur Andersen, 556 U.S. at 631), and we agree that

this general rule applies equally to an agreement to arbitrate.

So, we must address Cultural Care's contention that it

may enforce the arbitration agreement in the ICL Contract as a

third-party beneficiary. We are not persuaded.

1.

To make the case for its authority to enforce the

arbitration agreement, Cultural Care relies in part on six

provisions in the ICL Contract, which it says demonstrate its

third-party beneficiary status.

Cultural Care acknowledges that these provisions refer

only to ICL. But it argues that ICL "does not benefit" from them.

- 19 - Cultural Care then goes on to explain that it, as "the actual State

Department designee" that "oversees the au pairs[] . . . in the

United States," is "the only possible intended beneficiary" of

those provisions.

Cultural Care rounds out its case for being a third-party

beneficiary by pointing to a seventh provision in the ICL Contract.

We will refer to that provision, which is set forth in Paragraph

14 of the ICL Contract, as the "Release Clause."

The Release Clause provides that the au pair "release[s]

and forever discharge[s] [ICL] and its affiliates . . . from any

and all claims or causes of action . . . which arise out of

illness, injury, damage or loss of any kind . . . resulting from

or during participation in the [au pair program]." Cultural Care

argues that the Release Clause is "expressly intended for [its]

benefit" because it releases from liability ICL's "affiliates" and

because it is an "affiliate[]" to which that clause refers. It

thus argues that it is a third-party beneficiary "based on this

provision alone."

Cultural Care then goes on to argue that, as a

"third-party beneficiary of a contract containing an arbitration

clause," InterGen, 344 F.3d at 146, it is entitled to invoke the

arbitration agreement contained in that contract. Indeed,

according to Cultural Care, the District Court committed "a

category error" when it "ruled that Cultural Care could not move

- 20 - to compel arbitration because it was not a third-party beneficiary

of 'the arbitration provision' itself," rather than of the contract

as a whole. As support, Cultural Care points to the District

Court's statement that the arbitration agreement "does not even

make an ambiguous reference that could be construed to include

Cultural Care [] as a third-party beneficiary." Cultural Care

contends that this focus on the text of the arbitration agreement

was in error.

Cultural Care acknowledges that the text of the

arbitration agreement is relevant to the separate issue of "whether

the arbitration provision's scope specifically excludes

Plaintiffs' claims against Cultural Care." But, according to

Cultural Care, consideration of the text of the arbitration

agreement is not germane to the third-party-beneficiary question

because other contractual provisions already establish its status

as a third-party beneficiary of the contract.

Thus, Cultural Care contends, the District Court was

wrong to treat the question of its authority to enforce the

arbitration agreement as turning on whether "the arbitration

provision itself was intended to benefit Cultural Care." As we

will next explain, however, Cultural Care's argument on this score

does not hold up under our precedents.

- 21 - 2.

"The 'critical fact' that determines whether a

nonsignatory is a third-party beneficiary is whether the

underlying agreement 'manifest[s] an intent to confer specific

legal rights upon [the nonsignatory].'" Ouadani v. TF Final Mile

LLC, 876 F.3d 31, 39 (1st Cir. 2017) (alterations in original)

(quoting InterGen, 344 F.3d at 147). The showing of a "mere

benefit to [a] nonsignatory resulting from a signatory's exercise

of its contractual rights is not enough." Id. Moreover,

"[b]ecause third-party beneficiary status constitutes an exception

to the general rule that a contract does not grant enforceable

rights to nonsignatories," a party "aspiring to such status" must

demonstrate with "special clarity" that the signatories intended

to confer upon it such a benefit. McCarthy, 22 F.3d at 362; see

also Hogan, 914 F.3d at 38 (explaining that a party seeking to

enforce an agreement to which it is not a signatory "faces a steep

climb").

Cultural Care concedes that this "special clarity"

requirement applies, McCarthy, 22 F.3d at 362, notwithstanding its

contentions about Swiss law and its application here. Cultural

Care also concedes that some of the contractual provisions that it

identifies as showing its third-party-beneficiary status refer not

to it, but to ICL.

