         Case: 18-11869   Date Filed: 01/07/2019   Page: 1 of 17


                                                    [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-11869
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 4:17-cv-00246-CDL



AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS,

                                            Plaintiff - Appellee,

versus

TROY HUBBARD,
MARCUS JOHNSON,
ANIBAL ALCANTARA,
DEBBIE CORT,
GARARD MCCARTHY,
JULIO LEATY,
MARTIN CONROY,

                                            Defendants - Appellants.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Georgia
                    ________________________

                           (January 7, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      This appeal requires us to consider whether the district court erred in

compelling a group of independent contractors (the “associates”) to arbitrate their

claims against American Family Life Assurance Company of Columbus (“Aflac”).

The associates agreed in a contract to arbitrate their claims against Aflac but now

contend that the terms of the arbitration agreement are unconscionable and thus

unenforceable. After careful consideration, we conclude that the associates failed

to demonstrate that the arbitration agreement is unenforceable. We affirm.

                         I.    FACTUAL BACKGROUND

A.    Aflac Requires Its Associates to Arbitrate Disputes

      Aflac markets and sells supplemental insurance products through its sales

force of independent agents, whom it refers to as associates. Before an associate

can solicit applications for Aflac products, she must execute a written “Associate’s

Agreement,” which governs the terms of her relationship with Aflac.

      The Associate’s Agreement requires arbitration of many disputes that arise

under the agreement. The Associate’s Agreement provides:

      Except for an action by Aflac to enforce the provisions contained in
      Paragraphs 1.4, 3, 8, 10.5 or 10.6, the parties agree that any dispute
      arising under or related in any way to this Agreement (“Dispute”), to
      the maximum extent allowed under the Federal Arbitration Act
      (“FAA”), shall be subject to mandatory and binding arbitration,
      including any Dispute arising under federal, state or local laws, statutes
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      or ordinances . . . or arising under federal or state common law . . . .
      THE PARTIES WAIVE ANY RIGHT TO TRIAL BY A JURY IN A
      COURT OF LAW TO RESOLVE ANY DISPUTE.

Doc. 7-2 at 21. 1 An associate also must arbitrate claims against Aflac’s officers,

stockholders, or employees that arise under or are related to the Associate’s

Agreement. The signature page of the Associate’s Agreement prominently

indicates that the agreement contains a mandatory arbitration provision: “THIS

CONTRACT CONTAINS AN ARBITRATION AGREEMENT WHICH MAY

BE ENFORCED BY THE PARTIES.” Id. at 25.

      The arbitration provision sets forth procedures governing the arbitration. It

specifies that the arbitration will be held before a panel of three arbitrators. Each

party is permitted to name a party arbitrator, who is not required to be neutral. The

two party arbitrators then appoint a neutral person to serve as the third arbitrator

and chair the arbitration. The arbitration provision also provides for individualized

arbitration: “There shall be no consolidation of claims or class actions without the

consent of all parties.” Id. at 22. Upon request by either party, the “rulings and

decisions of the arbitrators” must “be kept strictly confidential.” Id.

      The arbitration provision also permits either party to bring an action to

enforce the arbitration requirement. Aflac is expressly allowed to bring such an




      1
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.

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action “in any federal or state court in the State of Georgia,” and the associate

consents to submit to personal jurisdiction and venue in such court. Id. The

arbitration provision also requires that “all papers filed in court in connection with

any action to enforce” the Arbitration Agreement must “be filed under seal.” Id.

      The arbitration provision also addresses how the parties will divide the costs

of the arbitration. Each party is required to pay the expenses and fees for its party

arbitrator. Aflac pays the expenses and fees of the neutral arbitrator unless the

associate requests to divide those expenses and fees.

B.    After Learning that a Group of Associates Was Planning to Sue, Aflac
      Files an Action to Compel Arbitration

      The associates allege that Aflac made misrepresentations when it recruited

them to sell Aflac’s products and also improperly classified them as independent

contractors in violation of a number of federal and state laws. The associates

planned to sue Aflac in federal court and bring a class action.

