Richard Chaty v. Cebridge Acquisition, LLC

132 F.4th 716

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 27, 2025
• Docket: 23-1145
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1142

BENJAMIN MEADOWS,

Plaintiff – Appellee,

v.

CEBRIDGE ACQUISITION, LLC; CEQUEL III COMMUNICATIONS I, LLC; CEQUEL III COMMUNICATIONS II, LLC; ALTICE USA, INC.,

Defendants – Appellants.

No. 23-1145

RICHARD CHATY,

CEBRIDGE ACQUISITION, LLC; CEQUEL III COMMUNICATIONS I, LLC; CEQUEL III COMMUNICATIONS II, LLC; ALTICE USA, INC.,

No. 23-1146

ROXIE GOOCH, Plaintiff – Appellee, USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 2 of 29

CEBRIDGE ACQUISITION, LLC; CEQUEL III COMMUNICATIONS I, LLC; CEQUEL III COMMUNICATIONS II, LLC; ALTICE USA, INC.,

Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:22-cv-00193; 2:22-cv-00188; 2:22- cv-00184)

Argued: November 1, 2024 Decided: March 27, 2025

Before WYNN and RUSHING, Circuit Judges, and Mary Geiger LEWIS, United States District Judge for the District of South Carolina, sitting by designation.

Reversed and remanded by published opinion. Judge Rushing wrote the opinion, in which Judge Lewis joined. Judge Wynn wrote an opinion concurring in part and concurring in the judgment.

ARGUED: Archis Ashok Parasharami, MAYER BROWN LLP, Washington, D.C., for Appellants. Jonathan Franklin Mitchell, MITCHELL LAW PLLC, Austin, Texas, for Appellees. ON BRIEF: Daniel E. Jones, Carmen N. Longoria-Green, MAYER BROWN LLP, Washington, D.C., for Appellants. Talcott J. Franklin, TFPC, Portland, Maine, for Appellees.

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RUSHING, Circuit Judge:

These consolidated appeals arise from the denial of motions to compel arbitration

in three almost identical lawsuits. Three West Virginia residents who were unhappy with

their cable and internet service, provided under the brand name “Suddenlink,” sued

Cebridge Acquisition, LLC, Cequel III Communications I, LLC, Cequel III

Communications II, LLC, and Altice USA, Inc. (collectively, Suddenlink). Suddenlink

moved to compel arbitration in each case, relying on the arbitration agreement in its 2021

Residential Services Agreement. The district court denied Suddenlink’s motions,

concluding that a 2017 arbitration agreement controlled, was unconscionable, and could

not be enforced. That was error. The 2021 arbitration agreement governs, and it is valid

and enforceable. We therefore reverse and remand with instructions to compel arbitration

of all three disputes.

I.

A.

Suddenlink provides broadband internet, television, and telephone services to

residential customers in West Virginia, among other States. In providing these services,

Suddenlink requires each customer to agree to its Residential Services Agreement (RSA),

which details the terms and conditions of the parties’ commercial relationship. Suddenlink

generally has its service technicians present new customers with an electronic copy of the

RSA to review and sign at the initial in-home service installation.

Plaintiffs Richard Chaty, Benjamin Meadows, and Roxie Gooch are Suddenlink

customers who are dissatisfied with the quality and reliability of Suddenlink’s internet and

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video services. Chaty became a Suddenlink customer in 2011, Meadows in 2013, and

Gooch in 2017. Each plaintiff has been a party to multiple versions of Suddenlink’s RSA,

which Suddenlink has modified at least five times since Chaty first became a customer.

See J.A. 257–265 (May 15, 2010); J.A. 245–255 (January 2013); J.A. 221–243 (June 1,

2016); J.A. 205–219 (September 19, 2019); J.A. 189–203 (October 1, 2021); and S.A. 1–

32 (July 20, 2022). The parties do not dispute that each plaintiff initially assented to the

operative RSA at the time of his or her respective service installation and later assented to

modified versions either during service visits, by paying monthly bills, or by receiving

email notifications.

As relevant here, Suddenlink’s RSA has included an arbitration provision since as

early as 2010. The October 2021 RSA, which was operative when all three plaintiffs sued,

states on the first page: “THIS AGREEMENT CONTAINS A BINDING

ARBITRATION AGREEMENT THAT AFFECTS YOUR RIGHTS, INCLUDING

THE WAIVER OF CLASS ACTIONS AND JURY TRIALS.” J.A. 189. The

arbitration agreement, located at paragraph 24 of the RSA, provides:

Any and all disputes arising between You and Suddenlink, or Your or it’s [sic] respective predecessors in interest, successors, assigns, and past, present, and future parents, subsidiaries, affiliates, officers, directors, employees, and agents, shall be resolved by binding arbitration on an individual basis in accordance with this arbitration provision. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; • Claims that arose before this or any prior Agreement, • Claims that may arise after the termination of this Agreement. 4 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 5 of 29

J.A. 194 ¶ 24(a). By consenting to arbitration, Suddenlink and its customers “each waive

the right to a trial by jury and the right to participate in a class, representative, or private

attorney general action.” J.A. 194 ¶ 24(a) (capitalization and boldface omitted).

The arbitration agreement outlines the procedure to initiate arbitration. “A party

who intends to commence arbitration must first send the other party a written Notice of

Dispute and engage in a good-faith negotiation of the dispute in an effort to resolve it

without the need for arbitration.” J.A. 194 ¶ 24(c)(i). If the parties do not resolve their

dispute within 60 days, then a party may submit a written demand for arbitration to the

American Arbitration Association (AAA). J.A. 194 ¶ 24(c)(ii), (d). If a customer initiates

arbitration, he is responsible for a portion of the arbitration fees up to a certain amount

depending on the size of his claim, with fees being “allocated in accordance with the AAA

rules” for claims exceeding $10,000. J.A. 195 ¶ 24(f). By contrast, if Suddenlink initiates

arbitration, Suddenlink pays all AAA filing, administrative, and arbitrator fees. J.A. 195

¶ 24(f).