- 22 - Cultural Care nonetheless appears to assert that it can

satisfy the "special clarity" test with respect to those six

provisions because ICL "does not benefit" from them at all, making

Cultural Care "the only possible intended beneficiary."4 In

support of this contention, Cultural Care argues that ICL "merely

performs the 'identification, screening, and preparation of

prospective au pairs' before their U.S. arrival." It thus appears

to contend that, for this reason, ICL does not benefit from

contractual provisions that relate to the au pair's actual

participation in the program.

Setting aside the fact that at least one of the

contractual provisions Cultural Care invokes does appear to refer

to pre-departure screening, the bare assertion about ICL's role in

the au pair program is insufficient to show that ICL derives no

benefit from many of the contract's provisions. At a minimum, ICL

would appear to benefit from "identif[ying]" prospective au pairs

willing and able to abide by the specified terms and conditions.

Given the ICL Contract's repeated references to ICL and its express

statement that "[ICL] and the undersigned au pair . . . for good

and valuable consideration . . . agree to the following terms and

4 We see no additional significance in Cultural Care's contention that "[this], no doubt, is why the contract refers to ICL as 'Cultural Care,' and not ICL." As the contract makes clear, "Cultural Care" is simply the registered business name of International Care, Ltd., the Swiss company that Cultural Care does not dispute is an independent and distinct corporate entity.

- 23 - conditions," we simply cannot say, without more, that ICL derives

no benefit from the identified provisions.

We note, too, that even if Cultural Care does predictably

"benefit from [the signatories'] performance of the contract,"

that fact alone does not establish its status as a third-party

beneficiary. McCarthy, 22 F.3d at 362 n.16; see also InterGen,

344 F.3d at 147 ("[A] benefitting third party is not necessarily

a third-party beneficiary."). For this reason as well, Cultural

Care fails to persuade us that these six provisions demonstrate

its third-party-beneficiary status.

3.

There is a further problem with Cultural Care's argument

that it is entitled to enforce the arbitration agreement in the

ICL Contract as a third-party beneficiary. Even if Cultural Care

could show that it is a third-party beneficiary of any or all of

the six provisions addressed above, we still could not conclude,

based on the arguments Cultural Care advances, that it is entitled

to enforce the signatories' arbitration agreement. And that is

also true with respect to the one other contractual provision that

Cultural Care invokes that arguably does refer to Cultural Care

through its use of the word "affiliates": the Release Clause.5

5 Because of these defects in Cultural Care's argument, we need not resolve whether the reference to "affiliates" in the Release Clause includes Cultural Care or whether Cultural Care is,

- 24 - For starters, we note that, at times, Cultural Care

appears to argue that so long as it is a third-party beneficiary

of any provision in the ICL Contract, it is necessarily a

third-party beneficiary of every provision in the ICL Contract and

so, for that reason, the agreement to arbitrate itself. We know

of no authority, however, that indicates that a third-party

beneficiary of one contractual provision is necessarily a

third-party beneficiary of (and thus entitled to enforce) any

provision contained in the same contract. Nor does Cultural Care

identify any such authority. Thus, we are not persuaded by this

argument -- if it is the one that Cultural Care means to make -- for

overturning the District Court's ruling.

We do acknowledge that Cultural Care may also mean to be

making the distinct argument that, by virtue of the provisions

that it identifies and its claimed relationship to them, it is a

third-party beneficiary of the ICL Contract as a whole. It then

appears to contend that, in consequence, it may enforce the

arbitration agreement contained in that contract. But, if this is

the argument that Cultural Care means to be making, for the reasons

we will next explain, we also are unpersuaded.

by virtue of that reference, a third-party beneficiary of that agreement.

- 25 - a.

As an initial matter, Cultural Care fails to cite to any

case, as a matter of U.S. law, that supports the proposition that

its claimed third-party relationship to the identified provisions

of the ICL Contract makes it a third-party beneficiary "of [the]

contract" as a whole. With respect to its contention that it is

"a 'third-party beneficiary' based on th[e] [Release Clause]

alone," for example, Cultural Care cites only to a single

out-of-circuit case. See Allen v. The Katz Agency, Inc., 677 F.2d

193 (2d Cir. 1982). But that case says nothing about a third-party

beneficiary of a release clause being a third-party beneficiary of

a contract as a whole (nor, for that matter, does that case say

anything about arbitration). See id. at 197 (concluding that the

plaintiff was not retroactively entitled to additional

compensation under his former employer's updated Employee Stock

Ownership Plan because "[t]he Plan, though not specifically named,

was effectively a third-party beneficiary of the release

[contained] in [the] termination agreement" that the plaintiff

executed with his employer).

