In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 23-2723
EIDO HUSSAM AL-NAHHAS,
                                                   Plaintiff-Appellee,
                                 v.

777 PARTNERS LLC, et al.,
                                             Defendants-Appellants.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 1:22-cv-00750 — John J. Tharp, Jr., Judge.
                     ____________________

    ARGUED APRIL 9, 2024 — DECIDED FEBRUARY 19, 2025
                ____________________

   Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI,
Circuit Judges.
   JACKSON-AKIWUMI, Circuit Judge. Illinois resident Eido
Hussam Al-Nahhas took out four loans from an online lend-
ing company called Rosebud Lending LZO, doing business as
ZocaLoans. Those loans charged exorbitant interest rates of
up to nearly 700%—far beyond the rates allowed under Illi-
nois law. Al-Nahhas contends that ZocaLoans is, in fact, a
fraud orchestrated by two private equity firms, 777 Partners,
2                                                   No. 23-2723

LLC, and Tactical Marketing Partners, LLC, to skirt state
usury laws. According to Al-Nahhas, those firms pay the
Rosebud Sioux Tribe a pittance to put its name on predatory
payday loan websites that gouge low-income individuals.
And if anyone sues the websites for violating state law, the
firms conveniently claim tribal sovereign immunity. Al-
Nahhas sued ZocaLoans and the firms anyway, for violating
Illinois usury statutes and the federal Racketeer Influence and
Corrupt Organizations Act.
    For fourteen months, the defendants participated in litiga-
tion, including by filing their answer, fielding discovery re-
quests, and participating in status conferences. But then they
decided that they wanted to arbitrate. Citing an arbitration
provision in the four lending agreements that Al-Nahhas had
signed, they asked the district court to refer the case to an ar-
bitrator. The district court refused, finding that the defend-
ants had waived their right to compel arbitration by partici-
pating in litigation.
    777 Partners, LLC, and Tactical Marketing Partners, LLC
now appeal. Before oral argument, the appellants also asked
us to rule the litigation moot based on the terms of Al-
Nahhas’s settlement agreement with ZocaLoans. We con-
clude that the appellants indeed waived their right to arbi-
trate through their litigation conduct and that this case is not
moot. We therefore affirm the district court’s judgment and
deny the appellants’ motion.
                                I

   This litigation concerns the legality of private equity firms
using a Native American tribe to evade Illinois law. At the
heart of this case are four loans that Eido Hussam Al-Nahhas,
No. 23-2723                                                      3

an Illinois resident, took out from an online lending company
called Rosebud Lending LZO, doing business as ZocaLoans.
In January, March, May, and September of 2021, Al-Nahhas
took out four loans from ZocaLoans’ website of $350, $550,
$750, and $900. The annual interest rates on those loans
ranged from 534.75% to 693.10%—exponentially higher than
allowed under Illinois law. Al-Nahhas repaid the first three of
those loans, but the fourth—a $900 loan with a 585.21% inter-
est rate—remains outstanding.
    ZocaLoans holds itself out as a “sovereign enterprise” that
is “wholly owned and controlled by” the federally recognized
Rosebud Sioux Tribe. But Al-Nahhas alleges that this Native
American ownership is just a front. In reality, he contends,
ZocaLoans is operated by 777 Partners, LLC, and its subsidi-
ary, Tactical Marketing Partners, LLC, both of which are non-
tribal entities based in Miami and organized under Delaware
law. Al-Nahhas alleges that Tactical Marketing Partners un-
derwrites the loans that ZocaLoans issues and provides the
technology, infrastructure, and marketing. In return for Zo-
caLoans’ compliance, Tactical Marketing Partners pays the
Rosebud Sioux Tribe a small percentage of the revenues it de-
rives from the high-interest loans. ZocaLoans, Al-Nahhas
says, is no more than a “rent-a-tribe scheme”—the practice of
non-Native organizations using Native American tribes as “a
cloak of sovereign immunity for lending activities.”
    On February 10, 2022, Al-Nahhas filed a federal class-ac-
tion suit against ZocaLoans, 777 Partners, and Tactical Mar-
keting Partners. Al-Nahhas’s complaint contained three
counts targeting all three defendants: (1) a request for declar-
atory and injunctive relief declaring the high-interest rates
void; (2) a violation of the Illinois Interest Act, 815 ILSC 205/4;
4                                                    No. 23-2723

