NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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