Cultural Care's claim to be a third-party beneficiary

"of the contract" is no more developed with respect to the six

other contract provisions that it identifies. The only case that

Cultural Care cites in that portion of its brief is Grand Wireless,

Inc. v. Verizon Wireless, Inc., 748 F.3d 1. But our decision in

- 26 - Grand Wireless, which dealt with an agency relationship and not a

third-party beneficiary relationship, id. at 9-11, is wholly

inapposite.

There, we were simply applying a "uniformly" adopted

"federal rule" that "an agent is entitled to the protection of her

principal's arbitration clause when the claims against her are

based on her conduct as an agent." Id. at 11. Because that agency

theory is not applicable here, we cannot say based on that

precedent that Cultural Care's arguments are sufficient to

persuade us that it is a third-party beneficiary "of the [ICL]

[C]ontract" as a whole.

Cultural Care's argument faces a second problem.

Contrary to its contentions, our precedent makes clear that the

relevant question in determining whether a nonsignatory can

enforce an arbitration agreement under a third-party-beneficiary

theory is whether the signatories intended to "confer [on that

third party] arbitration rights," not just any right under the

contract. Hogan, 914 F.3d at 40 (emphasis added); see also id.

(concluding that the defendant "was not an intended third-party

beneficiary of the signatories' agreement to arbitrate"); Mowbray

v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 795 F.2d 1111,

1117 (1st Cir. 1986) (rejecting nonsignatories' bid to compel

arbitration based on the conclusion that the nonsignatories were

- 27 - "not intended beneficiaries of the [contract's] arbitration

clause"). Accordingly, we have explained that "even if [a

nonsignatory] c[an] show an intent of the [contracting] parties to

confer upon it some benefit unrelated to arbitration, the language

of the arbitration clause would still be dispositive" as to their

authority to enforce that provision. Hogan, 914 F.3d at 40.

Of course, other contractual provisions may bear on, or

provide evidence of, the parties' intent with respect to

arbitration. But, even still, the relevant question for the court

remains whether the nonsignatory is an "intended third-party

beneficiary of the signatories' agreement to arbitrate." Id.

Cultural Care does not cite any authorities that purport

to displace this rule. Indeed, if anything, the only authorities

that Cultural Care does cite in support of its position appear to

undermine it.

For example, Cultural Care cites to the Restatement

(Third) of the United States Law of International Commercial and

Investor-State Arbitration § 2.3 (A.L.I. 2023). But, immediately

following the portion that Cultural Care quotes, the Restatement

expressly provides that "an arbitration agreement may apply to a

third-party beneficiary only in one of two circumstances," id.

§ 2.3 cmt. f (emphasis added), neither of which approximates

Cultural Care's position.

- 28 - The first circumstance, consistent with Hogan, is when

a court "find[s] that the signatories intended to confer on the

third party a right to invoke the arbitration agreement." Id.

(emphasis added); see also id. § 2.3 note f (explaining that "the

essential element is the parties' intention, specifically whether

the parties intended to grant rights under the arbitration

agreement to a third party" (emphasis added)). The second

circumstance -- not relevant here -- is when a "third-party

beneficiary of a contract . . . seeks to enforce the contract"

against a signatory or "invokes provisions of it," and, in doing

so, may be bound by an arbitration agreement contained within it.

Id. § 2.3 cmt. f.

Cultural Care does also cite to our decision in InterGen,

344 F.3d 134, as if that precedent supports its contention that a

nonsignatory may enforce an arbitration agreement so long as it is

a third-party beneficiary "of the contract." But we do not see

how InterGen does so.

The issue in InterGen was whether the defendants could

compel InterGen, a nonsignatory to the contracts containing the

arbitration agreements, to arbitrate under those agreements. Id.

at 146. We explained that a "threshold question" was "whether

InterGen [wa]s a third-party beneficiary of the purchase orders"

at issue. Id. We determined -- after looking to the text of the

- 29 - arbitration agreements contained in those contracts -- that

"[t]here [were] no third-party rights afforded to InterGen." Id.