and (3) a violation of the Illinois Predatory Loan Prevention
Act, 815 ILCS 123/15-1-1 et seq., which is a violation of the Il-
linois Consumer Fraud and Deceptive Business Practices Act,
815 ILCS 505/1 et seq. The complaint contained an additional
count against 777 Partners and Tactical Marketing Partners
for violating the federal Racketeer Influence and Corrupt Or-
ganizations Act.
    For fourteen months, the litigation was plagued by delay
and dysfunction. None of the defendants met their deadline
to file an answer. Then they belatedly requested more time to
answer, explaining that they were engaged in settlement dis-
cussions with Al-Nahhas. The district court acquiesced, but
the defendants missed the extended deadline too. At that
point, Al-Nahhas successfully moved for entry of a default
judgment against the defendants. This drew the defendants’
attention. They moved to set aside the default, the district
court again acquiesced, and on September 1, 2022, the defend-
ants finally responded to Al-Nahhas’s complaint. They listed
five affirmative defenses and requested a jury trial.
   For the next seven months, the defendants repeatedly as-
sured the court and Al-Nahhas that they intended to continue
participating in the litigation. When the defendants missed
the deadlines to file their initial disclosures and their reply to
Al-Nahhas’s first discovery requests, they told the district
court that they were working on producing those materials.
After Al-Nahhas moved to compel discovery, the defendants
submitted a joint status report with Al-Nahhas saying they
“agreed to serve full and complete responses to Plaintiff’s dis-
covery requests.” And the defendants responded to Al-
Nahhas’s second and third sets of discovery requests.
No. 23-2723                                                    5

    But the defendants made an about-face on April 7, 2023,
when they moved, for the first time, to compel arbitration.
The defendants pointed to an arbitration provision in the loan
contracts that Al-Nahhas signed with ZocaLoans. The provi-
sion specified that “[a]ll Disputes, including any Representa-
tive Claims against us and/or related third parties, shall be re-
solved by arbitration.” It also specified that “[t]he arbitrator
shall apply the laws of the Rosebud Sioux Tribe that govern
this Agreement” and “[t]he laws of the Rosebud Sioux Tribe
(‘Tribal Law’) will govern this Agreement, without regard to
the laws of any state or other jurisdiction.”
    While the motions to compel were pending before the dis-
trict court, Al-Nahhas settled with ZocaLoans. That left only
the motion to compel filed by 777 Partners and its subsidiary
Tactical Marketing Partners (jointly, the “777 Defendants”).
    The district court denied the 777 Defendants’ motion, find-
ing that they had waived their right to compel arbitration
through their litigation conduct. The court first determined
that it, not an arbitrator, should decide if the defendants
waived their right to arbitration. It then found that the 777
Defendants had waived their right to arbitration because dur-
ing the fourteen months that the case had been pending, the
defendants never once said anything about arbitration. The
court observed that the defendants had led Al-Nahhas “on a
fruitless discovery chase,” forcing Al-Nahhas to compel dis-
covery, all the while assuring the court that they intended to
comply with the discovery requests. The court then decided
that, even if the defendants had not waived their right to com-
pel arbitration, the 777 Defendants could not compel arbitra-
tion under Illinois law because they were third-party benefi-
ciaries to the contract. It also rejected the 777 Defendants’
6                                                     No. 23-2723

argument that Al-Nahhas was equitably estopped from chal-
lenging the legality of the loans. Consequently, the district
court retained jurisdiction over the dispute.
    The 777 Defendants now appeal that decision. Since filing
the appeal, the 777 Defendants have introduced another way
to undo the district court’s decision. They say that, at some
point in January 2024, they discovered “through their busi-
ness relationship with Rosebud Lending [LZO d/b/a Zo-
caLoans]” the terms of the settlement that Al-Nahhas reached
with ZocaLoans. As a result, they have filed a motion asking
us to rule the case moot because, as they see it, Al-Nahhas re-
ceived more from the settlement than he could through a
judgment. Relatedly, they also have moved to file under seal
documents discussing the terms of the settlement agreement.
Al-Nahhas disagrees that the settlement has mooted the case.
He also has moved to file a supporting declaration under seal.
  We now consider the merits of the appeal and the parties’
motions.
                                II

