Ensuring Enforcement Of Electronically Executed Arbitration Agreements

• Published date: 27 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Stites & Harbison PLLC
• Author: Ms Shannon M. Sprinkle and Evan W. Elam

District courts around the country have begun looking more skeptically at electronically signed arbitration agreements. The Sixth Circuit in Bazemore v. Papa John's USA., Inc.; Papa John's International, Inc., No. 22-6133, recently reversed a trial court's enforcement of one such agreement. On first read, it may seem as though the Court has made enforcement a brass ring much further out of reach; however, a closer review and comparison to other decisions illustrates important factual differences, which lead to the Sixth Circuit's decision. Assessing some of the key facts raised gives guidance to those who might seek enforcement of their own arbitration agreements.

One key fact in Bazemore, which is beyond control of any employer, was sworn testimony that plaintiff had never seen the arbitration form. The Bazemore court differentiated the affirmative testimony that the employee had never seen the document with other cases where an employee "did not recall" signing an arbitration agreement. (Cf Curtis v. Contractor Mgmt. Servs., LLC, 1:15-CV-487-NT, 2018 WL 6071999 (D. Me. Nov. 20, 2018). The Sixth Circuit had previously held that an unequivocal denial of signing an arbitration agreement was sufficient in Boykin v. Fam. Dollar Stores of Mich., LLC, 3 F.4th 832, 839-40 (6th Cir. 2021), and courts from other circuits have agreed. For example, the D.C. Circuit found that an unequivocal denial of signing an agreement was sufficient to create a dispute of fact in Camara v. Mastro's Rests. LLC, 952 F.3d 372, 374 (D.C. Cir. 2020).

Some Eleventh Circuit District Courts have been more strict, however, and found that unequivocal denials without any additional evidence that the signature was forged are insufficient. For example, in Yearwood v. Dolgencorp, LLC, 6:15-CV-00898-LSC, 2015 WL 5935167, at *3 (N.D. Ala. Oct. 13, 2015) the Northern District of Alabama found that after admitting to signing other documents in a similar manner, an unequivocal denial was not enough without additional corroborating evidence, as did other courts in Robson v. D.R. Horton, Inc., 6:21-CV-719-GAP-LRH, 2021 WL 3914474, at *13 (M.D. Fla. Aug. 12, 2021) and, in an Eighth Circuit District Court, Coffey v. OK Foods Inc., 2:21-CV-02200, 2023 WL 122919, at *4 (W.D. Ark. Jan. 6, 2023).

Had the employer had a separate and independent acknowledgement of receipt and execution of key agreements (including the arbitration agreement), the result might be different. Employers should proactively take...