Theis v. Aflac, Inc.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GERALD THEIS, Jr., No. 24-3509 D.C. No. Plaintiff - Appellant, 1:20-cv-00011-SPW v. MEMORANDUM* AFLAC, INC., Defendant - Appellee. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Submitted March 24, 2025** Seattle, Washington Before: McKEOWN and OWENS, Circuit Judges, and KENDALL, District Judge.*** Gerald Theis, Jr. seeks review of the district court’s order granting Aflac, Inc.’s motion to compel arbitration. The arbitration has concluded, and the district * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. court has dismissed Theis’s action. We have jurisdiction under 28 U.S.C. § 1291. Sanford v. MemberWorks, Inc., 483 F.3d 956, 961 (9th Cir. 2007). We review de novo a district court’s decision to grant or deny a motion to compel arbitration. Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152 (9th Cir. 2004). We affirm. In granting the motion, the district court applied the multi-factor test articulated by the Montana Supreme Court for determining the unconscionability of arbitration provisions. Kloss v. Edward D. Jones & Co., 54 P.3d 1, 15 (Mont. 2002) (Nelson, J., concurring); Kortum-Managhan v. Herbergers NBGL, 204 P.3d 693, 699 (Mont. 2009); Lenz v. FSC Secs. Corp., 414 P.3d 1262, 1276–77 (Mont. 2018). This test applies to arbitration agreements in both commercial and employment contexts. See Lenz, 414 P.3d at 1276 (commercial); Bucy v. Edward Jones & Co., L.P., 445 P.3d 812, 823 (Mont. 2019) (employment). In the absence of evidence that fee-splitting provisions are contrary to the public policy of the state of Montana, Theis provides no reason to replace this fact-dependent test with a per se rule for such provisions. We conclude that the district court did not err in applying this test to the fee-splitting provision that Theis challenged as unconscionable. Because the Montana Supreme Court has already articulated a test to assess the unconscionability of arbitration provisions, we decline to certify Theis’s 2 24-3509 question to that court. We decline to address Theis’s argument that, if the Kortum / Lenz test were applied to his case, the fee-splitting provision would fail that test. He failed to make that argument below, and so we will not consider it on appeal. See G & G Prods. LLC v. Rusic, 902 F.3d 940, 950 (9th Cir. 2018). AFFIRMED. 3 24-3509