    The parties posit that our standard of review is de novo,
except that we review the district court’s factual findings for
clear error. This standard finds support in, for example, Sosa
v. Onfido, Inc., 

 (7th Cir. 2021). See also Ernst &
Young LLP v. Baker O’Neal Holdings, Inc., 

 (7th
Cir. 2002) (“The factual determinations that a district court
predicates a finding of waiver [of the right to arbitrate] upon
are reviewed for clear error, while the legal question of
whether the conduct amounts to waiver is reviewed de
novo.”). However, as the concurrence points out, it is possible
that the generally fact-intensive question before us (did the
No. 23-2723                                                    7

777 Defendants waive their right to compel arbitration?) pre-
sents the type of mixed question that merits deference to the
district court, not de novo review. Post, at 18–21; see also Iowa
Grain Co. v. Brown, 

, 508–09 (7th Cir. 1999) (noting
how case law has applied inconsistent standards of review for
“question[s] [of] whether a right to arbitrate has been waived”
and applying a deferential standard “[b]ecause no one ha[d]
claimed that the district court misinterpreted the contract or
otherwise misunderstood the applicable law”). In any event,
our conclusion is the same under either standard: the district
court had the authority to decide whether the 777 Defendants
waived their right to compel arbitration, and it rightly con-
cluded that they did.
   A. Authority to Decide Waiver

    An agreement to arbitrate is a contractual provision, and
“[l]ike other contractual rights … the right to arbitrate is wai-
vable.” Brickstructures, Inc. v. Coaster Dynamix, Inc., 

 (7th Cir. 2020). Before we decide whether the 777 De-
fendants waived that right, we first address who—the court
or an arbitrator—properly decides that question in the first
instance. The 777 Defendants contend that the district court
lacked authority to make this decision and should have
turned the matter over to an arbitrator. They argue that the
issue of waiver is “procedural” and arbitrators, not courts, de-
cide procedural issues. We do not agree.
    The most recent authority from the Supreme Court sug-
gests that courts, not arbitrators, determine whether a party
waived its right to compel arbitration. In Morgan v. Sundance,
Inc., 

 (2022), the Court considered waiver of
the right to compel arbitration. The Court wrote that when
8                                                    No. 23-2723

parties engage in “months, or even years, of litigation … the
court faces a question: Has the defendant’s request to switch
to arbitration come too late?” 

 (emphasis added). We take
from that language that courts, not arbitrators, decide
whether a party has waived the right to compel arbitration.
   Our conclusion finds solid support in the text of the Fed-
eral Arbitration Act (“FAA”) and in our precedent. The FAA
provides that if two parties have agreed to resolve their dis-
putes in arbitration but one of the parties then sues the other,
“the court in which such suit is pending” must refer the case
to arbitration upon the application of one of the parties,
“providing the applicant for the stay is not in default in pro-
ceeding with such arbitration.” 

. We have previ-
ously assumed that “default” in this section of the FAA en-
compasses waiver through litigation conduct, and we have
signaled that courts decide if such default has occurred.
    We suggested as much in Halcon International, Inc. v. Mon-
santo Australia Limited, 

 (7th Cir. 1971). There,
Halcon argued that Monsanto had improperly delayed its de-
mand to arbitrate a dispute, and Monsanto was therefore
barred from arbitration under the principle of laches. Halcon
further argued that a court, not an arbitrator, should decide
the laches issue because “dilatory conduct” that bars enforce-
ment of a contract under the rule of laches constituted a de-
fault under Section 3 of the FAA. 