Once initiated, an arbitration “will be administered by the AAA under the AAA’s

Consumer Arbitration Rules, as modified by [the] arbitration agreement.” J.A. 195 ¶ 24(e).

The agreement “explicitly prohibits the arbitration of consolidated, class, or representative

disputes of any form,” and prohibits an arbitrator from awarding “non-individualized relief

that would affect other account holders.” J.A. 195 ¶ 24(h) (“[T]he arbitrator may award

any relief that a court could award that is individualized to the claimant and would not

affect other Suddenlink account holders . . . .”). A single arbitrator will resolve the dispute

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and decide all issues, “except that issues relating to arbitrability, the scope or enforceability

of this arbitration provision, or the interpretation of its prohibitions of class, representative,

and private attorney general proceedings and non-individualized relief shall be for a court

of competent jurisdiction to decide.” J.A. 195 ¶ 24(e). If any portion of the arbitration

agreement “is determined to be unenforceable,” it can be severed and “the remainder of

th[e] arbitration provision shall be given full force and effect.” J.A. 196 ¶ 24(i). 1

The arbitration agreement authorizes an appeal to “a three-arbitrator panel

administered by AAA under its Optional Appellate Arbitration Rules” if the amount in

dispute exceeds $75,000 or the claim seeks injunctive relief. J.A. 195 ¶ 24(e). The panel’s

decision “shall be final and binding, subject to any right of judicial review that exists under

the [Federal Arbitration Act],” which governs the agreement. J.A. 195 ¶ 24(e), (g).

Finally, the arbitration agreement provides for modifications. Suddenlink reserves

the right to amend the arbitration agreement, but any amendment does not apply to claims

filed in a legal proceeding against Suddenlink before the effective date of the change. J.A.

195 ¶ 24(i). Suddenlink pledges to notify customers of changes “by posting notice of such

changes on Suddenlink’s website (www.suddenlink.com), or by sending notice via email

or postal mail to Customer’s billing address, and/or by contacting the telephone number(s)

on Customer’s account.” J.A. 196 ¶ 31. If a customer does not agree to the revision, he

“must immediately cease use of all Service(s) and notify Suddenlink that [he] is cancelling”

the agreement. J.A. 196 ¶ 24(i). Otherwise, a customer’s “continued use” of Suddenlink’s

1 Paragraph 24 of the October 2021 RSA contains two subsections labeled “(i).” 6 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 7 of 29

services following the notice of a change “shall be deemed to be the Customer’s acceptance

of any revision.” J.A. 196 ¶ 31.

B.

Plaintiffs filed three separate lawsuits in West Virginia state court in April 2022,

complaining that Suddenlink’s services were plagued with frequent outages, that

Suddenlink failed to maintain or upgrade its infrastructure, and that Suddenlink did not

adequately train its employees. Each complaint alleged that, “[a]ssuming the Suddenlink

adhesion contract is valid and enforceable, Plaintiff and Suddenlink entered into a contract,

called a Residential Services Agreement, whereby Suddenlink agreed to provide services

in exchange for payments from Plaintiff.” J.A. 53, 98, 151. Each plaintiff alleged that

Suddenlink failed to provide safe, adequate, and reliable services in violation of its October

2021 RSA and West Virginia state law. Plaintiffs sought damages on their negligence,

unjust enrichment, and breach of contract claims. And they each sought a declaratory

judgment that Suddenlink’s arbitration agreement was unenforceable, void for lack of

consideration, or otherwise unconscionable.

Suddenlink removed each case to federal court based on diversity jurisdiction and

immediately moved to stay the proceedings and compel arbitration, relying on the

arbitration agreement in the October 2021 RSA (henceforth, 2021 Arbitration Agreement).

Despite repeatedly referencing the October 2021 RSA in their complaints, plaintiffs

asserted in response to Suddenlink’s motion that an even more recent RSA, updated in July

2022, applied.

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The district court disagreed with both parties, instead concluding that “the

arbitration agreement in effect in July 2017 at the time [Gooch] signed up for services . . .

is operative because (1) there are no genuine issues of material fact that [Gooch] entered

into the 2017 Arbitration Agreement, and (2) Suddenlink’s attempts to unilaterally modify

the terms thereafter were ineffective.” 2 Gooch v. Cebridge Acquisition LLC, No. 2:22-cv-

00184, 2023 WL 415984, at *4 (S.D. W. Va. Jan. 25, 2023). The court did not address the

fact that Meadows signed up for Suddenlink services in 2013 and Chaty did so in 2011. 3

Examining the 2017 Arbitration Agreement sua sponte, the district court concluded

it was both procedurally and substantively unconscionable. See Gooch, 2023 WL 415984,

at *11–20. Regarding procedural unconscionability, the court considered the bargaining

power between the parties “unquestionably unequal” because plaintiffs were “relatively

unsophisticated consumer[s] contracting with corporate Defendants who drafted” the

agreement. Id. at *12. The court determined the 2017 Arbitration Agreement was adhesive

and, “[u]nlike latter versions,” did not contain an opt-out provision. Id. at *13. Reviewing

the agreement’s terms, the court found them “unduly complex” and “excessively difficult

to understand” because they incorporated the AAA rules without summarizing, attaching,

2 The district court referred to the arbitration agreement in the June 1, 2016, RSA as the 2017 Arbitration Agreement. We will do the same. 3 In Gooch, the district court denied Suddenlink’s motion to compel arbitration in a reasoned opinion. See 2023 WL 415984. Subsequently, the court entered summary orders in Meadows and Chaty, denying Suddenlink’s motions in those cases “for the reasons more fully set forth” in Gooch. Order, Chaty v. Cebridge Acquisition, LLC, No. 2:22-cv-00188, ECF No. 16 (S.D. W. Va. Jan. 25, 2023); Order, Meadows v. Cebridge Acquisition, LLC, No. 2:22-cv-00193, ECF No. 16 (S.D. W. Va. Jan. 25, 2023). The court did not provide any further reasoning to support its orders in Meadows or Chaty. 8 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 9 of 29

or hyperlinking them, and departed from those rules in some instances. Id. And the court

concluded plaintiffs were not afforded a “reasonable opportunity” to understand the

arbitration agreement when asked to read “complicated contract terms on a mobile device

while a service technician waited” for their signature. Id. at *14. In the court’s view, these

circumstances together “demonstrate[d] a gross inadequacy in bargaining power,” resulting

in a procedurally unconscionable agreement. Id. at *15 (internal quotation marks omitted).