InterGen did not hold, however, that the relevant issue

for a nonsignatory seeking to enforce an arbitration agreement is

something other than whether the signatories intended that it

benefit from that agreement. And, to the extent that our

references to the "purchase orders" in InterGen might have been

ambiguous, our later decision in Hogan was clear that the relevant

question remains whether the parties intended to confer the right

to enforce the arbitration agreement on the third party.

For similar reasons, Cultural Care's appeal to our

decision in Ouadani, 876 F.3d 31, is unavailing. True, we stated

in that case that the nonsignatory had "fail[ed] to identify any

language in the Agreement that c[ould] be read to provide [it]

with 'specific legal rights.'" Id. at 39 (emphasis added). But

that observation demonstrates no more than that a contract that

evinces no intent to benefit a third party cannot be enforced by

that party. Ouadani never addressed, in circumstances in which a

contract does evince some intent "to confer upon [a third party]

some benefit unrelated to arbitration," Hogan, 914 F.3d at 40,

whether that party is necessarily a third-party beneficiary of the

agreement to arbitrate. Hogan, however, made clear that the

arbitration agreement itself is "dispositive" on this question.

- 30 - Id. We are therefore unpersuaded that the District Court erred by

looking to the text of the arbitration agreement itself.

4.

In concluding that the District Court did not err, we

have relied principally on the federal law cases that Cultural

Care cites in its briefing, in light of its contention that "Swiss

law is equivalent to federal common law for purposes of this case."

Throughout its briefing, however, Cultural Care also cites to its

expert's declaration regarding Swiss law as further support for

its position.

Given Cultural Care's express concession that Swiss law

is materially indistinguishable from federal law, we need not

separately analyze its arguments as a matter of Swiss law.

Nevertheless, we do note that our review of the portions of the

expert's declaration on Swiss law that Cultural Care cites in its

briefing does not persuade us that Cultural Care has shown that

Swiss law, unlike federal law, requires the outcome that Cultural

Care favors.

Much of the expert's declaration is dedicated to showing

that a third-party beneficiary does not need to be expressly named

in the contract, a consideration that is not inconsistent with our

analysis. In addition, the specific portions of the expert's

declaration that Cultural Care highlights on appeal as support for

its claim that it, not ICL, is the only possible beneficiary of

- 31 - the ICL Contract, do not purport to turn on anything specific to

Swiss law. To the contrary, they merely highlight certain features

of this case that do not suffice to persuade us either that ICL

derives no benefit from the ICL Contract or that Cultural Care is

a third-party beneficiary of the contract in consequence of ICL

deriving no benefit from the provisions in question.

Additionally, while Cultural Care's expert does opine

that under Swiss law Cultural Care "is considered a third-party

beneficiary with a right to enforce the arbitration clause" based

on the rights afforded to Cultural Care by the Release Clause, the

declaration does not identify any Swiss law precedent supporting

that conclusion. The only case that the expert does identify that

relates to nonsignatory enforcement based on a contractual release

clause does not concern arbitration and therefore does not address

whether such a nonsignatory would be entitled to enforce the

parties' arbitration agreement.

Finally, Cultural Care cites to a decision by the Swiss

Federal Supreme Court. But that case addresses a nonsignatory who

brings a claim under the contract, and therefore does not reach

the circumstances here. See Bundesgericht [BGer] [Federal Supreme

Court] October 6, 2016, 4A_310/2016, ¶ 3.1.1 (Switz.).

Thus, insofar as Cultural Care means to suggest that

Swiss law supports its position even if federal law does

not -- notwithstanding its assertion that "Swiss law is equivalent

- 32 - to federal common law for purposes of this case" -- it has not

demonstrated that Swiss law does so. And, as we have explained,

federal law does not itself provide such support.

5.

Cultural Care does further argue that "[a]ffirming the

district court's order [regarding Cultural Care's failure to

establish third-party-beneficiary status] would improperly

discriminate against arbitration." That is so, it contends,

because arbitration agreements are merely "a specialized kind of

forum-selection clause." Scherk v. Alberto-Culver Co., 417 U.S.

