Arbitration/photo courtesy of shutterstock.comA New Jersey appellate panel has reversed a ruling that an executive’s electronic signature was a deficient assent to arbitration of her claims against investment firm Cantor Fitzgerald.
To the contrary, said the Appellate Division panel, former Cantor employee Lee Stowell signed off on the arbitration agreement and policy knowingly. The panel remanded the case for an order dismissing the complaint without prejudice and compelling the parties to arbitration.
The panel in Stowell v. Cantor Fitzgerald & Co. said the case differed from Skuse v. Pfizer but met the standard of Leodori v. Cigna, two cases involving the electronic signing of arbitration agreements.
“In our review of the DRPA [Dispute Resolution Policy and Agreement] here and the process surrounding its dissemination to plaintiff, we are satisfied that Cantor met the mandate of Leodori and intent of Skuse,” the panel said in the Feb. 27 per curiam opinion. “Unlike those cases where the employer sought to compel arbitration through another document—the handbook acknowledgment form or an electronic acknowledgement in a training module—here, plaintiff executed the DRPA with an electronic signature.”
Added the panel: “We are satisfied that accepting the terms of an agreement can be reasonably construed as the equivalent of agreeing to its terms. In accepting the terms of the DRPA, plaintiff affirmatively assented to the arbitration policy.”
The case, before Appellate Division Judges Richard Hoffman, Heidi Willis Currier and Lisa Firko, was on appeal from Union County Superior Court.
Kara MacKenzie of Gina Mendola Longarzo in Chatham argued for Stowell. Emily Milligan, an in-house litigator for Cantor Fitzgerald, argued for the company. Eve Klein of Duane Morris in New York represented co-defendants Riaz Haidri and James Gorman. None was available for comment.
Stowell, a former executive at Cantor, claims she was terminated in June 2017 not over poor job performance and workforce reduction as Cantor claims, but because she had filed an internal sexual harassment grievance against Haidri and Gorman.
Stowell’s suit alleged violations of the New Jersey Law Against Discrimination and included common-law claims.
According to the decision, Cantor offered Stowell a position as a senior vice president in its credit products group in July 2007. The offer letter from Cantor stated in part: “You are required to execute the [employee handbook] and by doing so you will be agreeing to abide by Company policies, including but not limited to the Arbitration Agreement and Policy and the Confidentiality and Intellectual Property Agreement and Policy.” On Aug. 1, 2007, Stowell executed the employment agreement and two other documents with handwritten signatures, an acknowledgment of receipt of the employee handbook and an arbitration agreement and policy, according to the case.
The arbitration agreement, according to the court, provided that Cantor ”and its affiliates … believe that mandatory arbitration that is mutual and binding on all parties to the employment relationship is the quickest, least expensive and best overall method for resolving most employment and other disputes.”
In 2010, Stowell was promoted to managing director and made a limited partner. She signed a partnership agreement with Cantor. Four years later, she received an April 14, 2014, email from the company’s human resources department referring to the DRPA in the subject line. The body of the email advised of an updated handbook and DRPA. Stowell received the email two days later and requested a new password reset for her Oracle account, according to the decision.
On April 17, 2014, Cantor’s human resources department again sent Stowell an email with links to review and electronically execute the DRPA and employee handbook. The Oracle system showed that she signed the DRPA that morning, the court noted.
A March 7, 2019, trial court decision denying the defendants’ motion to compel arbitration found that an electronic acknowledgment box used for an e-signature didn’t meet the standards set forth in Leodori and Atalese v. U.S. Legal Services. The click box also didn’t advise Stowell she was “agreeing to an arbitration agreement or waiving her right to a trial by jury when bringing a claim against her employer,” the trial court said, and it also found the emails distributed by Cantor’s HR were inadequate in substance, according to the appellate decision.
On appeal, the defendants argued that Leodori and Skuse focused on the enforceability of a stand-alone arbitration acknowledgment form, not an executed arbitration agreement, and don’t apply to Stowell’s case.
In Leodori, the Supreme Court held that an employee acknowledging receipt of a handbook containing an arbitration agreement didn’t amount to an executed arbitration agreement.
In Skuse, decided last by the Appellate Division, Pfizer disseminated by email a mandatory arbitration policy to its employees as a training module. The email linked to the company’s electronic training portal, but the arbitration agreement was included in a separate link and not displayed in the module. Employees agreed to the arbitration agreement by checking a box that read “CLICK HERE” to acknowledge. If they did not acknowledge it but continued to work for Pfizer for 60 days, the employee would be deemed bound by the arbitration policy.
The Skuse case has been argued and is awaiting decision from the state Supreme Court.
The panel in Stowell v. Cantor said that case fell somewhere in the middle.
“In light of the uncontroverted documented evidence, the trial court assumed plaintiff had electronically signed the DRPA,” but “concluded the signature was not sufficient to constitute knowing assent to the DRPA under Skuse,” the court said in the Feb. 27 opinion. “Because we find the circumstances here differ from those before the Skuse court, we are constrained to conclude differently.”
The panel said Stowell had to scroll down to the bottom of the DRPA before reaching a click box. She could not bypass the DRPA to get to the click box and accept its terms.
With Stowell’s “clicking on the ‘approve and submit’ button, Cantor could rely on [it] as the equivalent of a manual signature,” wrote the panel.
“Again, differing from Skuse, Stowell’s click on the box here confirmed she had read and accepted the terms of the DRPA,” said the court, which was ”convinced the DRPA satisfied the requirements of Leodori.”
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February 29, 2020 at 06:14AM
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Court Gives Guidance on Electronic Arbitration Signatures in Cantor Fitzgerald Employee Suit | New Jersey Law Journal - Law.com
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