Rivera-Colon v. AT&T Mobility Puerto Rico, Inc , 913 F.3d 200 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-2036
NEREIDA RIVERA-COLÓN,
Plaintiff, Appellant,
v.
AT&T MOBILITY PUERTO RICO, INC.; ÁNGEL COUVERTIER-LÓPEZ;
CARLOS DELIZ; VICTOR PABÓN,
Defendants, Appellees,
COMPANIES X, Y, Z; JANE DOES; JOHN DOES;
INSURANCE COMPANIES A, B, C,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C.
was on brief, for appellant.
Kenneth W. Gage, with whom Sara B. Tomezsko, Paul Hastings
LLP, José F. Benítez-Mier, Iván Santos-Castaldo, and O'Neill &
Borges LLC were on brief, for appellees.
January 16, 2019
THOMPSON, Circuit Judge. Nereida Rivera-Colón
("Rivera") filed suit against her former employer, AT&T Mobility
Puerto Rico, Inc. ("AT&T"),1 alleging age discrimination and
wrongful termination. After AT&T pulled out its arbitration
agreement with Rivera, the district court sent the parties packing
to arbitrate. Rivera now asks us to flip the district court's
order and allow her to slug it out with AT&T in court. She says
that she shouldn't have to arbitrate her claims because she never
accepted AT&T's offer to arbitrate legal grievances in the first
place. But because we conclude that she manifested her intent to
accept the agreement as per Puerto Rico law, we affirm.
BACKGROUND
We start with a chronicle of the parties’ relationship
and how they ended up here, diving into some detail (for reasons
that will become apparent later).2
1 She also sued some of her supervisors, who are the other
defendant-appellees, Ángel Couvertier-López, Carlos Deliz, and
Victor Pabón. But they raise the same arguments as AT&T, so we
just loop them in collectively with their employer, and call them
AT&T.
2 Where, as here, the motion to compel arbitration was made
as part of a motion to dismiss or stay, "we glean the relevant
facts from the operative complaint and the documents submitted to
the district court in support of the motion." Oliveira v. New
Prime, Inc., 857 F.3d 7, 9 n.1 (1st Cir. 2017), aff’d, ____ S. Ct.
____, No. 17-340, 2019 WL 189342 (U.S. Jan. 15, 2019).
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A. Rivera's Employment
Their story begins in December 1997, when Rivera (then
in her late twenties) began her twenty years' tenure as an employee
of AT&T in Puerto Rico. By 2006, she had worked her way up the
corporate ladder to become an Assistant Store Manager in AT&T's
retail location in Mayagüez, Puerto Rico. There she supervised a
small team of employees who sold cell phones, service plans, and
all the like. For the majority of her time with AT&T, she says
all went well. She consistently received high performance ratings
and was praised by her superiors.
But Rivera says everything changed beginning in 2015.
Out of the blue, she was transferred from her home base in Mayagüez
after twelve years there--even though she had seniority over the
other assistant manager, and even though transfers were supposed
to be based on seniority. AT&T stationed her at another retail
location, this one a kiosk at the Aguadilla Mall, about an hour
drive from her home. She says this transfer was really a demotion.
The Aguadilla kiosk had lower sales (which means lower
commissions), worse hours, and less opportunity for promotion.
And, to boot, she says her supervision in Aguadilla was a far throw
away from congenial. Now 49 years old, Rivera was supervised by
a manager fifteen years her junior who, according to her, placed
her on a performance improvement plan for no legitimate reason,
and harassed her because of her age.
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B. Rolling Out the Arbitration Agreement
A few years before things turned sour, though, AT&T
rolled out an arbitration program to a large chunk of its
employees, including Rivera.3 On November 30, 2011, AT&T sent
Rivera an email (on her company email account with unique username
and password) informing her of the proposed change. The email
told Rivera that under the program, "employees and the company
would use independent, third-party arbitration rather than courts
or juries to resolve legal disputes." But unlike some other
arbitration programs, AT&T's wasn't mandatory. Instead, AT&T said
that "[t]he decision on whether or not to participate [was
Rivera's] to make," and that if she didn't want to participate in
this alternative dispute resolution mechanism, she could opt out
by following two links: one in the email, and one in the webpage
the email link opened. There were no consequences for opting out
(except, of course, that Rivera couldn't force AT&T to arbitrate
its claims against her).
The offer came with a proviso, though: if Rivera didn't
opt out by the end of the day on February 6, 2012 (giving Rivera
sixty-eight days to respond), AT&T would take it as though she
opted in. The email told her: "[i]f you do not opt out by the
3
Before 2011, AT&T didn't have an independent arbitration
agreement with Rivera, or an arbitration provision in Rivera's
employment contract.
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deadline, you are agreeing to the arbitration process as set forth
in the Agreement. This means that you and AT&T are giving up the
right to a court or jury trial on claims covered by the Agreement."
The email advised Rivera to review the agreement before making a
decision and instructed that if she wished to opt out, she needed
to open the agreement and "follow the link provided there to the
site where [she would] be able to electronically register [her]
decision to opt out." AT&T sent the same email to Rivera twice
more--once in December 2011, and once in January 2012. All three
emails included instructions on how to opt out.