      When Aflac learned of the associates’ plan to sue, it filed a complaint in

Georgia state court seeking to compel arbitration. Along with its complaint, Aflac

filed a motion to compel arbitration and a motion seeking a temporary restraining

order to enjoin the associates from filing or commencing an action against Aflac.

The state court entered an order that temporarily barred the associates from

commencing an action against Aflac pending resolution of the motion to compel

arbitration. Despite the term in the arbitration provision requiring that papers
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connected with an action to enforce the arbitration provision be filed under seal,

Aflac did not initially file its complaint or its motions under seal. When the

associates pointed out this deficiency, Aflac moved to seal the papers.

       Before the state court could hold a hearing on Aflac’s motion to compel

arbitration, the associates removed the case to federal court, contending that

subject matter jurisdiction existed because there was complete diversity of

citizenship and the amount in controversy exceeded $75,000. The associates

submitted a brief opposing Aflac’s motion to compel arbitration. The associates’

primary argument was that Aflac waived any right to enforce the arbitration

provision when it failed to file its papers in state court under seal as required by the

arbitration provision. In a footnote, the associates raised other arguments why the

arbitration provision was unenforceable, including that it improperly required

associates to submit to individualized proceedings and barred class claims. 2 In the

footnote, the associates also argued that the arbitration provision was

unenforceable because it was procedurally and substantively unconscionable.

Their arguments about unconscionability included that: (1) the associates had no

opportunity to review the arbitration provision before executing the Associate’s



       2
         The United States Supreme Court subsequently decided that arbitration agreements
requiring individualized actions were enforceable under the Federal Arbitration Act because
“Congress has instructed federal courts to enforce arbitration agreements according to their
terms—including terms providing for individualized proceedings.” Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1619 (2018).
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Agreement, (2) the arbitration provision was one-sided because it required

associates to arbitrate all claims against Aflac yet permitted Aflac to sue associates

in court, and (3) the costs of arbitration were so great that the provision effectively

denied the associates a forum for bringing their claims. The associates submitted

no evidence regarding the circumstances under which any of the associates signed

the Associate’s Agreement, what costs the associates expected to incur in the

arbitration, or whether any of the associates were unable to afford these costs.

      At a hearing on the motion to compel arbitration, the associates continued to

argue that Aflac waived its right to enforce the provision because it failed to file its

papers in the case under seal. They also repeated the arguments from their brief

about why the arbitration provision was procedurally and substantively

unconscionable. The associates presented no evidence at the hearing to support

their unconscionability arguments and conceded that there was sufficient evidence

before the court for it to rule on the motion to compel arbitration.

      The district court entered an order granting Aflac’s motion and compelling

the associates to arbitrate their claims. The court determined that the arbitration

provision in the Associate’s Agreement was enforceable and that Aflac had not

waived its right to arbitrate. The court also explained that the arbitration provision

was not unconscionable. The next day the court entered a final judgment

dismissing the case.

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C.    The Associates Seek Reconsideration and Submit New Evidence

      The associates moved for reconsideration, again arguing that the arbitration

provision was procedurally and substantively unconscionable. They asserted that

the arbitration provision was unconscionable because (1) the associates had no

reasonable opportunity to understand the terms of the arbitration provision before

executing the Associate’s Agreement, (2) the terms of the arbitration provision

were one-sided, (3) the requirement that the associates pay certain fees and

expenses made arbitration cost prohibitive and deprived the associates of a neutral

forum, and (4) the requirement that the associates keep confidential any arbitration

decision gave an unfair informational advantage to Aflac. To support their

position, some associates submitted affidavits detailing that they had no

meaningful opportunity to review the Associate’s Agreement before signing it and

that they could not afford to pay the party arbitrator’s fees. The associates also

cited a law review article discussing the average fees involved in arbitrations. The

district court denied the motion for reconsideration, explaining that it would not

consider the associates’ new evidence, which was available to the associates when

they filed their opposition to Aflac’s motion to compel arbitration.