 We disagreed with Hal-
con’s argument about the implications of Monsanto’s con-
duct. In our analysis, we compared the dispute with the D.C.
Circuit case Cornell & Co., Inc. v. Barber & Ross Co., in which
“the litigation machinery had been substantially invoked and
the parties were well into the preparation of a lawsuit” before
one of the parties moved for arbitration. 

 (quoting Cornell &
No. 23-2723                                                       9

Co., Inc. v. Barber & Ross Co., 

 (D.C. Cir. 1966)).
The parties in Cornell & Company, we said, had “waiv[ed]”
their right to compel arbitration. 

 Monsanto had not waived
its right to compel arbitration because “delay in making an
arbitration demand is not a default within the meaning of [the
FAA’s] Section 3.” 

 Our analysis, therefore, suggested that
a party is “in default” under the FAA when it waives its right
to arbitrate by participating in litigation. See id.; 

.
And the proper authority to determine if such default oc-
curred is the courts because the text of the FAA “expressly
gives the courts jurisdiction to determine the existence of a de-
fault.” Halcon Int’l, 

 (emphasis added).
     We came to the same conclusion in St. Mary’s Medical Cen-
ter of Evansville, Inc. v. Disco Aluminum Products Co., Inc., 

 (7th Cir. 1992). There, the district court ruled that St.
Mary’s had waived its right to compel arbitration by partici-
pating in litigation for ten months. In our analysis, we stated
that “[n]o rigid rule exists as to what constitutes a waiver of
the right to arbitrate”; rather, “[t]he essential question is
whether, based on the circumstances, the alleged defaulting
party has acted inconsistently with the right to arbitrate.” 

at 587–88 (emphasis added). We therefore implicitly deter-
mined that waiver is a form of default under Section 3 of the
FAA, and we affirmed the district court’s ruling that St.
Mary’s had waived its right to arbitrate. 

. See also Ka-
wasaki Heavy Indus., Ltd. v. Bombardier Recreational Prods., Inc.,

 (7th Cir. 2011) (explaining that courts deter-
mine whether a party waived its right to arbitrate by consid-
ering “whether the allegedly defaulting party participated in
litigation” (emphasis added)).
10                                                     No. 23-2723

    Our sister circuits have likewise concluded that waiver
through litigation conduct constitutes a default. See, e.g., Marie
v. Allied Home Mortg. Corp., 

 (1st Cir. 2005) (“A
‘default’ has generally been viewed by courts as including a
‘waiver.’”); Glass v. Kidder Peabody & Co., 

, 455 n.62
(4th Cir. 1997) (“[A] section 3 default … only encompasses the
limited range of circumstances when a party seeking arbitra-
tion has ‘substantially utiliz[ed] the litigation machinery’ be-
fore pursuing arbitration ….”) (quoting Maxum Founds. Inc. v.
Salus Corp., 

 (4th Cir. 1985) (second alteration
in original)); Morewitz v. W. of Eng. Ship Owners Mut. Prot. &
Indem. Ass’n (Lux.), 

, 1365 n.16 (11th Cir. 1995)
(“Although the [FAA] uses the term ‘default,’ the case law on
this subject employs the term ‘waiver.’” (internal citation
omitted)). We see no reason to change course now, disagree
with our sister circuits, and retroactively say that the district
court in St. Mary’s never had the power to issue the ruling that
we affirmed.
    Finally, we previously have explained that courts by na-
ture are better suited than arbitrators to determine whether
parties waived their right to arbitrate through litigation con-
duct. Waiver through litigation “is an intensely fact-bound
question” that implicates the intricacies of the litigation pro-
cess. Brickstructures, Inc., 

. District courts are “in
a better position to assess the parties’ [litigation] conduct.” 

