Judge: Michelle Williams Court, Case: 21STCV42571, Date: 2022-10-24 Tentative Ruling
Case Number: 21STCV42571 Hearing Date: October 24, 2022 Dept: 74
21STCV42571 JOSEPH SIERRA vs NEOFECT USA INC
Defendant Neofect USA, Inc.’s Motion to
Compel Arbitration
TENTATIVE RULING:
The motion is CONTINUED for an
evidentiary hearing to resolve the factual disputes regarding Plaintiff’s
assent to the Mutual Arbitration Agreement and the allegations of fraud in the
execution.
Background
On November 18,
2021, Plaintiff Joseph Sierra filed this action against Defendant Neofect USA,
Inc. arising out of Plaintiff’s employment. The complaint asserts causes of
action for: (1) retaliation (Labor Code § 1102.5); wrongful termination in
violation of public policy; (3) unfair competition (Bus. & Prof. Code §
17200 et seq); and (4) failure to comply with employee’s request to inspect
records (violation of Lab. Code §§ 226, 1198.5).
On October 6,
2022, the Court denied Plaintiff’s ex parte application for leave to file a
first amended complaint and continue the hearing on Defendant’s motion to
compel arbitration.
Motion
On May 5, 2022,
Defendant Neofect USA, Inc. filed its motion to compel Plaintiff to submit the
claims in this action to arbitration.
Opposition
In opposition,
Plaintiff argues Defendant failed to meet its burden, the Mutual Arbitration
Agreement is void for fraud in the execution, and it is unenforceable as
unconscionable.
Reply
In reply, Defendant
contends Plaintiff was not fraudulently induced into signing the agreement, the
agreement is enforceable absent its signature, and the agreement is not
unconscionable.
Plaintiff’s
Evidentiary Objections
Each of Plaintiff’s
evidentiary objections are OVERRULED.
Motion to Compel Arbitration
Standard
“California
law reflects a strong public policy in favor of arbitration as a relatively
quick and inexpensive method for resolving disputes. To further that policy,
section 1281.2 requires a trial court to enforce a written arbitration
agreement unless one of three limited exceptions applies. Those statutory
exceptions arise where (1) a party
waives the right to arbitration; (2) grounds exist for revoking the arbitration
agreement; and (3) pending litigation with a third party creates the possibility
of conflicting rulings on common factual or legal issues.” (Acquire II, Ltd. v. Colton Real Estate Group
(2013) 213 Cal.App.4th 959, 967; Code Civ. Proc. § 1281.2.) Similarly, “under
the FAA, the strong federal policy favoring arbitration agreements requires
courts to resolve any doubts concerning arbitrability in favor of arbitration.”
(Valencia v. Smyth (2010) 185 Cal.App.4th 153, 176 (internal quotations
omitted).)
In deciding a petition to compel
arbitration, trial courts must decide first whether an enforceable arbitration
agreement exists between the parties, and then determine the second gateway
issue whether the claims are covered within the scope of the agreement. (Omar
v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party
has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 (“The
petitioner, T–Mobile here, bears the burden of proving the existence of a valid
arbitration agreement and the opposing party, plaintiffs here, bears the burden
of proving any fact necessary to its defense.”).)
If a party asserts the applicability of
the Federal Arbitration Act (“FAA”), that party “bears the burden to show it
applies by presenting evidence establishing [that] the contract with the
arbitration provision has a substantial relationship to interstate commerce . .
. .” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.) Alternatively, the parties may agree to
the application of the FAA. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355 (“But the
presence of interstate commerce is not the only manner under which the FAA may
apply. As discussed above, the parties may also voluntarily elect to have the
FAA govern enforcement of the Agreement, as they did here.”).)
Procedurally, a petition to compel
arbitration or stay proceedings must state verbatim the provisions providing
for arbitration, or must have a copy of them attached. (Cal. R. Ct., rule 3.1330.)