      The associates then filed a notice of appeal. The notice stated that the

associates were appealing the order denying their motion for reconsideration as

well as the district court’s final judgment.

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                        II.     STANDARDS OF REVIEW

      We review de novo a district court’s order to compel arbitration. Caley v.

Gulfstream Aerospace Corp., 428 F.3d 1359, 1368 n.6 (11th Cir. 2005). We

review for abuse of discretion a district court’s denial of a Rule 59 motion to alter

or amend a judgment. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th

Cir. 2009). A court abuses its discretion if it makes “a clear error of judgment” or

applies “an incorrect legal standard.” Peat, Inc. v. Vanguard Research, Inc.,

378 F.3d 1154, 1159 (11th Cir. 2004) (internal quotation marks omitted).

                              III.     LEGAL ANALYSIS

      The validity of an arbitration agreement is generally governed by the Federal

Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq. Under the FAA, “[a] written

provision in . . . a contract evidencing a transaction involving commerce to settle

by arbitration a controversy thereafter arising out of such contract or transaction

. . . 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. “The purpose of

the FAA is to give arbitration agreements the same force and effect as other

contracts.” Caley, 428 F.3d at 1367-68. An agreement to arbitrate “may be held

unenforceable, however, if, under the controlling state law of contracts, requiring

arbitration of a dispute would be unconscionable.” Cappuccitti v. DirecTV, Inc.,

623 F.3d 1118, 1123-24 (11th Cir. 2010).

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      Here, there is no dispute that each associate signed an Associate’s

Agreement, which included an arbitration provision, and that the claims the

associates sought to bring against Aflac would fall within the scope of the

provision. The associates nevertheless argue that they should not be required to

arbitrate because the arbitration provision is unconscionable under Georgia law. 3

      Under Georgia law an unconscionable agreement is one that “no sane man

not acting under a delusion would make, and that no honest man would take

advantage of.” Jones v. Waffle House, Inc., 866 F.3d 1257, 1265 (11th Cir. 2017)

(quoting R.L. Kimsey Cotton Co. v. Ferguson, 214 S.E.2d 360, 363 (Ga. 1975)).

“Georgia law divides unconscionability into procedural and substantive elements.”

Id. “Procedural unconscionability addresses the process of making the contract,

while substantive unconscionability looks to the contractual terms themselves.” Id.

(internal quotation marks omitted).

      Before addressing the associates’ arguments about unconscionability, we

note that we are considering only the arguments the associates made and the

evidence they presented in their opposition to the motion compel arbitration and at

the hearing on that motion. We do not consider the new evidence and arguments

that the associated raised in their motion for reconsideration because, when the

district court denied the motion for reconsideration, it did not consider the


      3
          The parties agree that Georgia supplies the relevant state law.
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associates’ new arguments and evidence on the ground that the associates could

have submitted the evidence and raised the arguments in opposition to Aflac’s

motion to compel. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)

(holding that when “a party attempts to introduce previously unsubmitted evidence

on a motion to reconsider, the court should not grant the motion absent some

showing that the evidence was not available during the pendency of the motion”).

       On appeal, the associates have raised no argument that the district court

abused its discretion when it refused to consider the new evidence they submitted

with their motion for reconsideration. The associates thus have abandoned any

argument that the district court erred in refusing to consider such evidence. See

Access Now, Inc., v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)

(recognizing that if an argument is not briefed on appeal that “evaluating its merits

would be improper”). We thus focus our analysis on whether the district court

erred when it granted Aflac’s original motion to compel arbitration.4



       4
         Aflac claims that we lack jurisdiction to review the district court’s initial order
compelling arbitration because the associates’ notice of appeal gave no indication that they were
appealing that order. We disagree. Under the Federal Rules of Appellate Procedure, a notice of
appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.
3(c)(1)(B). We “liberally construe” this requirement, meaning that “an appeal is not lost if a
mistake is made in designating the judgment appealed from where it is clear that the overriding
intent was effectively to appeal.” KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260
(11th Cir. 2006) (internal quotation marks omitted). We thus have allowed “appeals from orders
not expressly designated in the notice of appeal, at least where the order that was not designated
was entered prior to or contemporaneously with the order(s) properly designated in the notice of
appeal.” McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986). Here, the associates’
notice of appeal identified the district court’s final judgment and the order denying the motion
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A.     The Associates Failed to Establish that the Arbitration Provision is
       Procedurally Unconscionable.