As for substantive unconscionability, the district court rejected plaintiffs’ contention

that the terms of arbitration made pursuing small claims “financially unrealistic,” but

nevertheless found other terms in the 2017 Arbitration Agreement lacked mutuality or were

overly harsh. Id. at *17. Specifically, the court noted a provision allowing Suddenlink to

pursue in court claims relating solely to the collection of debts and a provision requiring

customers, but not Suddenlink, to initiate arbitration within one year of the claim. The

court also reasoned that the 2017 Arbitration Agreement’s bar on awarding punitive

damages “support[ed] a finding of substantive unconscionability.” Id. at *19. Despite a

severability clause in the agreement, the district court declined to sever the purportedly

unconscionable portions because “the offending provisions . . . go to the ‘essence’ of the

Arbitration Agreement.” Id. at *21. Having held the 2017 Arbitration Agreement

unconscionable and therefore unenforceable, the district court denied Suddenlink’s

motions to compel arbitration in all three cases.

Suddenlink timely appealed to this Court, and we consolidated the three appeals.

We have jurisdiction under the Federal Arbitration Act (FAA), which authorizes an

immediate appeal from an order denying a motion to compel arbitration. 9 U.S.C. § 16(a).

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II.

We review a district court’s denial of a motion to compel arbitration de novo.

Sydnor v. Conseco Fin. Serv. Corp., 252 F.3d 302, 304–305 (4th Cir. 2001). Under the

FAA, a litigant can compel arbitration if he can demonstrate “(1) the existence of a dispute

between the parties, (2) a written agreement that includes an arbitration provision which

purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by

the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of

the defendant to arbitrate the dispute.” Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500–501

(4th Cir. 2002) (internal quotation marks omitted). Only the second element is contested

here.

If a valid arbitration agreement exists and governs the parties’ dispute, a court “has

no choice but to grant a motion to compel.” Id. at 500. Whether the parties have in fact

executed an enforceable agreement to arbitrate is a matter of contract interpretation

governed by state law, which we also review de novo. See First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 944 (1995); Rota–McLarty v. Santander Consumer USA, Inc.,

700 F.3d 690, 699 (4th Cir. 2012).

III.

The sole issue before us is whether a valid, enforceable arbitration agreement

exists. 4 We will first address the existence of an agreement and then assess its

enforceability.

4 The parties do not dispute that plaintiffs’ claims fall within the scope of the arbitration agreement. 10 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 11 of 29

“Arbitration is a matter of contract.” Mey v. DIRECTV, LLC, 971 F.3d 284, 288

(4th Cir. 2020). To determine “whether the parties agreed to arbitrate,” courts apply

“ordinary state-law principles that govern the formation of contracts.” First Options, 514

U.S. at 944. Those principles must be generally applicable and cannot “single[] out”

arbitration agreements for “disfavored treatment.” Kindred Nursing Ctrs. L.P. v. Clark,

581 U.S. 246, 252 (2017). Under West Virginia law, which applies here, “the fundamentals

of a legal contract are competent parties, legal subject matter, valuable consideration and

mutual assent.” State ex rel. AMFM, LLC v. King, 740 S.E.2d 66, 73 (W. Va. 2013)

(internal quotation marks omitted). No one has suggested that the parties are incompetent

or the subject matter of the agreement illegal.

1.

Beginning then with mutual assent, we depart from the district court’s decision to

apply the 2017 RSA, a version of the contract that no party below argued should govern

the present disputes. Plaintiffs agree with Suddenlink that the October 2021 RSA—and

the arbitration agreement within it—applies to their claims. See Pls.’ Resp. to 28(j) Letter,

ECF No. 51 (June 24, 2024) (“[P]laintiffs are not contesting assent in this appeal.”); Oral

Arg. at 19:25–19:33 (“To be clear, we agree that we assented to the October 2021

Agreement, so it is applicable to this case.”). But plaintiffs now attempt to escape the 2021

Arbitration Agreement by averring they are “simultaneously” parties to all earlier and later

versions of the RSA in place while they were Suddenlink customers, each of which “claims

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to reach into the past and into perpetuity,” creating conflicting obligations. Resp. Br. 18.

Not so.

First, concerning the earlier RSAs, when plaintiffs assented to the October 2021

RSA and arbitration agreement therein, that version necessarily superseded any preceding

version of the agreement. “It is a well-established, fundamental principle of contract law”

that a prior contract between the parties may be “superseded by a subsequent contract,”

provided that all elements of formation are satisfied. Thornsbury v. Cabot Oil & Gas

Corp., 749 S.E.2d 569, 573 (W. Va. 2013); see also State ex rel. AT&T Mobility LLC v.

Wilson, 703 S.E.2d 543, 547 (W. Va. 2010). And a superseding contract need not say so

expressly. Rather, under West Virginia law “a subsequent contract which does not by

express terms abrogate an earlier contract nevertheless will operate as a discharge thereof,

if it is inconsistent with such earlier contract.” Myers v. Carnahan, 57 S.E. 134, 136 (W.

Va. 1907); accord Consolidation Coal Co. v. Mineral Coal Co., 126 S.E.2d 194, 201 (W.