Opting out of the agreement required two steps. First,
as the email said, Rivera would need to open the agreement and
acknowledge that she read it. Every employee was required to
conduct this first step regardless of whether they chose to opt
out. To complete this step, the employee needed to follow the
link provided in the email, which led to a webpage that contained
the full text of the agreement. On that page, there was a button
marked "Review Completed" in the upper-left-hand corner of the
page.
According to AT&T's records (and she doesn't contend
otherwise), Rivera completed this step and acknowledged that she
read the agreement. Indeed, according to AT&T's internal records
of website traffic, Rivera viewed the arbitration agreement twice.
The first time was in December 2011, although she didn't click the
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acknowledgement button then. And on round two, she clicked the
acknowledgement button less than an hour after the January 17,
2012 follow-up email was sent. Rivera doesn't dispute that it was
she who clicked "Review Completed," nor does she argue that she
clicked the acknowledgement button at the top of the page without
scrolling down to read the agreement.4
Step two of the opt-out procedure: the employee had to
click one additional link--this one in paragraph four of the
agreement on that webpage. This paragraph, just a few lines into
the agreement, discussed the opportunity to opt out and laid out
the mechanism to do so: "[i]f you choose to opt out, use this
link . . . which will take you to the site where you can
electronically register your decision to opt out. That site will
generate and send you a written confirmation of your decision to
opt out." And, according to AT&T, a cohort of thousands of
Rivera's colleagues followed that link and opted out of the
arbitration agreement.
4
The placement of the "Review Completed" button at the top
of the agreement makes it a type of "clickwrap" agreement where
the party doesn't need to actually scroll through the agreement
before accepting it. See Cullinane v. Uber Techs., Inc., 893 F.3d
53, 61 n.1 (1st Cir. 2018) (quoting Berkson v. Gogo LLC, 97
F. Supp. 3d 359, 394 (E.D.N.Y. 2015)) (discussing the different
types of acceptance processes for online agreements). So,
technically, Rivera could have acknowledged the agreement without
ever scrolling through to read it in its entirety. But because
she doesn't argue that she never read the agreement, this case
isn't really about the new questions internet-based contracts like
these have raised, so we need not get into the weeds on that front.
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Rivera has never argued, either to the district court or
to us, that she did follow that link and tried to opt out but that
the company just didn't register her decision. Nor has she argued
that the opt-out procedure was confusing, or that she couldn't
find how to opt out. In other words, she makes no argument that
she affirmatively chose to opt out--or even wanted to do so--at
the time the agreement was offered to her.
C. Their Litigation
Eventually, AT&T fired Rivera in May 2016, and replaced
her with a 34-year-old. Taking issue with the way things went
down, Rivera sued AT&T, her supervisors, and some other unnamed
parties (the last of which don't appear here) in the U.S. District
Court for the District of Puerto Rico. She brought an array of
claims for violations of her civil rights, alleging that AT&T
discriminated against her for her age, in violation of Title VII
of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.; Puerto Rico
Law 100, P.R. Laws Ann. tit. 29, §§ 146, et seq.; and Puerto Rico
Law 69, P.R. Laws Ann. tit. 29, §§ 1321, et seq. She also alleged
wrongful termination under Puerto Rico Law 80, P.R. Laws Ann. tit.
29, §§ 185, et seq.
Not so fast, said AT&T. It entered a special appearance
and moved to stay the proceedings and compel arbitration, reminding
Rivera that she agreed to arbitrate these kinds of claims, not
bring them in court. So AT&T asked the court to force Rivera to
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go to arbitration, thus stripping the district court of
jurisdiction to hear the merits of the case. To support this
result, AT&T submitted hundreds of pages of affidavits and exhibits
to show that Rivera read the agreement and didn't opt out, and
therefore accepted it.
Determined to stay where she was, Rivera opposed AT&T's
attempt to push her into arbitration, maintaining that there was
no valid arbitration agreement to begin with. She argued that
Puerto Rico law requires acceptance of a contract, and that her
mere failure to opt out can't meet the acceptance standard under
the Commonwealth's laws.
Rejecting Rivera's contentions, the district court
agreed with AT&T and said the arbitration agreement was
enforceable. See Rivera-Colón v. AT&T Mobility P.R., Inc., 261
F. Supp. 3d 251, 256 (D.P.R. 2017). The judge looked to AT&T's
submitted evidence, which showed that Rivera received the emails
notifying her of the arbitration agreement and that she
acknowledged that she read the agreement. And, given that
evidence, the judge thought it clear that "AT&T gave [Rivera]
explicit notice that all disputes would be solved by arbitration"
so he granted AT&T's motion to compel arbitration and dismissed
Rivera's suit.5 See id. at 255-56.
5 Although AT&T moved to stay the proceedings pending
arbitration of the claims, the district judge elected to dismiss
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Clinging to the assertions she advanced below, and
repeats here on appeal, Rivera says the district court got it all
wrong and asks us to reverse and give her the green light to
litigate her claims in court.