       The associates first argue that the district court erred in compelling

arbitration because the arbitration provision is procedurally unconscionable. Their

argument is based on the assertion that “Aflac did not give [the associates] any

reasonable opportunity to review the contractual terms, much less to understand

them.” Appellants’ Br. at 15. We cannot say that the district court erred in

granting the motion to compel, though, because the associates failed to submit any

evidence regarding the circumstances under which any of them reviewed the terms

of the Associate’s Agreement. 5

       To determine whether a contract is procedurally unconscionable, Georgia

courts consider various factors including the parties’ “relative bargaining power,

the conspicuousness and comprehensibility of the contract language, . . . and the

presence or absence of a meaningful choice.” NEC Techs., Inc. v. Nelson,

478 S.E.2d 769, 771-72 (Ga. 1996). The associates had the opportunity to submit



for reconsideration. By identifying the district court’s final judgment, the associates indicated
that they intended to appeal the district court’s order granting Aflac’s motion to compel, which
the district court had entered just one day earlier. We therefore have jurisdiction to review the
district court’s initial order compelling arbitration.
       5
          Aflac argues that the associates waived the procedural unconscionability argument
because they failed to raise it in their opposition to Aflac’s motion to compel arbitration. The
record does not support Aflac’s position, however. Although the associates could have more
artfully presented their position in the district court, they argued that the arbitration provision
was procedurally unconscionable in their opposition to Aflac’s motion to compel and at the
hearing before the district court.
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evidence about the circumstances surrounding their review of the arbitration

provision both when they filed their brief opposing the motion to compel

arbitration and at the hearing on the motion. But they chose to submit no evidence

to support their claim that they were denied a reasonable opportunity to review the

terms of the arbitration provision. True, with the motion for reconsideration some

of the associates submitted affidavits addressing the amount of time they had to

review the Associate’s Agreement before signing it. But this evidence cannot

establish that the district court erred when it granted the motion to compel

arbitration because the affidavits were not before the court at that point. Given the

absence of any evidence in the record when the court granted the motion to

compel, the associates failed to establish that the arbitration provision is

procedurally unconscionable.

B.    The Associates Failed to Establish that the Arbitration Provision is
      Substantively Unconscionable.

      The associates next argue that the district court erred in compelling

arbitration because the arbitration provision is substantively unconscionable. They

argue three reasons why the arbitration provision is substantively unconscionable:

(1) its terms did not impose mutual obligations to arbitrate on Aflac and the

associates, (2) its cost sharing requirement effectively precluded the associates

from vindicating their rights in an arbitral forum, and (3) its requirement to keep



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confidential any decision of an arbitrator gave Aflac an unfair informational

advantage. We are unpersuaded.

      First, we consider the associates’ argument that the arbitration provision is

substantively unconscionable because it did not impose mutual obligations to

arbitrate. The associates point out that the arbitration provision required associates

to arbitrate all potential claims against Aflac but did not impose a reciprocal

obligation on Aflac.

      We must reject the associates’ argument that this lack of mutuality rendered

the agreement substantively unconscionable. We have previously held that under

Georgia law “an arbitration provision is not unconscionable because it lacks

mutuality of remedy.’” Caley, 428 F.3d at 1378 (alterations adopted) (internal

quotation marks omitted); accord Crawford v. Great Am. Cash Advance, Inc.,

644 S.E.2d 522, 525 (Ga. 2007). We are bound by our earlier decision in Caley

because “our prior panel precedent rule still applies even when we are dealing with

state law issues.” World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d

950, 957 (11th Cir. 2009). “[W]hen we have issued a precedential decision

interpreting . . . state law, our prior precedent rule requires that we follow that

decision, absent a later decision by the state appellate court casting doubt on our

interpretation of that law.” EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of




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Am., 845 F.3d 1099, 1105 (11th Cir. 2017). The associates have identified no

Georgia decision casting doubt on Caley, so we remain bound to follow it.