And, as the district court rightly observed in Lukis v.
Whitepages, Inc., 

, 786 (N.D. Ill. 2021),
“[a]bsurd consequences would flow” from a ruling that arbi-
trators must decide the issue. For example, a party could
move for arbitration in the middle of a trial and force the court
to pause proceedings until an arbitrator decided if the trial
could proceed. The FAA could not have intended such a
No. 23-2723                                                   11

bizarre result. See Senne v. Vill. of Palatine, 

(7th Cir. 2015) (“[S]tatutes have to be interpreted to avoid ab-
surd results.”).
   The 777 Defendants’ citation to Supreme Court dicta does
not convince us otherwise. The 777 Defendants note that in
Moses H. Cone Memorial Hospital v. Mercury Construction Corp.,

, 24–25 (1983), the Supreme Court stated that:
       The Arbitration Act establishes that, as a matter
       of federal law, any doubts concerning the scope
       of arbitrable issues should be resolved in favor
       of arbitration, whether the problem at hand is
       the construction of the contract language itself
       or an allegation of waiver, delay, or a like de-
       fense to arbitrability.
(emphasis added). But that language played no role in the
Court’s decision. There, parties to a contract dispute initiated
conflicting suits, one in state court seeking a declaratory judg-
ment barring arbitration, and one in federal court seeking ar-
bitration. The district court stayed the federal case pending
resolution of the state court action, a decision the Supreme
Court found improper under the Colorado River abstention
doctrine. The above quotation appears in a subsection that ex-
plains that when federal law governs the issue (there, the Fed-
eral Arbitration Act), that factors against abstention. What
constitutes waiver and who decides the issue had nothing to
do with the Court’s reasoning. The waiver language is, there-
fore, dicta. See also Morgan v. Sundance, Inc., 

(2022) (explaining that the language in Moses H. of “FAA’s
‘policy favoring arbitration’ [did] not authorize federal courts
to invent special, arbitration-preferring procedural rules”
(emphasis added)).
12                                                    No. 23-2723

    The 777 Defendants also rely on Howsam v. Dena Witter
Reynolds, Inc., 

 (2002), to no avail. Howsam cited Mo-
ses Cone’s dicta on waiver without incorporating that dicta
into its holding. Instead, the Howsam Court determined that
the central question in its case was when the incident that
gave rise to the conflict arose. The Court determined that an
arbitrator should decide the question. Waiver through litiga-
tion conduct had nothing to do with the decision. See 

 at 84–
85. Consequently, we understand the reference to waiver in
Howsam (and Moses Cone) precisely as our sister circuits do:
“the Court was referring only to waiver, delay, or like de-
fenses arising from non-compliance with contractual condi-
tions precedent to arbitration.” JPD, Inc. v. Chonimed Holdings,
Inc., 

, 393–94 (6th Cir. 2008) (quoting Ehleiter v.
Grapetree Shores, Inc., 

 (3d Cir. 2007)).
   In sum, the district court correctly determined that it had
the authority to decide whether the 777 Defendants waived
their right to arbitration through their litigation conduct.
     B. Litigation Conduct

    Having resolved the authority issue, the next question is
whether the 777 Defendants waived their right to compel ar-
bitration. In the arbitration context, waiver “encompasses
both intentional relinquishments and implicit abandonments
of the right” to arbitrate. Smith v. GC Servs. Ltd. P’ship, 

 (7th Cir. 2018). “[W]aiver can be express or implied
through action.” Brickstructures, Inc., 

. When we
evaluate whether waiver can be inferred, we consider
whether “a party acted inconsistently with the right to arbi-
trate.” Kawasaki Heavy Indus., 

. That analysis is
informed by “the diligence or lack thereof of the party seeking
No. 23-2723                                                     13

arbitration—did that party do all it could reasonably have
been expected to do to make the earliest feasible determina-
tion of whether to proceed judicially or by arbitration?” Cabi-
netree of Wis., Inc. v. Kraftmaid Cabinetry, Inc., 

(7th Cir. 1995). Factors include “whether the allegedly de-
faulting party participated in litigation, substantially delayed
its request for arbitration, or participated in discovery.” Kawa-
saki Heavy Indus., 