DISCUSSION
A. Standard of Review
Generally, we review an order compelling arbitration on
a spectrum of interwoven standards. At one end, when the appeal
raises "solely legal issues as to the enforceability of an
arbitration clause," we look at it with a clean slate, or de novo.
Pelletier v. Yellow Transp., Inc., 549 F.3d 578, 580 (1st Cir.
2008); see also Britto v. Prospect Chartercare SJHSRI, LLC, 909
F.3d 506, 511 (1st Cir. 2018) (explaining de novo review in this
context). The same de novo review applies when the facts
surrounding the agreement are undisputed and the only question is
whether they contractually bound themselves to arbitration on
those undisputed facts. See Cullinane v. Uber Techs., Inc., 893
F.3d 53, 60 (1st Cir. 2018).6 And given that the facts here are
the proceedings. See, e.g., Next Step Med. Co. v. Johnson &
Johnson Int'l, 619 F.3d 67, 71 (1st Cir. 2010) (noting that, in
this circuit, a district court has discretion "to dismiss the law
suit, if all claims asserted in the case are found arbitrable").
The parties do not appeal this exercise of discretion.
6 Although not applicable here, for the sake of thoroughness
we remind the careful reader that were the facts in dispute, we
would review the district court's determinations on a "sliding
scale." See Quint v. A.E. Staley Mfg. Co., 246 F.3d 11, 14 (1st
Cir. 2001). That is, "[t]he more the district court's conclusions
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undisputed the only question that remains is whether those facts
show that Rivera accepted the agreement as a matter of Puerto Rico
law. So, we review that determination of the district court de
novo. See Cullinane, 893 F.3d at 60. That means we don't give
any deference to the district court's conclusion and look at the
legal issues with clear eyes. See In re Extradition of Howard,
996 F.2d 1320, 1327 (1st Cir. 1993). And it also means that we
"can affirm on any ground appearing in the record--including one
that the [district] judge did not rely on." See Lang v. Wal-Mart
Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016) (citing Collazo-
Rosado v. Univ. of P.R., 765 F.3d 86, 91 (1st Cir. 2014)).
Bearing in mind this appellate lens, we return to the
legal issue before us.
B. A Primer on the Law
For reasons that will become clear in the next section,
a legal primer will help frame our discussion. So, we ask the
patient reader to bear with us as we lay it out.
With the Federal Arbitration Act ("FAA"), Congress set
a "liberal federal policy favoring arbitration." AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 346 (2011) (quoting Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)).
are characterized as factual conclusions, the more our review of
those facts is for clear error; the more the district court's
conclusions are conclusions of law, the more independent review we
give." Id.
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The FAA allows one party to an arbitration agreement to ask the
court to put the litigation on hold and force the other party to
arbitrate the disputes. See 9 U.S.C. § 4. At base, it respects
arbitration as "a matter of contract" between parties and doesn't
allow courts to jump in when the parties agreed to keep the courts
out of the mix. See Henry Schein, Inc. v. Archer & White Sales,
Inc., ____ S. Ct. ____, No. 17-1272, 2019 WL 122164, at *3 (U.S.
Jan. 8, 2019). It "places arbitration agreements on equal footing
with all other contracts," Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 443 (2006), which means that courts can invalidate
arbitration agreements only on the same "generally applicable
contract defense[]" grounds that would apply to all other
contracts, Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687
(1996).
But as a corollary to its contract-based philosophy, the
FAA's "liberal policy" is only triggered when the parties actually
agreed to arbitrate. It "does not require parties to arbitrate
when they have not agreed to do so." Volt Info. Scis., Inc. v.
Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478 (1989).
So, the existence of an enforceable agreement to arbitrate is the
first needed step to trigger the FAA's protective reach. See Nat'l
Fed'n of the Blind v. The Container Store, Inc., 904 F.3d 70, 80
(1st Cir. 2018) (noting that "a court should not compel arbitration
unless and until it determines that the parties entered into a
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validly formed and legally enforceable agreement covering the
underlying claims" (quoting Escobar-Noble v. Luxury Hotels Int'l
of P.R., Inc., 680 F.3d 118, 121 (1st Cir. 2012))). And the party
seeking to compel arbitration (here, that's AT&T) bears the burden
of clearing that hurdle and "demonstrat[ing] that a valid agreement
to arbitrate exists." Soto-Fonalledas v. Ritz-Carlton San Juan
Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011) (quoting
InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003))
(internal quotation marks omitted).
Because arbitration is a creature of contract,
"principles of state contract law control the determination of
whether a valid agreement to arbitrate exists." Id. at 475
(quoting Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546,
552 (1st Cir. 2005)). Rivera and AT&T assume that Puerto Rico law
applies--a rational choice we won't disturb here given that Rivera
was employed in the Commonwealth. See, e.g., Rodríguez v. United
States, 54 F.3d 41, 44 (1st Cir. 1995) (assuming that Puerto Rico
law applies when the parties assumed so and there was a "reasonable
relation" between the cause of action and Puerto Rico). So, if an
enforceable contract exists under Puerto Rico law, we must enforce
that agreement "save upon such grounds as exist at law or in equity
for the revocation of any contract," 9 U.S.C. § 2, and send the
parties off to arbitrate.