        Second, the associates assert that the arbitration provision is substantively

unconscionable because it required the associates to pay the expenses and fees for

their party arbitrator. The associates argue that this cost-sharing requirement

rendered arbitration so expensive that it precluded them from effectively

vindicating their rights. 6

        We assume for our purposes here that an arbitration agreement could be

substantively unconscionable if it imposed such great arbitration costs that it

effectively denied a party an opportunity to vindicate her rights in the arbitral

forum. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000)

(observing that “the existence of large arbitration costs could preclude a litigant . . .

from effectively vindicating her federal statutory rights in the arbitral forum”). A

party seeking “to invalidate an arbitration agreement on the ground that arbitration

would be prohibitively expensive . . . bears the burden of showing the likelihood of

incurring such costs.” Id. To establish that “the cost of arbitration is prohibitively

expensive,” a party “must present evidence of two things: (1) the amount of the




        6
           Aflac argues that the associates waived the argument about cost sharing by failing to
raise it in the district court. But the record shows, to the contrary, that the associates raised this
argument to the district court in their brief in opposition to the motion to compel and at the
hearing.
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fees he is likely to incur; and (2) his inability to pay those fees.” Escobar v.

Celebration Cruise Operator, Inc., 805 F.3d 1279, 1291 (11th Cir. 2015) (internal

quotation marks omitted). We have warned that “[s]peculative fear of high fees is

insufficient.” Id.

      The associates failed to carry their burden of showing that they were likely

to incur prohibitively expensive costs. We acknowledge that the associates will

incur some fees in arbitration because they must cover their party arbitrator’s fees

and expenses. But the associates failed to establish that these fees and expenses

would be prohibitively expensive. When the court decided the motion to compel

arbitration, the associates had introduced no evidence regarding the amount of fees

and expenses that they were likely to incur in the arbitration and no evidence

showing that any associate would be unable to pay those fees and expenses. In the

absence of such evidence, the associates failed to carry their burden to show that

the arbitration is prohibitively expensive. See id. at 1292 (holding that employee

who was responsible for half the cost of arbitration failed to carry his burden of

proving that arbitration was prohibitively expensive when he introduced no

evidence or authority establishing the expected cost of the arbitration).

      The associates’ final argument is that the arbitration provision is

unconscionable due to its confidentiality provision. The associates waived this

argument, however, because they failed to raise it in their opposition to the motion

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to compel arbitration or at the hearing on the motion. See Access Now, 385 F.3d at

1331 (“[A]n issue not raised in the district court and raised for the first time in an

appeal will not be considered by this court.” (internal quotation marks omitted)).

      But even if the associates had raised this argument below, we could not say

that the confidentiality provision rendered the arbitration provision substantively

unconscionable. We have held, under Georgia law, that a similar confidentiality

provision in an arbitration agreement did not render the agreement substantively

unconscionable. See Caley, 428 F.3d at 1378-79. The associates contend that

Caley did not correctly decide the issue under Georgia law. They urge us to rely

instead on a recent decision in which we held that a similar confidentiality

provision was substantively unconscionable. See Larsen v. Citibank FSB, 871 F.3d

1295, 1318-20 (11th Cir. 2017). But in Larsen we were applying Washington state

law, not Georgia law, so that case does not address the issue before us. See id. at

1319. We remain bound under our prior panel precedent rule to follow Caley,

which has not been called into question by a subsequent decision of a Georgia

appellate court. See EmbroidMe.com, Inc., 845 F.3d at 1105.

      We have carefully considered the associates’ arguments about why the

arbitration provision is procedurally and substantively unconscionable. Given the

evidentiary record that was before the district court when it decided the motion to




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compel arbitration, the district court properly enforced the arbitration provision

according to its terms.

                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s judgment and denial

of the associates’ motion for reconsideration.

      AFFIRMED.




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