. Evaluating the 777 Defend-
ants’ conduct in this light, we have no trouble concluding that
they waived their right to arbitrate.
    The 777 Defendants waited fourteen months from the time
Al-Nahhas sued to file their motion to compel arbitration, and
without good reason. The 777 Defendants cannot claim they
were unaware of their ability to compel arbitration; Al-
Nahhas attached the loan agreement, with the arbitration pro-
vision, to the complaint. Even so, the 777 Defendants waited
more than a year after receiving the complaint before moving
to compel arbitration. That is substantial, inexcusable delay.
     During that time, the 777 Defendants participated in the
litigation, including discovery. They produced thousands of
documents and continually assured Al-Nahhas and the court
that they would abide by court-ordered discovery deadlines.
They also responded to two different requests from the court
for status updates. And then, with discovery well underway
and deadlines extended multiple times due to their dilatory
conduct, the 777 Defendants requested arbitration. Those ac-
tions are inconsistent with an intent to pursue arbitration.
   The 777 Defendants try to excuse their conduct by com-
plaining that they had a bad lawyer. Once they had compe-
tent representation, they say, they moved expeditiously to
compel arbitration. That is neither convincing nor relevant for
14                                                  No. 23-2723

two reasons. One, these are sophisticated parties who had the
loan agreements at their disposal, and so they should have
known to exercise their right to arbitrate. Cf. Smith, 

 (“The initial suggestion that GC Services—a sophisti-
cated debt collection agency—would be unaware that credit
card agreements routinely include arbitration agreements is
suspect.”). Two, even if the 777 Defendants had incompetent
counsel, their counsel acted as their agent, and they are bound
by their counsel’s actions. See Link v. Wabash R.R. Co., 

, 633–34 (1962) (“Petitioner voluntarily chose this attorney
as his representative in the action, and he cannot now avoid
the consequences of the acts or omissions of this freely se-
lected agent. Any other notion would be wholly inconsistent
with our system of representative litigation, in which each
party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be
charged upon the attorney.” (internal quotations omitted));
Lombardo v. United States, 

 (7th Cir. 2017)
(“[P]arties are bound by the acts of the attorney they choose
to represent them, just as a principal is bound by the acts of
its agent.”).
    We therefore conclude the 777 Defendants waived their
right to compel arbitration through their litigation conduct,
and they have no grounds to claim otherwise. Because we
find that the 777 Defendants waived their right to compel ar-
bitration, we need not consider the parties’ additional argu-
ments about whether the 777 Defendants can enforce the ar-
bitration agreement as third parties or based on equitable es-
toppel principles.
No. 23-2723                                                    15

   C. Mootness

    We now turn to the motions before this court. The 777 De-
fendants ask us to consider the case moot and vacate the dis-
trict court’s judgment. They claim that Al-Nahhas gained
more from his settlement than he could from a court order, so
the case is moot because of the prohibition against double re-
covery. We disagree.
    “A case becomes moot only when it is impossible for a
court to grant any effectual relief whatever to the prevailing
party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 

 (2012) (citation and internal quotations omitted). In gen-
eral, under federal and Illinois law, when a plaintiff sues mul-
tiple parties, settles with one of them, and prevails over the
other parties in court, the court will deduct from the recovery
the amount that the plaintiff received through the settlement.
See Janusz v. City of Chicago, 

 (7th Cir. 2016).
This is known as the “single-recovery rule.” 

 But the single-
recovery rule does not apply to punitive damages, which are
at issue in this case. The single-recovery rule applies “only [to]
compensatory damages; punitive damages do not measure
the plaintiff’s loss, so piling them on top of compensatory
damages is permissible.” Bosco v. Serhant, 

(7th Cir. 1987). Al-Nahhas has requested punitive damages
pursuant to the Illinois Consumer Fraud and Deceptive Busi-
ness Practices Act. As a result, the single-recovery rule does
not moot his case.
   The 777 Defendants argue that Al-Nahhas’s request for
punitive damages is not the end of the matter. They contend
that an award of punitive damages in this case would let Al-
Nahhas recover more than nine times what he could receive
16                                                    No. 23-2723

as compensatory damages. That, they argue, would violate
the Due Process Clause of the Fourteenth Amendment. We
need not consider whether the 777 Defendants’ numerical as-
sertions are correct, because even if Al-Nahhas did receive
more than nine times the maximum amount of available com-
pensatory damages, that would not automatically violate the
Due Process Clause. Courts presume that punitive damages
should amount to no more than nine times the compensatory
damages; but that presumption serves as a guidepost, not a
mechanical rule. See Saccameno v. Bank Nat’l Ass’ns, 