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This brings us to the skirmish the parties are waging
before us today. Put simply: if Rivera never agreed to arbitrate
her claims against AT&T, she's free to pursue them in court; but
if she did agree to arbitrate her claims against AT&T, she's bound
by her contract and she must resolve those claims through
arbitration. So, this is all we need to decide here. See Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (noting
that the FAA "mandates that district courts shall direct the
parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed"); see also Escobar-Noble,
680 F.3d at 122. The merits of her employment-based claims against
AT&T are left for another day, another umpire, and another ballpark
(whether judicial or arbitral).
C. The Arguments
Against this backdrop, the parties argue primarily over
the application of Puerto Rico contract law. Unsurprisingly, they
don't see eye to eye on how that law applies to the situation here.
Rivera argues there's no enforceable agreement to
arbitrate because she never accepted AT&T's unsolicited offer. As
best we can tell, she makes this omnibus argument in what breaks
down into three waves. First, according to her, Puerto Rico law
doesn't construe an offeree's silence or inaction as acceptance to
a contract offer when that offer was made at the offeror's sole
initiative. She says that there was no bargaining between her and
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AT&T about the arbitration agreement, so she had no obligation to
respond to say yes or no to its offer. And, she argues that under
Puerto Rico law, an offeror cannot impose on the offeree an
obligation to respond to an unsolicited offer. That is, if AT&T
makes an unsolicited offer, it can't force Rivera to respond and
say no, or to stipulate that her lack of response will be
interpreted as saying yes.
Wave two is a rebuttal point. She says that even if she
could accept with her silence, the facts here don't unequivocally
show her intent to accept the contract, so she didn't accept this
agreement. And in wave three, she adds two alternative arguments:
that this arbitration agreement is both a waiver of substantive
rights and a type of forum selection clause--both of which require
a heightened standard of acceptance under Puerto Rico law, which
can't be met here.
AT&T, for its part, says that Puerto Rico law permits
silence as an avenue to acceptance of a contract, although it
acknowledges that there's no Puerto Rico precedent directly on
point. But it says that under the limited precedent we have, the
facts of this case show that Rivera knew that her silence and
continued employment would constitute acceptance of the
arbitration agreement--and that her actions show that she
willfully accepted. It says that she acknowledged that she read
the provision that stipulated that her continued employment and
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failure to opt out of the agreement would constitute her
acceptance. And, her inaction coupled with her continued
employment shows that her conduct was informed and voluntary. So,
Rivera demonstrated her will to accept AT&T's offer, and is bound
by the arbitration agreement.
ANALYSIS
A. The Framework
To assess these arguments, we first must look to the
framework of Puerto Rico contract law, and note some guideposts of
Puerto Rico law that shape our analysis.
Puerto Rico is unique in many ways, its legal system
just one of them. As a civil law jurisdiction, "Puerto Rico
eschews common law principles of contract interpretation in favor
of its own civil code derived from Spanish law." Borschow Hosp.
& Med. Supplies v. Cesar Castillo Inc., 96 F.3d 10, 15 (1st Cir.
1996) (citing Guevara v. Dorsey Labs., Div. of Sandoz, Inc., 845
F.2d 364, 366 (1st Cir. 1988)). So we can't use stateside common
law to "fill[] gaps in the civil law system" unless the Civil Code
and the Supreme Court of Puerto Rico are silent on the issue.
Guevara, 845 F.2d at 366 (citing Valle v. Am. Int'l Ins. Co., 108
D.P.R. 692, 696-97, 8 P.R. Offic. Trans. 735 (1979)). We turn
first to those sources.
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To form a valid contract under Puerto Rico law, both
parties must consent to it. See P.R. Laws Ann. tit. 31, § 3391.7
That consent "is shown by the concurrence of the offer and
acceptance of the thing and the cause which are to constitute the
contract." P.R. Laws Ann. tit. 31, § 3401. In simple terms:
"acceptance of an offer is . . . the normal procedure to perfect
a contract." Producciones Tommy Muñiz Inc. v. Comité Organizador
de Los VIII Panamericanos (COPAN), 113 D.P.R. 517, 13 P.R. Offic.
Trans. 664, 670 (1982). But "[c]onsent given by error, under
violence, by intimidation, or deceit shall be void." P.R. Laws
Ann. tit. 31, § 3404; see also Dialysis Access Ctr., LLC v. RMS
Lifeline, Inc., 638 F.3d 367, 378 (1st Cir. 2011) (discussing how
consent may be void under Puerto Rico law).
