Electronic Arbitration Agreement
In their application for release, the defendants argued that, even if what Mr. Cruz claimed is true, he is still bound by the arbitration agreement, because his son is his legal representative and/or he is clearly entitled to sign his father`s name. Electronic agreements have become a staple of today`s world of e-commerce and these agreements are usually as enforceable as those written on parchment and signed with a pen. However, a notable exception is that the proponent of such an agreement attempts to impose an arbitration clause. In this case, it may be more necessary than having a simple clause stating that all disputes must be resolved by arbitration at the AAA, JAMS or any other organization. In fact, that`s the hard lesson the defendants of Cruz v. Jump City Everett LLC (34 Mass.L.Rep. 586) learned earlier this year. In 2015, after visiting the defendants` recreational trampoline factory with his two minor children, Elmer Cruz filed a complaint in Suffolk Superior Court, claiming he had suffered an injury at the facility. The defendants dismissed this claim, claiming that Mr. Cruz had electronically signed a “participation agreement” containing a clause stating that all disputes must be settled through arbitration. Mr.
Cruz retaliated by making an affidavit stating (i) that he does not speak English; (ii) his son, who speaks English, led Mr. Cruz to a computer screen where the son entered various information and made the “click” that generated what the defendants claimed to be Mr. Cruz`s electronic signature; and (iii) Mr. Cruz did not know what was depicted on the computer screen and did not authorize his son to “sign” on Behalf of Mr. Cruz. The lesson that can be learned from Cruz is quite simple: you cannot rely on boilerplate in an electronic document if you want to impose an arbitration clause. (And one has to wonder what other provisions might fall into the same category.) There is no doubt that a well-written agreement is necessary, but you must also have protocols and systems so that you can crediously assert that the electronic signatures you receive were provided knowingly and voluntarily. If you can`t, you can end up in court instead of arbitration. In deciding this motion, the Supreme Court judge first found that the burden lay on the defendants to prove the existence of a binding arbitration agreement and that the fulfillment of that burden required them to prove that “the provision at issue was reasonably communicated and understood”. The judge then quickly found that this charge had not been fulfilled, because there was nothing to prove but “the entry of Sir. . .