506, 519 (1974).

Cultural Care goes on to contend that "'non-signatories

may be bound by a forum-selection clause if they are intended

third-party beneficiaries of the contract,' not the forum

selection clause itself" (quoting In re McGraw-Hill Glob. Educ.

Holdings LLC, 909 F.3d 48, 59 (3d Cir. 2018)). It does not,

however, develop this argument beyond a single citation to In re

McGraw-Hill Global Education Holdings LLC, 909 F.3d 48, an

out-of-circuit case. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (explaining that an undeveloped argument is

waived). And, in any event, McGraw Hill does not support this

asserted ground for overturning the District Court's decision.

The court there declined to enforce the forum-selection clause,

and, in doing so, specifically found "compelling" the fact that

- 33 - the contract "d[id] not identify any third party in the[] choice

of forum provisions." McGraw-Hill, 909 F.3d at 62. We therefore

do not see how treating the text of an arbitration agreement as

relevant to the question of its enforcement by a third party would

improperly discriminate against arbitration.

6.

Because Cultural Care fails to persuade us that the

District Court was wrong to ask whether the signatories to the ICL

Contract intended to confer on it the right to compel arbitration,

we must affirm the District Court's conclusion, based on its

resolution of that question, that Cultural Care is not entitled to

compel arbitration. That is so because Cultural Care makes no

argument that, if that were the relevant question, the District

Court would still have been wrong to conclude that the contract

does not demonstrate with the necessary "special clarity" that

Cultural Care is an "intended third-party beneficiary of the

signatories' agreement to arbitrate." Hogan, 914 F.3d at 39-40.

In that regard, we note that, in objecting to the

District Court's analysis of the third-party-beneficiary issue,

Cultural Care raises no objection to the District Court's analysis

of the arbitration provision itself or what the language of that

provision demonstrates regarding the signatories' intent. The

only argument that Cultural Care does advance concerning the text

- 34 - of the arbitration agreement is that the plaintiffs' claims fall

within its scope.

Even Cultural Care acknowledges, however, that the

question of whether a particular dispute falls within the scope of

an arbitration agreement is distinct from the question of whether

a particular party is entitled to invoke that agreement. See

InterGen, 344 F.3d at 143. And, significantly, the burdens to

make these showings are distinct, as well.

A nonsignatory "faces a steep climb" to show that it may

enforce an agreement to which it is not a party, Hogan, 914 F.3d

at 38, and must, as we have noted, make that showing with "special

clarity," id. at 39 (quoting McCarthy, 22 F.3d at 362). By

contrast, "ambiguities as to the scope of [an] arbitration

clause . . . [are] resolved in favor of arbitration." Volt, 489

U.S. at 476.

Thus, by advancing arguments about how to construe the

arbitration agreement as if the issue of its

third-party-beneficiary status is properly treated as one that

concerns the agreement's scope, Cultural Care assumes the

existence of a "policy favoring arbitration." Hogan, 914 F.3d at

38 (quoting McCarthy, 22 F.3d at 355). But application of such a

policy "presumes proof of a preexisting agreement to arbitrate

disputes arising between the protagonists." Id. (quoting

McCarthy, 22 F.3d at 355). In the absence of such an agreement

- 35 - between the protagonists here, however, Cultural Care must

demonstrate with "special clarity" that the signatories to the ICL

contract intended to confer upon it the authority to enforce the

parties' arbitration agreement. Yet Cultural Care does not attempt

to meet this burden while treating the language of the arbitration

agreement as being relevant to the question.

Moreover, given the different standard applicable to

evaluation of the arbitration agreement's scope, we cannot

conclude from Cultural Care's arguments that it could make the

showing necessary here. The District Court explained that the

arbitration agreement "does not even make an ambiguous reference"

to Cultural Care. It then also emphasized, pointing to our

analysis of a similar arbitration agreement in Hogan, that although

some provisions in the ICL Contract do reference "affiliates" and

"staff in the United States," the arbitration agreement notably

contains no such reference. Instead, the arbitration agreement

mentions only the "parties" and ICL's successors and assignees,

none of which include Cultural Care. See Hogan, 914 F.3d at 40

(emphasizing the fact that the contract "references SBS's

'customers' in other sections, yet omits that reference in the

arbitration clause" as evidence that the parties did not intend to

confer on the defendant, as a customer of SBS, the right to compel

arbitration).