Arbitration Agreement at Issue
In
opposition, Plaintiff contends Defendant failed to meet its burden. (Opp. at
7:4-10.) However, “[w]ith respect to the moving party’s burden to provide
evidence of the existence of an agreement to arbitrate, it is generally
sufficient for that party to present a copy of the contract to the court.” (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.)
Defendant
provides the Mutual Arbitration Agreement between Defendant Neofect USA, Inc.,
Inspirity PEO Services, L.P, and Plaintiff Joseph Sierra dated August 19, 2020.
(Wehr Decl. Ex. 1.)
By
virtue of the Mutual Arbitration Agreement, Plaintiff agreed to arbitrate “all
claims or disputes related to or arising out of my application for employment,
my employment, or the termination of my employment with Insperity and/or Client
Company, (b) all claims that Insperity and/or Client Company may have against
me, and/or (c) all claims that I may have against Covered Persons.” (Wehr Decl.
Ex. 1 § 1.) The Arbitration Agreement expressly states it “is intended to be as
broad as legally permissible,” the Covered Claims “include, but are not limited
to, “contract claims; tort, defamation and other common law claims; wage and
hour claims, including claims relating to pay, minimum wage, overtime, overtime
exemption classification, wage penalties, and meal and rest breaks;
discrimination, harassment, and retaliation claims, including claims based on
race, creed, color, religion, sex, age, disability, workers compensation, leave
status, national origin, ancestry, sexual orientation, marital status, veteran
or military reserve status, or any other characteristic protected by federal,
state or local law.” (Id. § 1(A).) Accordingly, the terms of the Mutual
Arbitration Agreement cover all of Plaintiff’s claims.
Defendant
provides evidence that it complied with the mediation condition in the agreement.
(Wehr Decl. Ex. 1 § 1(E) (“Insperity, Client Company, and I understand and
agree that the parties will participate in a mediation before invoking binding
arbitration. Mediation is a condition precedent to arbitration.”); Ahn Decl. ¶¶
4-5.)
Conflicting Facts Regarding Plaintiff’s Assent to Arbitration
Defendant
provides the declaration of Ryan Wehr, the Director, Product Management for
Insperity PEO Services. Wehr states its company “provides . . . outsourced
human resources for small and medium-sized businesses,” including Defendant.
(Wehr Decl. ¶ 2.) Wehr states “[o]nce an employee registers through his or her
personal email address and signed on to Insperity’s portal, the employee was
prompted to review various documents, including but not limited to the
Arbitration Agreement. . . . The employee is free to download the documents
before and after signing . . .” (Id. ¶ 3.) Wehr further states “[e]very
agreement an employee signs on Insperity’s portal can only be executed by the
employee following an input of the employee’s unique credentials.” (Id. ¶ 4.) Wehr
verified that “on August 19, 2020, Plaintiff logged into Insperity’s portal
using his unique login information and reviewed the 4-page stand-alone
Arbitration Agreement” and “Plaintiff electronically executed the Arbitration
Agreement using his unique login ID.” (Id. ¶¶ 5-6.)
In
opposition, Plaintiff provides conflicting details regarding his electronic
signature and review of the Mutual Arbitration Agreement. Plaintiff contends
his direct supervisor, Scott Kim, informed Plaintiff “here would be a switch in
the company payroll and benefits administration from TriNet PEO to Insperity
PEO and the change would involve better rates and employee benefits to Neofect
employees, and result in a cost savings to the company.” (Sierra Decl. ¶¶ 3-4.)
On August 19, 2020, Plaintiff “attended the enrollment tutorial video
teleconference with the Insperity team and Neofect employees.” (Id. ¶ 6.) During
that teleconference, the presenter informed Plaintiff that “in order for
employees to be paid on time, [they] would need to complete the steps prompted
in the web page” and “made it clear that the enrollment process must be
completed promptly in order for paychecks to be processed on time.” (Ibid.) The
presenter did not mention an arbitration agreement. (Ibid.) Plaintiff “logged
into the Insperity online portal by utilizing [his] 14-inch laptop and entering
a username.” (Id. ¶ 7.)
