Criteria for Electronic Consent to Arbitration

The Texas Court of Appeals, Fifth District, Dallas, on April 25, 2025, affirmed a trial court's decision to deny Conduent Commercial Solutions, LLC's motion to compel arbitration in the case of Conduent Commercial Sols.  v. Boren.  The central issues revolved around whether a valid arbitration agreement was formed, specifically concerning the employee's consent to an electronic signature and the conspicuousness of the arbitration clause.

Misty Boren, an employee of Conduent who suffered an on-the-job injury, filed a lawsuit, prompting Conduent to attempt to compel arbitration based on a "Texas On-the-Job Injury Acknowledgment" that contained an arbitration provision.

The appellate court's review focused on two key legal points:

• Efficacy of Security Procedures for Electronic Signatures: The court found insufficient evidence to prove the effectiveness of Conduent's security procedures used to obtain Boren's electronic signature on the arbitration agreement.  Unlike a prior case, Aerotek, Inc. v. Boyd, Conduent's evidence lacked testimony from someone with personal knowledge of the security procedures at the time Boren was hired in 2020.  Furthermore, there was no comparable evidence of the application program timestamping actions, the inability to alter submitted forms, or consistent security protocols between different documents.  The court noted that Conduent's offer letter appeared to have been modified, and there were unexplained differences between the offer letter and the Acknowledgment containing the arbitration clause.

• Conspicuousness of the Arbitration Clause: The court concluded that the arbitration clause within the Acknowledgment was not conspicuous as a matter of law.  The heading was not in capitals, nor was it in a contrasting font or color.  The language within the clause was the same size as the surrounding text, lacked contrasting type, font, or color, and was not set apart by symbols or marks to draw attention, thus failing to meet the legal standards for conspicuousness under Texas Business and Commerce Code § 1.201(b)(10).

Based on these findings, the Court of Appeals concluded that the trial court did not abuse its discretion in denying Conduent's motion to compel arbitration and denied Conduent's motion to stay the trial court proceedings.

Conduent Commercial Solutions, LLC v Boren.  No. 05-2-00287-CV.