Va. 1962). As plaintiffs themselves argue, the various arbitration agreements “contain

differing and mutually incompatible provisions.” Resp. Br. 28. Because multiple versions

cannot apply, the later-in-time version controls. See Myers, 57 S.E. at 136.

Second, as to the July 2022 RSA, it cannot apply because it became effective only

after plaintiffs sued. The July 2022 RSA and arbitration provision therein postdate

plaintiffs’ April 2022 complaints and even Suddenlink’s May 2022 motions to compel

arbitration. See, e.g., Defs.’ Mot. to Compel Arb., Gooch, No. 2:22–cv–00101, ECF No.

8 (S.D. W. Va. May 23, 2022). The 2021 Arbitration Agreement, which was the governing

version when plaintiffs sued, specifically provides that the parties “agree that if we make

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any amendment to this arbitration provision . . . in the future, that amendment shall not

apply to any claim that was filed in a legal proceeding against Suddenlink prior to the

effective date of the amendment.” J.A. 196 ¶ 24(i). And while the July 2022 RSA states

that amendments “shall apply to . . . disputes or claims that arose prior to the effective date

of the amendment,” that clause applies only to “amendment[s] to this arbitration provision

. . . in the future”; it does not purport to apply retroactively. S.A. 16 ¶ 24(j).

Plaintiffs are not simultaneously bound by conflicting agreements. Instead, because

neither earlier nor later versions of the RSA interfere with the operation of the 2021

Arbitration Agreement, we are satisfied that plaintiffs’ concession focuses our inquiry on

the sole applicable agreement.

2.

We are also satisfied that the remaining element of contract formation—valuable

consideration—was fulfilled for the 2021 Arbitration Agreement. “[A] mutual agreement

to arbitrate is sufficient consideration to support an arbitration agreement,” and here both

parties surrendered their right to trial and obligated themselves to arbitrate disputes.

Hampden Coal, LLC v. Varney, 810 S.E.2d 286, 293 (W. Va. 2018); Adkins, 303 F.3d at

501 (“[N]o consideration is required above and beyond the agreement to be bound by the

arbitration process.” (internal quotation marks and brackets omitted)).

Plaintiffs respond that the consideration is illusory because Suddenlink retained the

ability to unilaterally modify the agreement. “[A]n illusory promise appears to be a

promise, but it does not actually bind or obligate the promisor to anything” and so “cannot

constitute consideration.” Donna S. v. Travis S., 874 S.E.2d 746, 754 (W. Va. 2022)

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(internal quotation marks omitted). However, the unilateral right to modify a contract,

including an arbitration agreement, does not render an underlying promise illusory if the

modifying party must give reasonable notice of modification. See Citizens Telecomms. Co.

v. Sheridan, 799 S.E.2d 144, 152–153 (W. Va. 2017) (“[R]etaining the right to make

changes . . . does not necessarily mean promises explicitly or implicitly made . . . are not

enforceable, at least until such time as they are in fact changed.” (internal quotation marks

omitted)).

For example, in Sheridan, customers of telecommunications provider Frontier

argued the promise to arbitrate was illusory when Frontier retained the right to unilaterally

change the parties’ arbitration agreement. 799 S.E.2d at 153. The agreement permitted

Frontier to change the terms and conditions “at any time” by giving the customer notice,

and further provided the customer would “accept the changes” by “us[ing] the service after

notice is provided.” Id. at 147 (capitalization and boldface omitted). Rejecting the

customers’ argument, the Supreme Court of Appeals of West Virginia held that “the

agreement to arbitrate is not an illusory promise because both parties are bound to arbitrate

and unilateral changes to the agreement to arbitrate may not be implemented without

consent from Frontier customers.” Id. at 153.

The same is true here. To be sure, Suddenlink could modify the arbitration

agreement “in its sole discretion.” J.A. 196 ¶ 31. However, Suddenlink must “notify

[customers] of amendments” to the arbitration agreement, at which point customers who

“do not agree to the revisions” can cancel their RSAs. J.A. 196 ¶ 24(i). As in Sheridan, a

“[c]ustomer’s continued use of the [services] following notice of such change, modification

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or amendment shall be deemed . . . acceptance.” J.A. 196 ¶ 31. In view of these notice

requirements, the mutual promise to arbitrate is not illusory under West Virginia law. See

Sheridan, 799 S.E.2d at 153.

The 2021 Arbitration Agreement therefore satisfies all the elements of contract

formation, and that version governs these disputes to the exclusion of any prior or

subsequent agreement.

Before we assess the enforceability of the 2021 Arbitration Agreement, we find it

necessary to explain the limits on our review. Many of plaintiffs’ complaints about the

RSA concern terms and conditions outside the Arbitration Agreement. But our review is

cabined to the enforceability of the Arbitration Agreement itself. We may not determine

the enforceability of other contractual provisions within the RSA, which the contract

reserves for the arbitrator to decide. See J.A. 195 ¶ 24(e). As the Supreme Court has

explained, an arbitration agreement is severable from the remainder of the contract, and

“unless the challenge is to the arbitration clause 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, 445–446 (2006); see also Snowden v. CheckPoint Check Cashing,

290 F.3d 631, 637 (4th Cir. 2002). Once “a court is ‘satisfied that the making of the

agreement for arbitration . . . is not in issue,’ it must send the dispute to an arbitrator.”

Coinbase, Inc. v. Suski, 144 S. Ct. 1186, 1192 (2024) (quoting 9 U.S.C. § 4); see also Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–404 (1967) (explaining that

the FAA limits a court to “consider only issues relating to the making and performance of

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the agreement to arbitrate”). Accordingly, plaintiffs’ numerous challenges to the general

terms of the October 2021 RSA are for the arbitrator to decide, and we reject the invitation

to consider them here.