Plaintiff
contends “[o]nce in the Insperity system, [Plaintiff] was brought to a web page
that displayed several links. Some of the links directed [Plaintiff] as the
user to a screen with forms to fill out. This interactive page pertained to
direct deposit, selecting benefits, beneficiaries, health and dental plans,
life insurance and related information.” (Ibid.) According to Plaintiff, “[t]he
other links on the portal led [Plaintiff] to smaller popup windows that
appeared to contain Pdf type of documents. These smaller windows presented
about 4-inches of viewing space and did not have labels or titles within the
window or on the web page. [Plaintiff] was unable to enlarge or maximize the
window to a bigger or full screen. Due to the small size of the window, it was
extremely arduous, if not impossible, for [Plaintiff] to read the text or
contents of these documents.” (Id. ¶ 8.)
Plaintiff
states “[e]ach opened screen on the Insperity portal contained a box to either
check off or enter the username in order to move onto the next screen. The
pages that required information to be filled in prompted [Plaintiff] to provide
information for payroll or benefit plans (ie., direct deposit, health plan).
The other pages containing documents did not display visible titles within the popup
window or outside the smaller window to reference an ‘arbitration agreement.’”
(Id. ¶ 9.) Plaintiff “did not see, review, sign, or enter into an arbitration
agreement when Insperity conducted the online enrollment.” (Id. ¶ 11.)
In
reply, Defendant provides an additional declaration from Ryan Wehr, refuting
Plaintiff’s contention that the documents could not be manipulated or
downloaded for review. (Wehr Reply Decl. ¶¶ 3-4.)
While
Plaintiff contends his signature is unauthenticated, (Opp. at 8:12-9:12), the
Court finds the evidence sufficient to authenticate Plaintiff’s signature. Wehr
demonstrates only Plaintiff, through his unique credentials, could execute the
Mutual Arbitration Agreement. (Espejo v. Southern California Permanente
Medical Group (2016) 246 Cal.App.4th 1047, 1062.) Plaintiff also contends
there is no evidence the parties agreed to electronic transactions, citing
Civil Code section 1633.5. (Opp. at 9:13-25.) However, Plaintiff admits he
logged into Insperity’s system to execute documents on the date Defendant
contends Plaintiff signed the agreement. (Sierra Decl. ¶ 7. See Civ. Code §
1633.5(b) (“Whether the parties agree to conduct a transaction by electronic
means is determined from the context and surrounding circumstances, including
the parties' conduct.”).) The evidence is sufficient to establish Plaintiff
took the steps necessary to place his electronic signature on the Mutual
Arbitration Agreement.
The Court Shall Hold an Evidentiary Hearing
However,
Plaintiff is not necessarily bound by the Mutual Arbitration Agreement solely
by virtue of his electronic signature. “California law distinguishes between
fraud in the ‘execution’ . . . of a contract and fraud in the ‘inducement’ of a
contract. In brief, in the former case the fraud goes to the inception or
execution of the agreement, so that the promisor is deceived as to the nature
of his act, and actually does not know what he is signing, or does not intend
to enter into a contract at all, mutual assent is lacking, and the contract is
void. In such a case it may be disregarded without the necessity of
rescission.” (Rosenthal
v. Great W. Fin. Sec. Corp. (1996) 14 Cal.4th 394, 415.)
Plaintiff contends his signature was procured by
fraud. (Opp. at 7:11-27.) Plaintiff contends
he signed documents on August 19, 2020 in connection with enrollment in a
“payroll and benefits program” and was not told about the Mutual Arbitration
Agreement. (Sierra Decl. ¶¶ 6-7.) Plaintiff was told he was required to complete
the enrollment process to receive his paycheck on time and Plaintiff did not
have a prior arbitration agreement with Defendant Neofect, his existing
employer at the time. (Id. ¶¶ 6, 11.) “A contract may, however, be held wholly void,
despite the parties' apparent assent to it, when, without negligence on his
part, a signer attaches his signature to a paper assuming it to be a paper of a
different character.” (Rosenthal, supra, 14 Cal.4th at 420.) The enrollment process contained links to “smaller popup windows
that appeared to contain Pdf type of documents” that were unlabeled within
small windows that could not be enlarged, rendering it “extremely arduous, if
not impossible” read the documents. (Id. ¶¶ 8, 9.) Thus, if the facts asserted
in Plaintiff’s declaration are credited, Plaintiff was “deprived . . . of a
reasonable opportunity to learn the character and essential terms of the
documents [he] signed.” (Rosenthal,
supra, 14 Cal. 4th at 428.)