- 36 - Indeed, our cases have consistently relied on the

absence of a reference to an otherwise identified third party in

a contract's arbitration provision as evidence that the

signatories did not intend to confer arbitration rights on that

third party. See, e.g., Mowbray, 795 F.2d at 1118 ("[B]ecause the

drafters specifically included the introducing firm in certain

provisions, and because the introducing firm was not included in

the arbitration clause, we believe the reasonable inference to be

that the parties did not intend defendants-appellees, the

introducing firm, to be a beneficiary of the arbitration clause.");

Cortés-Ramos v. Martin-Morales, 894 F.3d 55, 60 (1st Cir. 2018)

(relying on the reasoning from Mowbray to conclude that the

defendant "was not an intended third-party beneficiary of the

parties' agreement to arbitrate"). Cultural Care's failure to

provide any explanation as to why -- setting aside, of course, the

arguments already addressed above that we find unpersuasive -- the

contract nonetheless evinces with "special clarity" the

signatories' intent to confer upon Cultural Care arbitration

rights is thus dispositive. Accordingly, we conclude that Cultural

Care has not made the showing necessary to demonstrate its

entitlement to compel arbitration as a third-party beneficiary of

the arbitration agreement in the ICL Contract.

- 37 - V.

Cultural Care alternatively argues that it is entitled

to enforce the arbitration agreement under the doctrine of

equitable estoppel. See GE Energy, 590 U.S. at 445; see also P.R.

Fast Ferries LLC v. SeaTran Marine, LLC, 102 F.4th 538, 549 (1st

Cir. 2024) (discussing estoppel). "Generally, in the arbitration

context, 'equitable estoppel allows a nonsignatory to a written

agreement containing an arbitration clause to compel arbitration

where a signatory to the written agreement must rely on the terms

of that agreement in asserting its claims against the

nonsignatory.'" GE Energy, 590 U.S. at 437 (emphasis added)

(quoting 21 R. Lord, Williston on Contracts 200 (4th ed. 2001));

see also Sourcing Unlimited, 526 F.3d at 47 ("Federal courts 'have

been willing to estop a signatory from avoiding arbitration with

a nonsignatory when the issues the nonsignatory is seeking to

resolve in arbitration are intertwined with the agreement that the

estopped party has signed.'" (emphasis omitted) (quoting InterGen,

344 F.3d at 145)). The purpose of applying equitable estoppel in

such cases is to "preclude[] a party from enjoying the rights and

benefits under a contract while at the same time avoiding its

burdens and obligations." InterGen, 344 F.3d at 145.

In determining whether claims are "sufficiently

intertwined" with a contract containing an arbitration agreement,

P.R. Fast Ferries LLC, 102 F.4th at 550, courts have generally

- 38 - required the claims to be "integrally related to the contract

containing the arbitration clause," id. (quoting Thomson-CSF, S.A.

v. Am. Arb. Ass'n, 64 F.3d 773, 779 (2d Cir. 1995)). We have found

such a relationship to exist where "resolution of the [signatory's]

claims against the nonsignatory 'require[d] reference to and [was]

in part based on the underlying [contract].'" Id. (second and

third alterations in original) (quoting Sourcing Unlimited, 526

F.3d at 47). By contrast, we have explained that equitable

estoppel is not warranted where "the plaintiff's claims would exist

in the absence of the contract." Id. at 550 n.10 (citing Hogan,

914 F.3d at 42).

Cultural Care contends that equitable estoppel is

appropriate here because the "policies and powers" that the

plaintiffs assert give Cultural Care control over their

"conditions of employment" -- and would therefore establish an

employment relationship -- "all stem from [the] ICL [C]ontract."

