“I Do Not Recall Signing” Defense Can Be Insufficient to Evade Arbitration

13 March 2023 Labor & Employment Law Perspectives Blog
Author(s): Kaleb N. Berhe

Historically, a common tactic used by employees to evade mandatory arbitration is to claim they do not recall signing an arbitration agreement bearing their signature. In a 2021 case, Gamboa v. Northeast Community Clinic, the California Court of Appeal – Second Appellate District added fuel to the fire by using that excuse to deny enforceability of an otherwise valid employment arbitration agreement.

Early this year, however, the California Court of Appeal – First Appellate District adopted a view more favorable to employers in Iyere v. Wise Auto Group by holding that two employees’ alleged failure to remember signing their arbitration agreements is insufficient to challenge the authenticity of their handwritten signatures.

In Iyere, which was decided on January 19, 2023, three former employees filed a joint complaint against their employer in Marin County Superior Court alleging discrimination, harassment, and retaliation, among other claims. The employer moved to compel the claims to arbitration based on arbitration agreements bearing the handwritten signatures of each plaintiff. In opposition, each of the three employees submitted declarations stating they were handed “a large stack of documents” on their first day of work and were “rushed” to sign the documents. Each of the plaintiffs also asserted they “[did] not recall ever reading or signing” the arbitration agreements.

The trial court denied the motion to force arbitration, finding the employer failed to meet its burden of proving the authenticity of the handwritten signatures. The Court of Appeal reversed this decision, holding the plaintiffs’ inability to recall signing the agreements was not sufficient evidence to dispute the authenticity of their handwritten signatures. Only if the plaintiffs showed some evidence (other than “I don’t remember”) to show that their signatures were not authentic would the employer be required to authenticate the handwritten signatures.

Critically, the Court of Appeal noted that none of the plaintiffs declared that he did not sign the arbitration agreement. Moreover, the plaintiffs admitted they signed a “stack of documents,” but no plaintiff denied that the arbitration agreement was included in the stack of documents they received. Finally, the Court of Appeal explained that “there is no conflict between having signed a document on which [your] handwritten signature appears and, two years later, being unable to recall having done so.”


While this case symbolizes a rare “win” for employers in the Golden State, its applicability is likely limited to handwritten signatures. In dicta, the Court of Appeal in Iyere described the “considerable difference” in evidence needed to authenticate handwritten versus electronic signatures and noted that an individual’s inability to recall electronically signing an agreement could be regarded as sufficient evidence that the individual did not sign it.

In sum, Iyere serves as a weapon for employers utilizing hand-signed arbitration agreements to use against the often-cited “I don’t recall” defense to enforcement of arbitration agreements, while also highlighting the importance of establishing robust methods for properly authenticating electronic signatures on arbitration agreements.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services