This case presents a twist on the normal question,
though. In the more typical case, the employee accepts the
contract by signing on the dotted line, thus leaving little doubt
that she accepted the agreement. But we consider here whether
Rivera accepted the agreement by doing nothing--through her
inaction or silence.8
7
You also need to have "[a] definite object which may be the
subject of the contract," and "[t]he cause for the obligation which
may be established." P.R. Laws Ann. tit. 31, § 3391. But that's
not what the parties are arguing about here.
8 We note that AT&T doesn't argue that Rivera accepted the
agreement when she acknowledged that she read it. It says that
she accepted it when she did not opt out and continued to work.
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Although that brand of acceptance doesn't find its own
distinct provision in the Puerto Rican Civil Code, the Supreme
Court of Puerto Rico has recognized that not all acceptances are
in writing--implied consent to a contract is enough to meet the
Puerto Rico definition of acceptance. See Teachers Annuity & Ret.
Sys. v. Sociedad de Gananciales, 115 D.P.R. 277, 15 P.R. Offic.
Trans. 372, 386-87 (1984); see also Colón Gutiérrez v. Registrador,
114 D.P.R. 850, 14 P.R. Offic. Trans. 1095, 1110 (1983) (noting
that consent to an agreement can be given "expressly or
impliedly"). When it comes to this type of implied consent, "the
determining element . . . is the person's conduct and not the words
used to express such consent." Teachers Annuity & Ret. Sys., 115
D.P.R. 277, 15 P.R. Offic. Trans. at 387. That conduct "should
inequivocally [sic] show the will to consent," and the facts
"cannot be compatible with, another intent, or be subject to many
different interpretations." Id. 115 D.P.R. 277, 15 P.R. Offic.
Trans. at 387-88. And the party accepting must have "adequate
knowledge of the scope of [her] statement" to be able to adequately
evidence her consent. See Colón Gutiérrez, 114 D.P.R. 850, 14
P.R. Offic. Trans. at 1111. But on the precise question here
(whether silence is acceptance when the offeror conditions that it
will be), the Supreme Court of Puerto Rico has not spoken.
When the Civil Code and the Supreme Court of Puerto Rico
are silent on an issue, we may forgo the traditional prohibition
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on use of common law principles and "employ the common law in its
multiple and rich versions . . . as a point of reference for
comparative law." Valle, 108 D.P.R. 692, 8 P.R. Offic. Trans. at
738; see also Guevara, 845 F.2d at 366 (applying stateside common
law principles when "useful and persuasive" and when we "believe[d]
the Supreme Court of Puerto Rico would follow essentially the same
path"). That is particularly true when the Supreme Court of Puerto
Rico has, on a particular subject, "conformed its . . .
jurisprudence to common law principles." Rodríguez, 54 F.3d at
45. And in the contract-acceptance context, Puerto Rico law
"mimics the general law of contracts," Satellite Broad. Cable,
Inc. v. Telefónica de España, S.A., 807 F. Supp. 210, 216 (D.P.R.
1992), and operates in the same way as the "governing rule in the
United States," see COPAN, 113 D.P.R. 517, 13 P.R. Offic. Trans.
at 672 (referencing U.S. treatises Williston on Contracts and
Corbin on Contracts). Which is all a long explanation of why we
will, at times, look to those stateside treatise sources to fill
in the gap here.
B. Addressing Those Arguments
Wave I: Assessing Rivera's Intent in Silence
With that legal outline in mind, we turn to the core of
this case: do the (undisputed) facts unequivocally show that
Rivera manifested her intent to accept AT&T's arbitration
agreement?
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To tackle that question, we begin with a recount of one
of our prior cases, the closest we've gone to addressing an issue
like this under Puerto Rico law, which will prove instructive in
assessing the one before us now. In Marrero-García v. Irizzary,
33 F.3d 117 (1st Cir. 1994), we discussed a similar, albeit
distinct, issue. There, a utility company argued that residents
of a condominium complex impliedly accepted a contract to pay for
water services that the utility had already begun providing to
them. See 33 F.3d at 122. The utility company "repeatedly
requested the Condominium to place a bond and to register an
account," and informed the residents they needed to take these
actions to become "registered users."9 Id. But when the residents
never posted a bond or registered with the utility company, the
utility company set up an account for them and started sending
bills for water. The utility company then sued when the residents
refused to pay. We rejected the utility company's implied-
acceptance argument, holding that the residents' refusal to
register was not implied consent to the agreement to pay for water
services, but rather a rejection of that offer. And the key
takeaway we reap from this case is that "[a]n offeree's inaction
or 'silence in the face of the offer to sell goods is not ordinarily
an acceptance, because the offeror has no reason to believe from
9
The utility company didn't add a proviso deeming silence as
acceptance, like AT&T did here.
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the offeree's silence that the offeree promises to buy.'" Id.
(quoting Farnsworth on Contracts § 3.15).
To be sure, the facts of Rivera's case add a wrinkle to
a Marrero-García-style analysis: AT&T specified that Rivera's
silence would constitute acceptance. Rivera thinks this wrinkle
will cut in her direction. She's correct that it makes all the
difference here, but it makes all the difference in a way she
doesn't imagine: it is actually AT&T's stipulation of silence as
acceptance that tilts the scale away from Rivera's position, and
leads us to the opposite of the conclusion we reached in Marrero-
García. Let us explain.