Plaintiffs attempt to sidestep this principle by arguing that Suddenlink endeavors to

evade judicial review of unconscionable arbitration terms by moving them outside the

Arbitration Agreement into the main body of the RSA. Regardless of the contractual

location of the contested term, however, “[a] party challenging the enforceability of an

arbitration clause under Section 2 of the FAA must rely on grounds that ‘relate specifically

to the arbitration clause and not just to the contract as a whole.’” Muriithi v. Shuttle Exp.,

Inc., 712 F.3d 173, 183–184 (4th Cir. 2013) (quoting Snowden, 290 F.3d at 636); see also

Snowden, 290 F.3d at 634 (considering “all of the language in the [contract] pertaining to

the subject of arbitration” to be the arbitration agreement). Any “alleged defects” that

“pertain to the entire contract, rather than specifically to the arbitration clause” must be

“left to the arbitrator for resolution.” Jeske v. Brooks, 875 F.2d 71, 75 (4th Cir. 1989).

None of the provisions plaintiffs challenge outside the 2021 Arbitration Agreement

(at paragraph 24 of the October 2021 RSA) pertain exclusively to the subject of arbitration,

as opposed to the contract as a whole. For example, plaintiffs argue that Suddenlink

“moved the problematic limitation on punitive damages out of the arbitration clause and

placed it into a different provision of the [RSA].” Resp. Br. 28. They make the same claim

regarding the one-year “contractual statute of limitations.” Resp. Br. 38. Plaintiffs are

mistaken. The allegedly relocated provisions, or similar language, can also be found

outside the arbitration agreement in the 2017 RSA. See J.A. 223–224, 226–227. More

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importantly, the challenged provisions do not single out (or even mention) arbitration, and

thus would apply equally to disputes in any forum. The same is true for the “limitation of

liability” paragraphs in the RSA about which plaintiffs complain. Any challenge to the

validity of those general contract provisions is reserved for the arbitrator. Buckeye Check

Cashing, 546 U.S. at 445–446; see also Muriithi, 712 F.3d at 184 (holding that district

court erred in resolving challenge to contractual one-year limitations provision on a motion

to compel arbitration because the challenge “does not rely on any aspect of the Arbitration

Clause, but relates only to the general contract defense itself”).

C.

We now turn to whether the 2021 Arbitration Agreement is enforceable. The FAA

provides that a written agreement to arbitrate “shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for the revocation of any contract.” 9

U.S.C. § 2. Plaintiffs contend the Arbitration Agreement cannot be enforced because it is

unconscionable in various respects. “The doctrine of unconscionability means that,

because of an overall and gross imbalance, one-sidedness, or lop-sidedness in a contract, a

court may be justified in refusing to enforce the contract as written.” Brown v. Genesis

Healthcare Corp., 724 S.E.2d 250, 283 (W. Va. 2011) (Brown I), vacated on other grounds

by Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012). West Virginia law

governs the enforceability of the Arbitration Agreement’s terms, and in West Virginia, a

contract term is unenforceable only “it if is both procedurally and substantively

unconscionable.” Id. at 289. In evaluating these components, West Virginia courts employ

a sliding scale: “the more substantively oppressive the contract term, the less evidence of

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procedural unconscionability is required to come to the conclusion that the clause is

unenforceable, and vice versa.” Id.

“Procedural unconscionability is concerned with inequities, improprieties, or

unfairness in the bargaining process and formation of the contract.” Brown v. Genesis

Healthcare Corp., 729 S.E.2d 217, 227 (W. Va. 2012) (Brown II) (internal quotation marks

omitted). Inadequacies relevant to procedural unconscionability “include, but are not

limited to, the age, literacy, or lack of sophistication of a party; hidden or unduly complex

contract terms; the adhesive nature of the contract; and the manner and setting in which the

contract was formed, including whether each party had a reasonable opportunity to

understand the terms of the contract.” Id. (internal quotation marks omitted).

Plaintiffs’ laundry list of alleged procedural inadequacies in the 2021 Arbitration

Agreement lacks merit. First, plaintiffs suggest that Suddenlink’s arbitration agreement is

difficult for customers in West Virgina to understand because “17 percent of West Virginia

adults have significant difficulty with literacy.” Resp. Br. 37–38 (internal quotation marks

omitted). That generalized contention is irrelevant here, where none of the plaintiffs claim

to struggle with literacy. See New v. GameStop, Inc., 753 S.E.2d 62, 76 (W. Va. 2013)

(finding no procedural unconscionability where plaintiff “failed to offer any evidence that

she was incapable due to age, literacy or lack of sophistication to understand” the

arbitration agreement). We also do not infer unconscionability from Suddenlink’s

purported “monopoly power” over the services it provides, Resp. Br. 26, or the generically

described unequal bargaining power between the parties. “A ruling of unconscionability

18 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 19 of 29

based on this analysis alone could potentially apply to every” telecommunications contract,

and arguably every consumer contract. Adkins, 303 F.3d at 501–502; see Troy Mining

Corp. v. Itmann Coal Co., 346 S.E.2d 749, 753 (W. Va. 1986) (explaining, in

unconscionability analysis, that “it is not the province of the judiciary to try to eliminate

the inequities inevitable in a capitalist society”).

In a related vein, plaintiffs emphasize the adhesive nature of Suddenlink’s contract.

Yet contracts of adhesion are commonplace and not presumptively unconscionable. Brown

I, 724 S.E.2d at 286; see also Nationstar Mortg., LLC v. West, 785 S.E.2d 634, 639 n.12

(W. Va. 2016) (“[T]here is nothing inherently wrong with a contract of adhesion.” (internal

quotation marks omitted)). It is true that “[a] contract of adhesion must be closely

scrutinized to determine if it imposes terms beyond the reasonable expectations of an

ordinary person, or oppressive or unconscionable terms, any of which will prevent

enforcement of the agreement.” Brown I, 724 S.E.2d at 287. But while an adhesive

contract deserves extra scrutiny, that is only “the beginning point for analysis, not the end

of it.” State ex rel. Ocwen Loan Serv., LLC v. Webster, 752 S.E.2d 372, 389 (W. Va. 2013)

(internal quotation marks omitted); see also Brown II, 729 S.E.2d at 228 (“[W]hat courts

aim at doing is distinguishing good adhesion contracts which should be enforced from bad

adhesion contracts which should not.” (internal quotation marks omitted)).

