United States Court of Appeals For the First Circuit

No. 18-1779

GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a Golden Living Center - Heathwood,

Plaintiffs, Appellees,

v.

JACKALYN M. SCHRADER, as the personal representative of the estate of Emma J. Schrader,

Defendant, Appellant.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

John Vail, with whom John Vail Law, PLLC, Daniel T. Landry, David J. Hoey, and Law Offices of David J. Hoey, P.C. were on brief, for appellant. William Alvarado Rivera, Meryl D. Grenadier, and Kelly R. Bagby on brief for AARP and AARP Foundation, amici curiae. Robert E. Curtis, Jr. on brief for Massachusetts Advocates for Nursing Home Reform, amicus curiae. Joseph M. Desmond, with whom Justin L. Amos and Morrison Mahoney LLP were on brief, for appellees. May 11, 2020 LYNCH, Circuit Judge. On February 26, 2019, we certified

two questions in this case to the Massachusetts Supreme Judicial

Court ("SJC"). GGNSC Admin. Servs., LLC v. Schrader,

(1st Cir. 2019). On February 27, 2020, the SJC issued its

opinion. The SJC wrote:

We conclude that claims of statutory beneficiaries under our wrongful death statute, G. L. c. 229, § 2, are derivative of the decedent's own cause of action, and that therefore the decedent's arbitration agreement binds those beneficiaries. We also conclude that, in the circumstances of this case, the arbitration agreement binds the executor or administrator of the decedent's estate to arbitrate the wrongful death action on behalf of the decedent's statutory beneficiaries.

GGNSC Admin. Servs., LLC v. Schrader,

, 407 (Mass.

2020). We then ordered the parties to file supplemental briefs

addressing the resolution of this appeal in light of the SJC's

opinion.

Appellees argue that the SJC's decision requires us to

affirm the district court's judgment compelling arbitration. They

argue that the SJC's decision "resolves the previously unsettled

state law questions presented to it for certification" and that

"this Court must now accept and apply the state law as determined."

Appellant disagrees. She makes several assertions, all

of which are without merit.

- 3 - Appellant first argues that the SJC's decision rests on

a "patent misreading" of the Massachusetts wrongful death statute.

She urges that this court is "not obliged to accept an

interpretation based on clear error in reading -- regardless of

the source." But a federal court is "duty-bound to accept

controlling state law" as set forth by a state's highest court,

and, in this case, "it is incumbent upon us to accept the clear

statement of Massachusetts law articulated by the SJC." Sanders

v. Phoenix Ins. Co.,

(1st Cir. 2016). Appellant's

argument is wrong that this court may now reject the SJC's

interpretation of Massachusetts law.

Appellant describes her next argument as "that the state

court's incorrect interpretation of the statute violates the

Federal Arbitration Act." But, despite this passing reference to

the Federal Arbitration Act ("FAA"), appellant develops no

argument based on the FAA. Her brief does not cite the FAA or

federal cases construing the FAA. "[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino,

(1st Cir. 1990).

Finally, appellant asserts that beneficiaries of

wrongful death claims in cases where decedents agreed to arbitrate

will now be unfairly prejudiced in violation of the Equal

Protection Clause. Although she argues that strict scrutiny should

- 4 - apply to the SJC's classification, she cites no authority

whatsoever for this proposition. This purported equal protection

claim is also waived for lack of developed argument. See

Even

if not waived, it is meritless.

"Under traditional equal protection analysis, a

legislative classification must be sustained, if the

classification itself is rationally related to a legitimate

governmental interest." U.S. Dep't of Agric. v. Moreno,

(1973). The SJC held that "claims of statutory

beneficiaries under our wrongful death statute . . . are

derivative of the decedent's own cause of action, and that

therefore the decedent's arbitration agreement binds those

beneficiaries." GGNSC Admin. Servs., LLC, 140 N.E.3d at 407. As

the SJC observed, "the decedent alone had the right to decide

whether the beneficiaries must arbitrate those claims." Id. at

406. This fulfills "[t]he Legislature['s] . . . inten[t that]

wrongful death rights . . . remain tied to the decedent's action."

Id. at 404. Allowing decedents to agree to arbitration of their

beneficiaries' wrongful death claims advances that government

interest, as well as Massachusetts's "strong public policy in favor

of arbitration in commercial disputes." Id. at 406. It does not

infringe beneficiaries' equal protection rights.

The judgment of the district court compelling

arbitration is affirmed. No costs are awarded.

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