Of course, as Rivera reminds us, it's basic contract law
that an offeror cannot unilaterally impose on another party the
obligation to respond and reject their offer. See, e.g., 1 Corbin
on Contracts § 3.19 (2018) ("It should here be plainly set forth
that an offeror has no power to cause the silence of the offeree
to operate as an acceptance when the offeree does not intend it to
do so."); 2 Williston on Contracts § 6:50 (4th ed. 1993) ("Merely
sending an unsolicited offer does not impose upon the party
receiving it any duty to speak or deprive the party of its
privilege of remaining silent without accepting."). But this
general statement of the law is just that--a generality. There
are, as always, exceptions. Indeed, the Restatement (which Rivera
cites in her brief) makes it clear that silence can operate as
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acceptance "[w]here the offeror has stated or given the offeree
reason to understand that assent may be manifested by silence or
inaction, and the offeree in remaining silent and inactive intends
to accept the offer." Restatement (Second) of Contracts
§ 69(1)(b); see also 2 Williston on Contracts § 6:53 ("If the
situation for any reason is such that a reasonable person would
construe silence as necessarily indicating assent, the offeree who
keeps silent, knowing that its silence will be misinterpreted,
should not be allowed to deny the natural interpretation of its
conduct."). This aligns with the notion in Puerto Rico that
"silence could imply the tacit acceptance of an offer when,
pursuant to a prior relationship between the parties, the
responsibility arises for the one receiving the offer to take
affirmative action to reject it." Danosa Caribbean, Inc. v.
Santiago Metal Mfg. Corp., 179 D.P.R. 40, No. CC-2008-882, slip
op. at 21 (2010) (Rodríguez Rodríguez, J., dissenting) (citing
Carlos Lasarte, 3 Principios del Derecho Civil 63 (4th ed. 1996)).10
And that's where the scale flips away from Rivera. AT&T
stipulated that if Rivera didn't opt out, it would take it as
though she opted in. Rivera acknowledged that she read that
provision (both here in litigation, and when she acknowledged that
10We requested that the parties file a certified translation
of this otherwise-untranslated case from the Supreme Court of
Puerto Rico.
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she read the agreement back in 2012). It was laid out nose-to-
face plain and simple in the emails AT&T sent her, as well as in
the arbitration agreement that she confirmed she received and read.
So, by acknowledging that she read that proviso, she actually gave
AT&T "reason to believe from [her] silence that [she] promise[d]"
to arbitrate her claims, unlike the residents in Marrero-García.
See 33 F.3d at 122 (quoting Farnsworth on Contracts § 3.15). Thus,
these facts evidence Rivera's intent to accept the agreement.
Wave II: Was That Intent Unequivocal?
So we move on to wave two of her argument: that even if
she could accept with her silence in these circumstances,11 the
facts here don't unequivocally show her intent to accept the
contract.
Under Puerto Rico law, the facts "should inequivocally
[sic] show the will to consent . . . [and] cannot be compatible
with, another intent, or be subject to many different
interpretations." Teachers Annuity & Ret. Sys., 115 D.P.R. 277,
15 P.R. Offic. Trans. at 387-88. Rivera (quite obviously) argues
that her actions here don't unequivocally show her will to consent.
Her position is twofold. First, she says that "there is no
scintilla of evidence on the record that [she] ever intended to
accept the offer. In fact, the opposite holds true. When [AT&T]
11
Indeed, Rivera acknowledges that silence can, "in certain
circumstances," constitute acceptance.
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attempted to enforce the 'contract,' [she] opposed." And second
is that the facts only show that she "acknowledge[d] having
reviewed the document"; not that she intended to accept it.
Addressing these arguments in turn, they both fail.
First, her objection to arbitration when this litigation
commenced in 2017 has no bearing on whether she manifested her
intent to accept the agreement back in 2012. We say that for two
reasons: one legal and one logical. On the legal side, it doesn't
carry weight because it misses the operative timeframe for
assessing her intent. It's basic Puerto Rico contract law that
contracts are formed and valid "from the moment" consent is given.
See P.R. Laws Ann. tit. 31, §§ 3371, 3375. So, the question is
whether she manifested her intent to accept the agreement way back
in 2012 when she didn't opt out; not what happened in 2017. Which
is all to say that this argument doesn't get her anywhere. And
that's not to mention that the logical side of her argument is
baffling. Disputes of this sort arise in litigation precisely
because a party later disputes whether they intended to accept a
contract. So, if a party's later disavowment of their intent to
accept a contract bore any decisive weight (as Rivera seems to
suggest it should), it would make analysis unnecessary. This would
make the cases we just discussed pure excess--which they are not.