19 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 20 of 29

The same goes for a preexisting customer’s inability to opt out of Suddenlink’s form

arbitration agreement, which plaintiffs protest. 5 As the Supreme Court of Appeals of West

Virginia has explained, the absence of an “‘opt out’ provision,” while “one of multiple

factors to consider,” “is not in itself sufficient evidence that an arbitration agreement is

grossly unfair and thus unenforceable on grounds of procedural unconscionability.”

Nationstar Mortg., 785 S.E.2d at 640. In fact, the absence of an opt-out provision is

analytically indistinct from the agreement’s adhesive nature. That is, as existing

Suddenlink customers, plaintiffs must either agree to arbitrate their disputes or find another

telecommunications provider. Without further marks of unfairness, we cannot deem that

commercial proposition unconscionable without “singling out” an arbitration agreement

for “disfavored treatment” in violation of the FAA. Kindred Nursing Ctrs., 581 U.S. at

252. So absent further evidence of unconscionability, plaintiffs are not absolved of their

commitments just because Suddenlink’s contract—and its requirement that disputes be

arbitrated—is presented on a take-it-or-leave-it basis. See Troy Mining, 346 S.E.2d at 753

(“A litigant who complains that he was forced to enter into a fair agreement will find no

relief on grounds of unconscionability.”).

We also cannot conclude the 2021 Arbitration Agreement contains hidden or unduly

complex terms. As explained, Suddenlink did not move or “hide” arbitration-related

provisions elsewhere within the RSA. See supra Part III.A. Nor, contrary to the district

5 The 2021 Arbitration Agreement allows individuals who became Suddenlink customers within 30 days of the agreement’s effective date to opt out altogether. The opt- out provision does not apply to existing customers who previously entered an arbitration agreement. 20 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 21 of 29

court’s assessment, are “the terms that lay out the rules governing arbitration . . .

excessively difficult to understand.” Gooch, 2023 WL 415984, at *13 (internal quotation

marks and capitalization omitted). The 2021 Arbitration Agreement incorporates “the

AAA’s Consumer Arbitration Rules, as modified by this arbitration provision.” J.A. 195

¶ 24(e). The Supreme Court of Appeals of West Virginia has repeatedly upheld arbitration

agreements incorporating the AAA’s rules. See, e.g., Sheridan, 799 S.E.2d at 147 n.2;

Shorts v. AT&T Mobility, No. 11-1649, 2013 WL 2995944, at *7 (W. Va. June 17, 2013).

The agreement here even includes a hyperlink to the AAA website where the rules can be

found, closing a gap that troubled the district court when it evaluated a prior version of the

agreement. And to the extent the 2021 Arbitration Agreement varies from the AAA rules

in certain instances, plaintiffs have not raised any concern about those provisions.

Lastly, Suddenlink’s practice of having its customers review and consent to the

arbitration agreement during service installation is not unconscionable. 6 Contrary to the

district court’s view, presenting customers with a mobile device on which to read and sign

the RSA does not deny them a “reasonable opportunity to understand the terms.” Gooch,

2023 WL 415984, at *14. Reading multiple pages of text on a technician’s mobile device

6 We address the circumstances of plaintiffs’ initial agreement to arbitrate because the district court found it supported procedural unconscionability. We recognize, however, that plaintiffs concede they subsequently assented to the modified 2021 Arbitration Agreement by receiving and paying their monthly bills, which stated that payment confirmed acceptance of the RSA, viewable at a hyperlinked web address. See, e.g., Frashuer v. Altice USA, Inc., No. 2:21-CV-17, 2023 WL 195523, at *2 (N.D. W. Va. Jan. 17, 2023) (“Defendant offered its terms and conditions through its billing statement and corresponding website, and Plaintiff accepted Defendant’s terms and conditions by continuing to use and pay for Defendant’s services.”). 21 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 22 of 29

may be tedious, but that inconvenience is not unconscionable. Cf., e.g., Mey, 971 F.3d at

286 (upholding arbitration agreement where customer in store “was electronically

presented with the [agreement], which she could read on the screen or print”); Hancock v.

AT&T Co., 701 F.3d 1248, 1257 (10th Cir. 2012) (finding valid assent where customer was

required to use a “web application . . . presented on the technician’s laptop”). Moreover,

the arbitration provision was bolded and underlined, and the final acknowledgement that

plaintiffs each signed explicitly noted the presence of a binding arbitration provision. See

United States ex rel. TBI Invs., Inc. v. BrooAlexa, LLC, 119 F. Supp. 3d 512, 531–532 (S.D.

W. Va. 2015) (enforcing arbitration clause that was provided directly above the signature

line). Because plaintiffs were not prevented from reading the clearly labeled arbitration

provision, Suddenlink’s procedure does not support unconscionability.

Given plaintiffs’ minimal showing on procedural unconscionability, they must show

significant substantive unconscionability to succeed in proving the 2021 Arbitration

Agreement unenforceable on West Virginia’s sliding scale. Under West Virginia law, “[a]

contract term is substantively unconscionable only if it is both one-sided and overly harsh

as to the disadvantaged party.” McFarland v. Wells Fargo Bank, N.A., 810 F.3d 273, 278

(4th Cir. 2016) (internal quotation marks omitted). “Generally, courts should consider the

commercial reasonableness of the contract terms, the purpose and effect of the terms, the

allocation of the risks between the parties, and public policy concerns.” State ex rel.

Richmond Am. Homes of W. Va., Inc. v. Sanders, 717 S.E.2d 909, 921 (W. Va. 2011)

(internal quotation marks omitted).

