When a Texas Supreme Court justice opens a dissent with a line that quotes Bob Dylan, it may be worthy of some time to take notice.
Thus, Justice Jeffrey Boyd’s lonely dissent in Aerotek, Inc. v. Lerone Boyd, et al, Friday commands our attention.
“No doubt, “the times they are a-changin’,” Boyd opens in opposition to the majority with a footnote acknowledging the octogenarian Nobel laureate.
What bothered Boyd was the court’s willingness to settle what he regards as a question of fact — as opposed to a question of law — in a case involving the efficacy and integrity of electronic signatures attached to an arbitration agreement.
“Under our well-established standard of review, this court’s assessment of the truth is irrelevant,” Boyd writes.
At issue are the sworn statements of four erstwhile Aerotek employees who had been hired, then fired, as contractors working for an Aerotek subsidiary. When they sued for racial discrimination, the court was presented with Aerotek’s demand for arbitration, along with Mutual Arbitration Agreements signed electronically by each of the employees.
Although the employees agreed that they had signed lots of documents electronically when they were employed — some with the help of Aerotek HR employees — each of the four insisted that they had never seen, much less signed, an arbitration agreement per se.
Given the apparent factual dispute, the trial court held an evidentiary hearing after which it denied Aerotek’s motion for arbitration. The Fifth Court of Appeals in Dallas agreed in a split decision.
But in its own ruling released Friday, the Supreme Court reversed the Fifth COA, with Chief Justice Nathan Hecht noting:
“Aerotek conclusively established that the employees signed, and therefore consented to, the [arbitration agreements] and trial court erred in denying the motion to compel arbitration.”
In his dissent, Justice Boyd said the court had long ago decided not to decide such issues — in 1931.
In Ward v. Weaver a warranty deed conveying property from Mary Weaver to Francelene Ida Ward was challenged by Mrs. Weaver, who claimed she never signed the deed. The deed was witnessed by a notary, who later testified that she had signed it in his presence at her own home. But Mrs. Weaver also swore, and testified under oath, that the notary had never been in her home, much less witnessed her signature. The case was returned to the trial court to decide who was telling the truth.
“Aerotek’s evidence that the employees saw and signed the arbitration agreement was quite compelling,” Boyd concedes. “In addition to printed copies of the agreement bearing what appear to be computer-generated stamps recording the dates and times at which each employee electronically signed it, Aerotek’s program manager testified in great detail regarding the electronic-onboarding process.”
“And yet, like Mrs. Weaver, the employees swore under oath that they never saw or signed the agreement,” Boyd wrote.
“To put things bluntly, someone here testified under oath to facts that cannot be true. Either the employees were wrong (or lying) when they denied that they ever saw or signed the arbitration agreement, or Aerotek’s program manager was wrong (or lying) when she described how the electronic-onboarding process works.”
Although a large part of the majority opinion is devoted to the courts’ growing dependence on digital documents, along with a discussion on the broadening public use of social media — much of which Boyd says he agrees with and supports — it was the court’s willingness to put a thumb on the factual evidence before the court that troubled him enough to dissent.
“The times will always be a-changin’, but sometimes, the more things change, the more they stay the same. Or, at least, they should,” Boyd writes.
Or as Dylan himself might offer in concurrence:
And don’t speak too soon
For the wheel’s still in spin
And there’s no tellin’ who
That it’s namin’
For the loser now
Will be later to win
For the times they are a-changin’
The case is Aerotek, Inc. v. Lerone Boyd, et al No. 20–0290 Opinion/Dissent