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Blind woman presents novel challenge to arbitration agreement

Ordinarily, disputes regarding arbitration agreements come down to legal issues to be resolved by courts — or, as is frequently the case, by the arbitrators themselves.

But a case argued before the Missouri Supreme Court on Oct. 2 presents the rare instance in which the validity of the agreement could hinge on a factual matter: The former employee is legally blind, says she couldn’t see the document and denies that she ever agreed to it.

So far, both a Cole County judge and the Court of Appeals Western District have allowed the case to proceed in circuit court. An attorney for the employer, Dollar Tree Stores Inc., urged the Supreme Court to compel arbitration.

“This is going to be a loophole so big that everybody’s going to be able to argue that, ‘What I bought on Amazon, what I signed on my mortgage documents, nobody said there was an arbitration agreement in there,’” said James M. Paul of Ogletree Deakins.

But an attorney for the employee, Nina Theroff, said Dollar Tree’s argument is essentially, “the arbitrator will figure out whether you actually signed that.”

“How can a blind person positively and unambiguously accept an offer that she didn’t know was being made?” said Tim Van Ronzelen of Cook, Vetter, Doerhoff & Landwehr in Jefferson City.

Theroff was hired in October 2015 as a seasonal worker at Dollar Tree’s Jefferson City location. Dollar Tree terminated her after about a month, alleging she failed to show up for work and stopped communicating with store management.

When Theroff filed a discrimination suit in Cole County Circuit Court, Dollar Tree sought to compel arbitration, citing an agreement that she allegedly had signed electronically when she was hired.

A store employee helped Theroff to complete the paperwork, and while electronic signatures are supposed to carry the same weight as ink on a page, the parties fiercely dispute what Theroff was told when she viewed the documents or who actually clicked the box indicating Theroff’s assent to the arbitration agreement.

“Let’s be fair about this: If there was a drawn signature on that, there would have to be some other defense, some other argument,” Paul said.

Dollar Tree’s attorney argued that Theroff’s allegations could be raised as a defense to the arbitration agreement’s validity but doesn’t undermine its existence. He said people frequently sign mortgage documents or car loan agreements without fully reading those documents, yet they remain bound by their terms.

Members of the court, however, weren’t so sure. Judge W. Brent Powell pointed out that Dollar Tree’s argument appeared to depend not just on the purportedly signed document but also on the testimony the parties presented to the trial court. Although Judge Patricia Joyce didn’t issue written findings, her refusal to compel arbitration indicates that she made credibility determinations that the Supreme Court shouldn’t disturb on appeal.

The judges also wondered what to do with the allegation that someone else might have, in effect, signed in Theroff’s name by clicking the box without her knowledge. Judge Laura Denvir Stith asked what would happen in a theoretical case in which a stranger walked into a store and electronically signed someone else’s name.

“I could go in and find that I’ve agreed to buy a lot of stuff in the store when I wasn’t in the store,” she said. “You’re saying that’s not a question the court has to decide first?”

Paul responded that those weren’t the facts of the case at all. There was no dispute, he added, that only Theroff and the employee assisting her were present during the document review — a context, he said, that demonstrates the agreement was validly signed.

“The two people that we have to take in context, one of them is legally blind,” Judge Patricia Breckenridge said. “Doesn’t that change the analysis of what two people in a room means?”

Van Ronzelen said that, as the case has wound its way through the appellate courts, the parties have completed discovery. Unless the Supreme Court send the case to arbitration, he said, he expects it to go to trial soon.

The case is Theroff v. Dollar Tree Store Inc. et al., SC97235.