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Plaintiffs first allege that two procedural terms in the 2021 Arbitration Agreement

are substantively unconscionable: the pre-arbitration notice requirement and the appeals

process. Neither is. Regarding notice, the arbitration agreement requires a party, before

initiating arbitration, to send the counterparty a notice of dispute and wait 60 days to

attempt to “reach an agreement” to settle the dispute without arbitration. J.A. 194. There

is nothing unreasonable, let alone unconscionable, about such a provision. It applies to

both parties equally. And it serves a commercially reasonable purpose by allowing both

parties the opportunity to resolve disputes informally without incurring the expense of

arbitration. Cf. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336–337 (2011)

(upholding arbitration provision that required notice of dispute and 30-day resolution

waiting period).

Nor is the arbitration appeals process unreasonable. Either party may appeal an

arbitral award to a three-member panel if the amount in dispute exceeds $75,000 or “the

claim seeks any form of injunctive relief.” J.A. 195 ¶ 24(e). Plaintiffs contend this

procedure can only benefit Suddenlink, but they simply misread the provision and so ignore

the customer’s right to appeal an arbitrator’s denial of injunctive relief. Likewise,

plaintiffs’ fear that incorporation of the AAA’s Optional Appellate Arbitration Rules

(OAAR) “might open the door toward shifting fees onto a customer” is misguided. Resp.

Br. 46–47. As plaintiffs and Suddenlink both acknowledge, the OAAR by their terms “do

not apply to disputes where the arbitration clause is contained in an agreement between

individual consumers and businesses where the business has a standardized, systematic

application of arbitration clauses with customers and where the terms and conditions of the

23 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 24 of 29

purchase of standardized, consumable goods or services are non-negotiable or primarily

non-negotiable in most or all of its terms, conditions, features, or choices.” OAAR A-1*.

At most, then, Suddenlink’s effort to incorporate the OAAR was ineffective, and we are

left with an otherwise reasonable appeals protocol.

Plaintiffs also take issue with the 2021 Arbitration Agreement’s prohibition on

“non-individualized relief that would affect other account holders,” but this line of attack

is foreclosed by the FAA and West Virginia law. J.A. 195 ¶ 24(h). As an initial matter,

class action waivers in arbitration agreements are enforceable under the FAA. See Am.

Express Co. v. Italian Colors Rest., 570 U.S. 228, 238–239 (2013); AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 340–344 (2011). And West Virginia courts have upheld

waivers of class-wide relief in the face of unconscionability challenges. See Sheridan, 799

S.E.2d at 147 n.2, 148, 154; Ocwen, 752 S.E.2d at 393; State ex rel. AT&T Mobility v.

Wilson, 703 S.E.2d 543, 550 (W. Va. 2010). For example, in Sheridan, Frontier’s

arbitration agreement, similar to Suddenlink’s here, authorized the arbitrator to award

“individual relief,” including “individualized injunctions,” but waived the customer’s

“right to participate in a class action, a representative proceeding or a private attorney

general action.” 799 S.E.2d at 147 & n.2. The Supreme Court of Appeals of West Virginia

rejected the plaintiffs’ unconscionability argument and upheld the agreement’s

“prohibition of class-wide injunctive relief.” Id. at 154 (“It is permissible for parties to an

arbitration provision to agree to waive class-wide injunctive relief.”). Sheridan is on point

and controlling, therefore we conclude that the waiver of non-individualized relief in

Suddenlink’s arbitration agreement is not substantively unconscionable.

24 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 25 of 29

Having considered plaintiffs’ arguments regarding both components of

unconscionability, we must conclude the 2021 Arbitration Agreement is not procedurally

and substantively unconscionable. See Horizon Ventures of W. Va., Inc. v. Am. Bituminous

Power Partners, L.P., 857 S.E.2d 33, 41 (W. Va. 2021) (“‘[T]he burden of proving that a

contract term is unconscionable rests with the party attacking the contract.’” (quoting

Brown I, 724 S.E.2d at 284)). Accordingly, plaintiffs’ challenge to the enforceability of

that agreement fails.

IV.

Lastly, we consider plaintiffs’ claim that Suddenlink has waived its right to compel

arbitration of these disputes by entering into a class settlement to resolve different claims

about fees and surcharges in New Jersey state court. See Seale v. Altice USA, Inc., No.

MER-L-618-23 (N.J. Sup. Ct. Mar. 31, 2023); see also Edens v. Cebridge Acquisition,

LLC, No. 22-0101 (S.D. W. Va. Jan. 2, 2024), ECF No. 48-1, at ¶ 3 & Exs. A–C.

Plaintiffs’ position is untenable. Suddenlink has stipulated that its out-of-state class

settlement does not cover plaintiffs’ claims here, which are not about fees and surcharges.

Litigation surrounding factually and legally distinct claims “cannot support a finding that

[a party] waived its right to arbitrate . . . unrelated claims” brought by a different

counterparty. MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 250 (4th Cir. 2001).

Indeed, courts have roundly rejected the idea that “allegedly inconsistent conduct in

a separate case involving a different party can waive the right to arbitrate.” Chun Ping

Turng v. Guaranteed Rate, Inc., 371 F. Supp. 3d 610, 620 (N.D. Cal. 2019); see Leeper v.

Altice USA, Inc., 722 F. Supp. 3d 893, 901 (W.D. Ark. 2024) (rejecting waiver of

25 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 26 of 29

Suddenlink’s right to arbitrate based on the same New Jersey settlement plaintiffs raise

here); Bischoff v. DirecTV, Inc., 180 F. Supp. 2d 1097, 1113 (C.D. Cal. 2002) (“[T]o hold

that defendant can no longer assert its right to compel arbitration simply because it did not

assert that right in another case is absurd.”). As another court has observed, “[t]o hold that

a defendant waives its right to compel arbitration in one case by entering a judicial

settlement in another case would create a disincentive to settle” that “is to be avoided.”