If
the facts asserted in the Wehr declaration are credited, Plaintiff was offered
a sufficient opportunity to learn the contents of the Mutual Arbitration
Agreement. Wehr stated the onboarding process prompts the employee to review
the arbitration agreement and can download the documents before signing them.
(Wehr Decl. ¶¶ 3, 4.) Plaintiff’s failure to take advantage of that opportunity
forecloses a finding of fraud in the execution. (Rosenthal, supra, 14
Cal.4th at 423 (“If a party, with such reasonable opportunity, fails to learn
the nature of the document he or she signs, such ‘negligence’ precludes a
finding the contract is void for fraud in the execution.”).)
The
Court shall hold an evidentiary hearing with testimony related to the
circumstances surrounding Plaintiff’s execution of the Mutual Arbitration Agreement.
(Rosenthal, supra, 14 Cal.4th at 414
(“we agree that where . . . the enforceability of an arbitration clause may
depend upon which of two sharply conflicting factual accounts is to be
believed, the better course would normally be for the trial court to hear oral
testimony and allow the parties the opportunity for cross-examination.”); Ashburn
v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 98 (“the trial
court had to hold an evidentiary hearing here, as there was significant dispute
about what appellants signed, how they came to sign it, and what they signed
said.”).)
Defendant Need Not Have Signed the Arbitration Agreement
Plaintiff
contends the motion should be denied because “Neofect and Insperity are
signatories but never signed the claimed arbitration agreement.” (Opp. at
8:3-11.) However, Plaintiff does not cite any portion of the Mutual Arbitration
Agreement that conditions enforcement or validity upon either Neofect or
Insperity’s separate signature. The bottom of the Mutual Arbitration Agreement
contains Defendant’s agreement thereto. (Wehr Decl. Ex. 1 at 4 (“AGREED:
INSPERITY . . . AGREED: NEOFECT USA, INC.”).) Nothing further is required to
bind Defendant to the Mutual Arbitration Agreement. (See e.g. Cruise v. Kroger
Co. (2015) 233 Cal.App.4th 390, 398 (“we readily conclude Kroger intended
to be bound by the arbitration clause in its employment application. Kroger's
intent is evidenced by the fact that the employment application was printed on
its company letterhead and the arbitration clause declared Kroger's intent to
be bound thereby.”); Banner Entertainment, Inc. v. Superior Court (Alchemy
Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 361 (“it is not the presence or
absence of a signature which is dispositive; it is the presence or absence of
evidence of an agreement to arbitrate which matters.”); Serafin v. Balco
Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 177.)
The Federal Arbitration Act Applies
The Mutual Arbitration Agreement expressly
states “[t]his Arbitration Agreement shall be governed by the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving
commerce.” (Wehr Decl. Ex. 1 § 7.) Accordingly, the FAA applies. (Victrola
89, supra, 46 Cal.App.5th at 355 (“the parties may also voluntarily elect
to have the FAA govern enforcement of the Agreement, as they did here.”).)
The Arbitration Agreement Does Not Violate
Armendariz
To
be enforceable, an arbitration agreement in an employment contract must comply
with the requirements of Armendariz v.
Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, even where
the FAA applies. (See Ramos v. Superior Court (2018) 28 Cal.App.5th
1042, 1055 (“Since Concepcion was decided, the California Supreme Court
has reaffirmed the validity of Armendariz multiple times.”).) The Armendariz requirements are that: “(1)
the arbitration agreement may not limit the damages normally available under
the statute; (2) there must be discovery sufficient to adequately arbitrate
their statutory claim; (3) there must be a written arbitration decision and
judicial review sufficient to ensure the arbitrators comply with the
requirements of the statute; and (4) the employer must pay all types of costs
that are unique to arbitration.” (Little
v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076.)