 (7th Cir. 2019) (noting that “few [punitive dam-
ages] awards exceeding a single-digit ratio to a significant de-
gree will satisfy due process,” but “the ratio is flexible” (inter-
nal citation and quotations omitted)). Although excessively
high ratios of punitive to compensatory damages may be un-
constitutional, “[h]igher ratios may be appropriate when
there are only small damages …. [T]he ratio should not be
confined to actual harm, but also can consider potential
harm.” 

 Consequently, whatever the contents of the settle-
ment agreement, it did not moot Al-Nahhas’s claim. Any con-
stitutional issues are a matter for another day. Further, be-
cause Al-Nahhas’s request for punitive damages resolves this
issue, we need not consider the parties’ arguments about the
role that attorneys’ fees play in the single-recovery rule or
whether Al-Nahhas’s request for preliminary injunction pre-
vents the case from becoming moot.
    Finally, we consider the parties’ motions to file three doc-
uments under seal: two declarations and a Reply Brief that
discuss the terms of the settlement agreement. In our Circuit,
documents “that influence or underpin the judicial decision
are open to public inspection unless they meet the definition
of trade secrets or other categories of bona fide long-term
No. 23-2723                                                      17

confidentiality.” Baxter Int’l, Inc. v. Abbott Lab’ys, 

 (7th Cir. 2002). Since the terms of the settlement agree-
ment did not influence our decision on mootness, we grant
the motions to file under seal.
                                III

    For the above reasons, we affirm the district court’s deci-
sion, find the case not moot, and grant the parties’ motions to
file under seal.
18                                                    No. 23-2723

   EASTERBROOK, Circuit Judge, concurring. I join my col-
leagues’ opinion but offer some additional thoughts about
one proposition that does not affect the outcome.
    The court’s opinion recounts (slip op. 6) the parties’ un-
derstanding that we review de novo a district court’s order
denying a motion to compel arbitration. Decisions such as
Sosa v. Onfido, Inc., 

 (7th Cir. 2021), support that
view, though Sosa does not give a reason. Instead it cites Druco
Restaurants, Inc. v. Steak N Shake Enterprises, Inc., 

 (7th Cir. 2014). Druco also does not supply a reason but
cites Gore v. Alltel Communications, LLC, 

(7th Cir. 2012), and Lumbermens Mutual Casualty Co. v. Broad-
spire Management Services, Inc., 

 (7th Cir.
2010). These decisions contain language almost identical to
that of Sosa, but they too omit reasons. Lumbermens does say
that arbitrability is a legal issue, citing John Wiley & Sons, Inc.
v. Livingston, 

 (1964), but does not try to ex-
plain why all other issues affecting arbitration likewise are
matters of law or how this affects the standard of appellate
review. Lumbermens also cites Zurich American Insurance Co. v.
Watts Industries, Inc., 

 (7th Cir. 2006), which
has an almost identical passage—and, no surprise by now, no
explanation.
    As far as I can tell, these statements (and similar ones in
other decisions) stem indirectly from Machinists Union v.
Fansteel, Inc., 

 (7th Cir. 1990), which says
that questions of arbitrability are reviewed without deference
to an arbitrator. That proposition comes from AT&T Technolo-
gies, Inc. v. Communications Workers, 

 (1986), which
holds that a judge rather than an arbitrator decides whether
the parties have agreed to arbitrate. Through a process in the
No. 23-2723                                                  19

nature of a rumor chain, the statement that arbitrability is a
subject for a district judge morphed into the proposition that
all judicial orders to arbitrate are reviewed independently by
appellate judges. Nothing of the kind appears in or can be im-
puted to AT&T Technologies or John Wiley & Sons, neither of
which concerns standards of appellate review.
    Sosa’s unreasoned proposition about de novo appellate
decisions lacks provenance in a statute, rule, or common-law
tradition. Worse, it contradicts views expressed by the Su-
preme Court. Courts of appeals are fond of saying that they
make independent (de novo) decisions about mixed questions
of law and fact—that is, about the application of legal rules to
the facts of particular cases. But that is not what the Supreme
Court has told us to do. Its most recent extended analysis of
the subject in ordinary civil litigation comes in U.S. Bank N.A.
v. Village at Lakeridge, LLC, 