Lawrence v. Household Bank (SB), N.A., 343 F. Supp. 2d 1101, 1113 (M.D. Ala. 2004).

Suddenlink’s efforts to settle the New Jersey claims did not waive its right to arbitrate these

disputes.

Ultimately, although plaintiffs would have us do more, the FAA and the parties’

contract restrict us to deciding only whether plaintiffs and Suddenlink entered into a valid

and enforceable arbitration agreement that governs the disputes alleged in plaintiffs’

complaints. We conclude that they did. In so holding, we do not assess the merits of

plaintiffs’ underlying state law claims or the enforceability of other RSA provisions.

Instead, as the FAA requires, we simply instruct that the parties’ agreement to arbitrate be

enforced. The district court’s judgments denying Suddenlink’s motions to compel

arbitration are reversed, and the cases are remanded with instructions to compel arbitration.

REVERSED AND REMANDED

26 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 27 of 29

WYNN, Circuit Judge, concurring in part and concurring in the judgment:

I agree with the majority opinion that the district court erred in concluding that the

2017 Arbitration Agreement controlled, was unconscionable, and could not be enforced.

As the majority opinion correctly explains, the 2021 Residential Services Agreement

(“RSA”) governs this dispute, and its arbitration clause is valid and enforceable. I write

separately to make clear my reasoning for agreeing with the majority opinion.

The majority opinion concludes that the 2021 RSA’s modification clause does not

undermine its arbitration provision because “Suddenlink must ‘notify [customers] of

amendments’ to the arbitration agreement, at which point customers who ‘do not agree to

the revisions’ can cancel their RSAs.” Majority Op. at 14. I agree that under West Virginia

law, reasonable notice can support a unilateral modification. But the modification clause

at issue here does undermine Suddenlink’s promise to arbitrate, because it permits

Suddenlink to unilaterally revoke that promise without reasonable notice.

Under West Virginia law, “a subsequent modification” of a unilateral contract

requires “reasonable notice of the changes.” Citizens Telecomms. Co. v. Sheridan, 799

S.E.2d 144, 151 (W. Va. 2017) (quoting Hogue v. Cecil I. Walker Mach. Co., 431 S.E.2d

687, 691 (W. Va. 1993)). Sheridan, for example, found that requirement satisfied when an

internet provider gave “written notice of the change” to its consumer agreement and

included “a paper copy” of the revised agreement in customers’ billing statements. Id. The

court explained that the provider “was entitled to rely on its customers to read information

circulated to them.” Id.

27 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 28 of 29

Here, the 2021 RSA requires Suddenlink to “notify [customers] of amendments to

th[e] arbitration provision in the manner described in” the modification clause. J.A. 196.

So far, so good. But according to the modification clause, “sufficient notice” can include

“posting notice of [the] changes on Suddenlink’s website,” without any effort to contact

the customer. Id. That does not satisfy West Virginia’s reasonable-notice standard. True,

as Suddenlink argues, “[a] court can assume that a party to a contract has read and assented

to its terms.” New v. GameStop, Inc., 753 S.E.2d 62, 76 (W. Va. 2013) (quoting Adkins v.

Lab. Ready, Inc., 185 F. Supp. 2d 628, 638 (S.D. W. Va. 2001)). But a court cannot assume

that a party has assented to modified terms when it had no reason to know of the

modification. 1

Nevertheless, this infirmity does not afflict the formation of the arbitration

agreement. In West Virginia (unlike in some other states 2), the consideration supporting a

consumer contract as a whole can also support its included arbitration agreement. See Dan

Ryan Builders, Inc. v. Nelson, 737 S.E.2d 550, 556–58 (W. Va. 2012). So Suddenlink’s

discretion to modify (or even revoke) the arbitration agreement with only passive notice

1 This issue is not remedied by the modification clause’s provision purporting to obligate customers “to regularly check . . . all postings on the Suddenlink web site.” J.A. 196. The touchstone of West Virginia’s unilateral-modification requirement is reasonable notice. See Sheridan, 799 S.E.2d at 151. It is not reasonable to expect customers to continually check a corporate website for unilateral changes to a binding user agreement; and it is eminently reasonable to expect the corporation to make some effort to contact customers to inform them of the changes. 2 See, e.g., Cheek v. United Healthcare of Mid-Atl., Inc., 835 A.2d 656, 669 (Md. 2003) (holding that under Maryland law, the consideration supporting a container contract is not “sufficient to support” an included arbitration agreement). 28 USCA4 Appeal: 23-1145 Doc: 63 Filed: 03/27/2025 Pg: 29 of 29

does not undermine the only consideration supporting the arbitration agreement—as it

might in, say, Maryland. See Johnson v. Cont’l Fin. Co., --- F.4th ---, No. 23-2047, 2025

WL 758026, at *9–10 (4th Cir. Mar. 11, 2025) (Wynn, J., concurring).

Of course, an attempt to surreptitiously revoke the arbitration provision and then

sue might violate the implied covenant of good faith and fair dealing. But under West

Virginia law, the possibility of such a ploy doesn’t preclude the formation of an arbitration

agreement that draws consideration from its container contract. Because the arbitration

agreement is validly formed—and because Plaintiffs’ unconscionability arguments fail 3—

we must enforce it.

Subject to these observations, I concur in the majority opinion’s analysis and in its

holding.

3 I am skeptical that presenting customers with a mobile device on which to read and sign a complex, multi-page contract while a technician waits provides them with a “reasonable opportunity to understand the terms.” Gooch v. Cebridge Acquisition LLC, No. 2:22-cv-00184, 2023 WL 415984, at *14 (S.D. W. Va. Jan. 25, 2023). But here, that factor does not tip the balance of West Virginia’s demanding unconscionability test—and in any event, Plaintiffs have conceded their assent to the operative (2021) arbitration agreement. 29