The
Mutual Arbitration Agreement does not limit the remedies available, expressly
permits sufficient discovery, expressly requires Defendant to bear the costs
unique to arbitration, and requires the issuance of a written award by a
neutral arbitrator from the American Arbitration Association. (Wehr Decl. Ex. 1
§§ 1(G), 1(H).)
The
Court finds the Mutual Arbitration Agreement complies with the requirements of Armendariz.
Unconscionability
Plaintiff
also argues the agreement is unenforceable as unconscionable. (Opp. at 9:26-14:7.)
Regardless
of the claim asserted, arbitration agreements are only enforceable if they are
not unconscionable. (Armendariz, supra, 24 Cal.4th at 113; Baxter v.
Genworth N. Am. Corp., (2017) 16 Cal.App.5th 713, 721.).) “Both procedural
and substantive unconscionability must be present for a court to refuse to
enforce a contract, although they need not be present in the same degree.” (Baxter, supra, 16 Cal.App.5th at 721 (citing Baltazar
v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243.) Procedural
unconscionability focuses on (1) “oppression” resulting from unequal bargaining
power that adheres the weaker party to nonnegotiable terms and (2) “surprise”
involving “the extent to which the supposedly agreed-upon terms are hidden in a
prolix printed form drafted by the party seeking to enforce them.” (Flores
v. Transamerica HomeFirst, Inc., (2001) 93 Cal.App.4th 846, 853.)
Substantive unconscionability “focuses on overly harsh or one-sided results
[that lack substantial justification].” (Baxter, supra, 16 Cal.App.5th at 724; see Armendariz, supra, 24 Cal.4th at 117-18.).)
Plaintiff May Demonstrate Some Procedural
Unconscionability
Plaintiff argues the Mutual Arbitration
Agreement suffers from procedural unconscionability based upon the same
arguments raised above regarding fraud in the execution. (Opp. at 10:11-12:1.)
Plaintiff was told the enrollment process was to facilitate Defendant’s change
of payroll and benefits service provider, he was not told about the Mutual
Arbitration Agreement, and the terms of the purported agreement were concealed.
These facts would support a finding of procedural unconscionability. (See
generally Morris v. Redwood Empire
Bancorp (2005) 128 Cal.App.4th 1305, 1321 (“Procedural surprise focuses on
whether the challenged term is . . . beyond the reasonable expectation of the
weaker party.”).) Oppression can be found where, as here, an arbitration
provision is presented as a condition to maintain or obtain job benefits. (See
e.g. OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 127 (“economic pressure
can also be substantial when employees are required to accept an arbitration
agreement in order to keep their job.”).) Accordingly, if Plaintiff’s version
of the facts is fully credited, Plaintiff will have demonstrated a moderate
level of procedural unconscionability.
Plaintiff contends procedural
unconscionability is increased because “Defendant failed to attach any rules to
the arbitration agreement or provide a copy of such rules to Plaintiff, and
Plaintiff was never told where to find them. The purported ‘agreement’ attached
to Ryan Wehr’s declaration does not tell Plaintiff where he can find the rules
if they in fact even exist.” (Opp. at 12:18-21.) However, the Mutual
Arbitration Agreement provides “[t]he arbitration will be held in accordance
with the then current Employment Arbitration Rules of the American Arbitration
Association (‘AAA Rules’). The AAA Rules are available at
www.adr.org/employment, by calling 800.778.7879, or by using an internet search
engine such as Google to locate the ‘AAA Employment Arbitration Rules.’” (Wehr
Decl. Ex. 1 § 1(G).) Moreover, Plaintiff does not contend the applicable
Employment Arbitration Rules of the American Arbitration Association are
substantively unconscionable. Accordingly, any failure to provide the
arbitration rules does not add to procedural unconscionability. (Baltazar,
supra, 62 Cal.4th at 1246; Da Loc Nguyen v. Applied Medical Resources
Corporation (2016) 4 Cal.App.5th 232, 249 (“As to these cases, Baltazar
removed the nonprovision or nonattachment of the AAA rules as a basis for
increasing the procedural unconscionability level.”); Cisneros Alvarez
v. Altamed Health Services Corporation (2021) 60 Cal.App.5th 572,
590 (“the failure to provide a copy of the arbitration rules generally raises
procedural unconscionability concerns only if there is a substantively
unconscionable provision in the omitted rules.”).)