Cultural Care points to various provisions of the ICL Contract,

including the requirement that plaintiffs "submit" certain

materials to ICL, which ICL then uses to "make a suitable host

family match" for them, and a provision of the contract that

reserves to ICL "the exclusive right to determine [the plaintiffs']

suitability for acceptance and . . . continued participation in

the Program." Cultural Care further emphasizes that the ICL

Contract spells out the plaintiffs' agreement to "stay[] within

- 39 - the legal number of working hours per day and week," to "perform

child care responsibilities," and to "participat[e] in all child

safety and child development training and orientation sessions."

These observations about the ICL Contract do not

persuade us. The plaintiffs' claims do not "directly . . . invoke"

the terms of the contract, Sourcing Unlimited, 526 F.3d at 47,

either to challenge those terms or to enforce a right created

therein, see, e.g., Hogan, 914 F.3d at 42 (noting that the

plaintiff in that case "d[id] not claim any benefit or right from

[the defendant] arising from the [contract]"). Nor are we

persuaded that the resolution of the plaintiffs' claims against

Cultural Care "depend on," Ouadani, 876 F.3d at 40, or "require[]

reference to," P.R. Fast Ferries LLC, 102 F.4th at 550 (quoting

Sourcing Unlimited, 526 F.3d at 47), the plaintiffs' contract with

ICL.

The District Court rightly determined that it "is

entirely possible that the plaintiffs' claims -- which are all

statutory in nature -- could proceed without any reference to the

[ICL] Contract." Whether Cultural Care exercises control over the

plaintiffs' employment in a manner that renders Cultural Care their

employer for the purpose of federal and state wage-and-hour laws

will turn, as the plaintiffs contend, on whether Cultural Care in

fact "exercises the control typically exercised (or performs the

roles typically performed) by an employer."

- 40 - After all, the plaintiffs' claimed employment

relationship is with Cultural Care, not ICL, and the ICL Contract

by its terms is an agreement reached solely between the au pair

and ICL. Thus, because we do not see how the analysis of whether

the relationship between the plaintiffs and Cultural Care is one

of employment depends on the terms of the ICL Contract, we see no

reason to reject the plaintiffs' contention that their "claims

would exist in the absence of the contract," a factor that we found

to be dispositive in explaining why equitable estoppel was not

warranted in Hogan. P.R. Fast Ferries LLC, 102 F.4th at 550 n.10

(citing Hogan, 914 F.3d at 42).

In that case, the plaintiff entered a contract

(containing an arbitration agreement) with SBS, a staffing company

that "assigned him to perform services for SPAR," a defendant in

that case. Hogan, 914 F.3d at 36. SBS was "'affiliate[d]' to

SPAR," but it was "not a subsidiary of or controlled by SPAR."

Id. SPAR was supplied with "substantially all" of its "Field

Specialists" in this way. Id.

The plaintiff brought suit against SBS and SPAR claiming

violations of the FLSA as well as state wage-and-hour laws. Id.

at 37. Both defendants moved to compel arbitration based on the

plaintiff's contract with SBS. Id. SPAR contended, among other

things, that, even though it was not a signatory to that contract,

the plaintiff was "equitably estopped from avoiding arbitration

- 41 - because his claims against SPAR [were] 'intertwined' with the [SBS

contract] and because SPAR and SBS . . . are 'closely related.'"

Id. at 40.

We rejected that contention by SPAR on the ground that

it could not satisfy the "'intertwined' requirement for purposes

of applying equitable estoppel." Id. at 42. In doing so, we

distinguished Hogan from cases in which the plaintiff's claims

"'derive[d] from benefits' [that it] alleged were due [to it] under

the [contract in question]." Id. (first alteration in original)

(quoting Sourcing Unlimited, 526 F.3d at 48). We explained that,

by contrast, the plaintiff's claims in Hogan for "unpaid wages and

benefits" were "premised upon [statutory] wage and hour law, not

the [contract at issue]." Id. The success of those statutory

claims therefore turned on "the nature of the services that [the

plaintiff] provided to SPAR," and would "exist even if the

[contract] were declared void." Id.

The circumstances here are nearly indistinguishable from

the factors we found relevant in Hogan. Thus, as in Hogan, we

conclude that there is no basis for applying equitable estoppel in

this case. Cultural Care therefore has not shown that it is

entitled to compel arbitration based on the ICL Contract.

VI.

The District Court's denial of the motion to compel

arbitration is affirmed.

- 42 -