 (2018), which says:
       Mixed questions are not all alike. … [S]ome re-
       quire courts to expound on the law, particularly
       by amplifying or elaborating on a broad legal
       standard. When that is so—when applying the
       law involves developing auxiliary legal princi-
       ples of use in other cases—appellate courts
       should typically review a decision de novo. But
       … other mixed questions immerse courts in
       case-specific factual issues—compelling them to
       marshal and weigh evidence, make credibility
       judgments, and otherwise address what we
       have (emphatically if a tad redundantly) called
       “multifarious, fleeting, special, narrow facts
       that utterly resist generalization.” And when
       that is so, appellate courts should usually
20                                                    No. 23-2723

       review a decision with deference. In short, the
       standard of review for a mixed question all de-
       pends—on whether answering it entails primar-
       ily legal or factual work.
583 U.S. at 395–96 (cleaned up; footnote and citations omit-
ted). (The Supreme Court has used a different approach in im-
migration law, where the law/fact classification may control
whether the Judicial Branch as a whole plays any role. Wil-
kinson v. Garland, 

, 221–22 (2024). Decisions such
as Wilkinson do not address standards of appellate review
within the judiciary.)
    Instead of saying that appellate judges always decide in-
dependently whether a dispute must be arbitrated, we should
employ the distinction established by the Supreme Court. To
apply Lakeridge we must ask whether the parties’ dispute con-
cerns the substance of the legal principles (which implies ple-
nary appellate resolution) or how an established legal princi-
ple applies to the dispute at hand (which implies deferential
appellate review). And it is not hard to see how that works for
this appeal. There is a dispute about arbitrability (777 Partners
is not a party to the contract between Al-Nahhas and Zo-
caLoans), but that is not the ground on which the district court
acted. The standard for waiver of arbitration entails case-spe-
cific, discretionary assessments. Morgan v. Sundance, Inc., 

 (2022). The parties disagree about how the dis-
trict judge should have evaluated 777 Partners’ delay in de-
manding arbitration. That kind of dispute calls for deferential
review under Lakeridge (and under Morgan too).
   Some panels of this circuit have reached just this conclu-
sion. Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 

 (7th Cir. 1995), states flatly: “Review of a finding
No. 23-2723                                                   21

that a party has waived its contractual right to invoke arbitra-
tion is for clear error only; it is not plenary.” And Brickstruc-
tures, Inc. v. Coaster Dynamix, Inc., 

 (7th Cir.
2020), cites Lakeridge for the proposition that “[w]hether a
party has waived its right to arbitrate by acting inconsistently
with the right is … a mixed question, so we appropriately re-
view the district court’s determination with deference.” Alas,
many decisions after 1995 ignored Cabinetree, and Brickstruc-
tures did not mention the contrary statements in some of this
circuit’s post-1995 opinions. Sosa then asserted the opposite of
Brickstructures, leaving our doctrine in shambles. See also Iowa
Grain Co. v. Brown, 

, 508–09 (7th Cir. 1999).
    Many opinions contain formulaic statements of the stand-
ard of review that can be traced through a long chain of
equally unreasoned citations. Every once in a while a court of
appeals must stop and ask whether a formula from decades
or generations ago represents the law articulated by the Su-
preme Court or other panels of this court. The approach in
Sosa and its predecessors does not—it wrongly lumps arbitra-
bility together with contextual matters such as waiver—and
should be replaced. Today is not the day, however, not only
because the parties have ignored this subject but also because
on an independent view of things we come out the same way
as the district judge. Occasionally, however, the standard of
appellate review matters, and we should not employ formu-
las that depart from the Supreme Court’s approach.