Cf. generally Teachers Annuity & Ret. Sys., 115 D.P.R. 277, 15
P.R. Offic. Trans. at 387-88 (looking to the facts at the time of
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the purported contract formation to determine if implied consent
existed even though the party later disputed their consent in
litigation); Cemex De P.R., Inc. v. Ductor, Inc., No. CIV.A. 09-
2254 (GAG), 2010 WL 1727834, at *1 (D.P.R. Apr. 26, 2010) (finding
that plaintiff sufficiently alleged implied consent even when the
party later disputed the consent during litigation).
And her second argument (that her intent in clicking the
review completed button was to show only that she acknowledged
reading the agreement)12 is even more troubling and actually self-
defeating. Again, it is critical to note that Rivera doesn't
attempt to say that she didn't know her silence would be treated
as opting in. Instead of confronting this head on, though, her
argument tries to leapfrog over her contractual obligations by
relying on a general rule that AT&T couldn't make her respond.13
12 In the same vein of this argument, Rivera also proposes a
new standard we should apply. She says that if AT&T wanted an
arbitration agreement with her, it should have made it so that she
"would have taken affirmative steps to clearly and unmistakenly
[sic] affirm her intent to be bound by an agreement to arbitrate."
But imposing that requirement would force us to ignore the Supreme
Court of Puerto Rico's clear instruction that a contract can be
formed with implied consent. See generally Teachers Annuity &
Ret. Sys., 115 D.P.R. 277, 15 P.R. Offic. Trans. 372. And we
cannot do so. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84
(1983) ("[T]he views of the state's highest court with respect to
state law are binding on the federal courts."); Rochester Lincoln-
Mercury, Inc. v. Ford Motor Co., 248 F.3d 46, 48 (1st Cir. 2001)
(same).
13 To support this argument, Rivera provides us with one- or
two-sentence excerpts from three Spanish commentators about
silence as a mode of acceptance under the Spanish Civil Code.
Initially, the translations were made only by her counsel, which
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But this argument strikes out just as quickly as the first, because
it glances over the exception (rooted in notions of good faith)
that aims to root out the type of maneuvers she's trying to make
here: "the offeree who keeps silent, knowing that [her] silence
will be misinterpreted, should not be allowed to deny the natural
interpretation of [her] conduct." 2 Williston on Contracts § 6:53.
That exception is especially pertinent in situations
like this (just as the Restatement, Corbin, and Williston have
noted14), where "given a certain relationship between two people,
the current way of proceeding implies the duty to speak." Danosa
was out of compliance with our Local Rule requiring certified
translations of Spanish documents. See 1st Cir. Local R. 30.0(e).
In her reply brief, Rivera provided certified translations of those
three snippets, but not the broader context from which they came.
And, as we've said in the past, isolated excerpts from treatises
not translated into English are not useful support. See, e.g.,
United States v. Ramos-González, 775 F.3d 483, 505 & n.26 (1st
Cir. 2015) (noting that a counsel-translated sentence from a
Spanish-language treatise on Puerto Rico's penal code, not
otherwise available in English, is not "useful support" for an
argument). Especially given the potential for these excerpts to
be read out of context, we decline to use them here.
14 See Restatement (Second) of Contracts § 69(1)(c) (noting
the exception where silence is acceptance "because of previous
dealings or otherwise, it is reasonable that the offeree should
notify the offeror if he does not intend to accept"); 1 Corbin on
Contracts § 3.18 ("Often, however, silence coupled with conduct or
with expectations engendered by a prior relationship can
reasonably be understood by the offeror as an acceptance."); 2
Williston on Contracts § 6:50 (noting that "the relationship
between the parties or other circumstances surrounding the
transaction may be such as to justify the offeror in expecting a
reply, and, therefore, in assuming that silence in fact does
indicate assent to its proposal").
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Caribbean, 179 D.P.R. 40, slip op. at 21 (Rodríguez Rodríguez, J.,
dissenting) (quoting Lasarte, 3 Principios del Derecho Civil 63).
Unlike the unsolicited offer-by-mail to which Rivera
tries to liken this case, this wasn't an offer made by a stranger.
Rivera and AT&T were engaged in a long-standing, close legal
relationship as employee and employer. That relationship--one in
which AT&T and its employees regularly communicated company
business with one another via email15--implicates Rivera's
knowledge that she had the duty to speak and that her choice not
to would be reasonably interpreted by AT&T as acceptance. Cf.
Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1109 (9th Cir.
2002) (O'Scannlain, J.) (noting in a very similar context under
California law that the employee and employer "were not two typical
parties contracting at arm's length," and that the employee had a
responsibility to affirmatively opt out if he didn't want to
accept). And when "the one who can and should speak does not do
so, it must be deemed that [s]he consents for the sake of good
faith . . . because in such cases, it is natural and normal to
manifest dissent." Danosa Caribbean, 179 D.P.R. 40, slip op. at
21 (Rodríguez Rodríguez, J., dissenting) (emphasis added) (quoting
Lasarte, 3 Principios del Derecho Civil 63). So absent her
dissent, the natural interpretation of her conduct is that she
15
AT&T communicated at least twenty corporate policies to its
employees in the year prior to the arbitration proposal.
