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Appellate panel hears dispute over whether Securitas arbitration agreement was formed
Summary
At oral argument in Other Court, lawyers debated whether a 2011 arbitration agreement signed by Daryl Clements should be enforced. Appellant Securitas says the trial court erred on consideration and burden allocation; respondent contends Clements never assented and the record lacks corroborating evidence.
At oral argument in Other Court, counsel for Securitas Security Services and respondent Daryl Clements argued over whether a 2011 arbitration agreement signed by Clements should be enforced.
Derek Bishop, arguing for appellant Securitas, told the panel that “the trial court here made two fundamental errors in denying appellant's motion to compel arbitration,” saying the lower court wrongly found there was no consideration for the agreement and improperly shifted the burden to Securitas to prove the agreement was procedurally conscionable.
Bishop said the record contains no direct evidence tying Mr. Clements’s signature to an informed assent: counsel noted there is no testimony describing the circumstances of the signing, no contemporaneous documents showing how the agreement was presented, and no declaration from Mr. Willis, who would have firsthand knowledge. Bishop asked the court to reverse the trial court’s decision and remand with orders to compel arbitration.
Respondent counsel Dean Petita countered that Securitas failed to meet its burden to prove assent. “Mr. Clements did not affirmatively agree to arbitrate,” Petita said, arguing that a signature on a document does not necessarily show the signer read, understood, or voluntarily accepted the document’s terms. Petita further told the panel that the trial court weighed competing credibility — finding Clements’s account more reliable than the employer’s witness, Ms. Wiggers — and that omissions in the form signed by Clements (notably an opt‑out provision) undercut any claim of a reciprocal bargain.
The judges focused much of their questioning on what type of circumstantial or habit evidence is sufficient to prove assent under a preponderance standard. Counsel for both sides discussed whether a supervisor’s routine practice of handing employees paperwork could, by itself, establish assent to an arbitration clause, and whether later meetings (including a cited 2021 Microsoft‑related meeting) affected the weight of habit evidence tied to a 2011 agreement. Petita referenced Circuit City and related cases to frame when opt‑out opportunities or review windows have supported enforcement of arbitration agreements.
Both sides acknowledged gaps in the contemporaneous record. Bishop emphasized that Securitas had access to witnesses and internal documents it did not submit at the trial court level, which he said weakened its evidentiary showing. Petita emphasized that the record, as weighed below, supported the finding that Clemens did not assent.
The panel did not rule from the bench. The court thanked counsel, concluded the docket, and recessed.
The dispute centers on legal questions about contract formation and procedural unconscionability in the employment context: whether an exchange of promises alone supplies consideration when an opt‑out or meaningful opportunity to review is absent, and which party bears the burden to prove unconscionability. The court’s forthcoming disposition will determine whether the case is sent back to the trial court for proceedings to compel arbitration or whether the trial court’s denial stands.
