Rashaan Carter sued SP Plus under state and federal minimum-wage statutes. The district court initially stayed the case in favor of arbitration based on a checked box from Carter's onboarding, but Judge Elaine E. Bucklo lifted the stay after Carter filed an affidavit describing how the form was completed.
Carter's affidavit said Brenjy Etienne, on SP Plus's human-relations staff, "filled out and 'signed' most of the forms (including the assent to arbitration) on Carter's behalf, not explaining what they were and not offering him an option to decline or even allowing him to see the computer screen that set out the choices." Circuit Judge Frank H. Easterbrook wrote that "if that is so, then Carter has not agreed to arbitrate."
Bucklo, reconsidering her earlier order, wrote that SP Plus "fails to engage with plaintiff's account of his onboarding process, which calls into question defendant's view that plaintiff's consent to arbitrate must be inferred from the presence of the initials 'Rc' and a check in the box next to 'Employee Electronic Signature' on the electronic document captioned 'Mutual Agreement to Arbitrate All Claims.'" She concluded that "on the record before me, I cannot determine that a valid agreement to arbitrate was formed."
SP Plus appealed rather than submit contradicting evidence. The panel first addressed jurisdiction under 9 U.S.C. §16(a)(1), noting the district court had not explicitly stated whether it denied arbitration outright or merely postponed the question pending an evidentiary hearing. "A delay during the evaluation of evidence differs from a denial that is appealable under §16(a)(1)(B)," Easterbrook wrote.
The court found the order appealable because SP Plus had forfeited any right to a §4 hearing by failing to ask the district court for one. "A party can't keep the district court in the dark about the existence of an evidentiary dispute and then ask for relief on appeal," Easterbrook wrote. "As far as anyone could tell from the papers that SP Plus filed in the district court, it had nothing to say in response to Carter's affidavit."
On the merits, the panel held the district court's conclusion was not clearly erroneous. "It would have been easy to file an affidavit from Brenjy Etienne stating that Carter personally agreed to arbitration—easy, that is, if Etienne remembers obtaining his assent," Easterbrook wrote. "But if Etienne remembers things as Carter narrated them, and the electronic trail is inconclusive, then SP Plus lacks essential evidence."
The panel rejected SP Plus's argument that courts must place "a thumb on the scale in favor of arbitration." Citing Morgan v. Sundance, Inc., 596 U.S. 411 (2022), Easterbrook wrote that the federal policy "is about treating arbitration contracts like all others, not about fostering arbitration." The opinion also criticized SP Plus for calling Carter's affidavit "self-serving," citing Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). "A brief that repeats canards expressly rejected by decisions such as Morgan and Hill is hard to take seriously," Easterbrook wrote.
Circuit Judges Pryor and Maldonado joined the opinion.