- 27 -
accepted. And that must stand. Thus, we agree with the district
court that Rivera impliedly accepted this arbitration agreement
and is bound by it.
Wave III: A Heightened Standard of Acceptance
But wait, Rivera has two alternative arguments to try to
steer us back to her side. She calls this agreement both a waiver
of substantive rights and a forum selection clause. And she
contends that under Puerto Rico law, this means that a heightened
standard of acceptance should apply to the agreement. That is,
standard modes of consent aren't enough to accept this type of
agreement. But unfortunately for Rivera, these arguments don't
move the needle in her direction.
First, she argues that a heightened standard of contract
acceptance should apply here because the agreement is a waiver of
a substantive right (the substantive right being her right to a
jury trial). And, under Puerto Rico law, "such renunciation[s] of
rights . . . must be clear, conclusive, express, and unequivocal."
Quiñones Quiñones v. Quiñones Irizarry, 91 D.P.R. 225, 91 P.R.R.
217, 257 (1964).
But even assuming she waived a substantive right with
this agreement--and a jury trial is decidedly a procedural right,
see, e.g., Libretti v. United States, 516 U.S. 29, 53-54 (1995)
(Souter, J., concurring) (recognizing the right to a jury trial is
a procedural right)--her argument smacks up against one of the
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core principles of the FAA: a state (or territory) cannot apply
any standard to an arbitration agreement that it does not apply to
contracts in general, see Soto v. State Indus. Prods., Inc., 642
F.3d 67, 74 (1st Cir. 2011) ("[W]hile Puerto Rico may impose
special restrictions on noncompetition agreements, it is preempted
from imposing special restrictions on arbitration agreements.");
see also Doctor's Assocs., Inc., 517 U.S. at 687 (noting that with
the FAA, "Congress precluded States from singling out arbitration
provisions for suspect status, requiring instead that such
provisions be placed 'upon the same footing as other contracts'").
And that Supreme Court command also torpedoes her second
argument that this supposed "forum selection" agreement16
manifesting as an arbitration agreement can be void for public
policy. She says that in Puerto Rico, forum selection agreements
are unenforceable if: "(1) they were not freely negotiated or
were the result of overweening bargaining power; or (2) they
contravene a strong public policy." But again, even assuming for
the sake of argument that Rivera can meet one of these grounds,
under the FAA's protective grasp, an arbitration agreement can be
voided only on "generally applicable contract defense[]" grounds
that would apply to all other contracts. Doctor's Assocs., Inc.,
16 By this, we mean an agreement between parties specifying
where they'll duke out their legal disputes. See, e.g., Marra v.
Papandreou, 216 F.3d 1119, 1123 (D.C. Cir. 2000).
- 29 -
517 U.S. at 687. And although Puerto Rico can hold forum selection
clauses to a higher standard, it "is preempted from imposing
special restrictions on arbitration agreements." See Soto, 642
F.3d at 74. So her final argument falls flat.
C. Postscript
Before we sum up, we add one last point. The careful
reader will notice that we reach our ultimate conclusion on the
key issue here (whether Rivera impliedly consented to the
arbitration agreement) under a different legal standard than the
district court.17 And on that subject, we add a postscript.
The district court judge said the focal point of the
legal question was "whether AT&T gave [Rivera] explicit notice
that all disputes would be solved by arbitration." Rivera-Colón,
261 F. Supp. 3d at 256 (citing García-Clara v. AIG Ins. Co. P.R.,
No. CV 15-1784CCC, 2016 WL 1261058 (D.P.R. 2016)). That test, in
our view, misses the point. The contract formation question here
is whether Rivera accepted the contract--not whether she was merely
on notice of the contract's existence.
The district court (and the García-Clara court on which
it relied) seems to have misconstrued our holdings in Campbell v.
General Dynamics Government Systems Corp., 407 F.3d 546 (1st Cir.
17Again, we're free to take this different route under de
novo review because we're free to "affirm on any ground appearing
in the record--including one that the [district court] judge did
not rely on." Lang, 813 F.3d at 454.
- 30 -
2005), and Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 170 F.3d 1 (1st Cir. 1999). In those cases, the question
was, in fact, one of notice. They turned on whether the employer
gave the employees sufficient notice that certain statutory claims
(those under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq.) would be covered under an arbitration agreement.
And that was so important because the ADA has a specific provision
that limits arbitration of claims to situations when it would be
"appropriate." See 42 U.S.C. § 12212. So that was relevant to
the arbitrability of the particular claims at issue there, not the
arbitrability of all claims under the sun. But here, the parties
don't dispute that the particular claims are arbitrable. The only
question is whether a valid arbitration agreement existed in the
first place, which means that the question is one of contract
acceptance--not notice. See Campbell, 407 F.3d at 554 (explaining
that the questions of whether there was a valid arbitration
agreement and whether the parties had notice that ADA claims were
covered under it were "independent, yet overlapping, issues").
WRAP-UP
Our work done, and finding, as we do, that the district
court got the outcome right, we affirm the order compelling
arbitration. Costs to appellees. See Fed. R. App. P. 39(a)(2).
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