Plaintiff Has Not Demonstrated Substantive
Unconscionability
However, “[b]oth procedural and
substantive unconscionability must be shown for the defense to be established.”
(OTO, supra, 8 Cal.5th at 125.)
Plaintiff argues the Mutual Arbitration
Agreement is substantively unconscionable because it fails to provide adequate
discovery. (Opp. at 13:11-27.) The discovery provision provides:
(v)
The parties have the right to conduct adequate civil discovery, and to present
witnesses and evidence. Each party has the right to: (a) take the deposition of
two individual fact witnesses and any expert witness designated by another
party, (b) propound requests for production of documents to any party, and (c)
subpoena witnesses and documents, including documents relevant to the case from
third parties. Additional discovery may be had by mutual agreement of the
parties, and in the absence of mutual agreement, the Arbitrator will have
exclusive authority to entertain requests for additional discovery and to grant
or deny such requests, based on the Arbitrator’s determination whether
additional discovery is warranted by the circumstances of a particular case.
(Wehr Decl. Ex. 1 § 1(G)(v).) Plaintiff
cites Fitz v. NCR Corp. (2004) 118
Cal.App.4th 702, which is distinguishable. In Fitz, the Court of Appeal addressed
an arbitration provision that expressly limited discovery to two depositions,
and placed a high burden on additional discovery. (Id. at 709 (“both NCR
and the employee have the right to take the sworn deposition statements of two
individuals and, in addition, any expert witnesses expected to testify at the
hearing. . . . No other ‘discovery’ (i.e., depositions or demands for
documents/information ) will be permitted unless the arbitrator finds a
compelling need to allow it. In determining whether a compelling need exists,
the arbitrator will balance the interests of fairness and expediency; the
arbitrator will only override the goal of achieving a prompt and inexpensive
resolution to the dispute if a fair hearing is impossible without additional
discovery.”).) Thus, the Court of Appeal found “we do not believe that an employee
should be forced to demonstrate this impossibility to an arbitrator before
being granted access to the type of discovery that is necessary for a fair
opportunity to vindicate her claim.” (Id. at 719.)
As seen above, no such limitation is
imposed in the parties’ Mutual Arbitration Agreement as it does not require the
arbitrator to deny all discovery unless an employee shows it is “impossible” to
obtain a fair hearing without the requested additional discovery. The Mutual Arbitration
Agreement provides adequate discovery and does not violate Armendariz’s
discovery requirements. (Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th
975, 984 (“We assume that the arbitrator will operate in a reasonable manner in
conformity with the law.”).)
Finally, Plaintiff contends the Mutual
Arbitration Agreement is unconscionable because it “lacks mutuality it does not
include equitable relief, unfair competition and/or the use and/or unauthorized
disclosure of confidential information and allows Defendant to prosecute those
claims in State Court.” (Opp. at 14:2-5.) However, nothing in the Mutual
Arbitration Agreement excludes such claims. The Mutual Arbitration Agreement
only excludes claims for “workers’ compensation benefits, state disability insurance
benefits, or unemployment insurance benefits, . . . claims for benefits under
employee benefit plans covered by ERISA; and disputes that an applicable
federal statute expressly states cannot be arbitrated or subject to a
pre-dispute arbitration agreement” as well as pending class or collective
actions. (Wehr Decl. Ex. 1 § 1(B).) The agreement mutually provides that both
parties may seek provisional injunctive relief in court “only upon the ground
that the award to which that party may be entitled would be ineffectual without
such provisional relief.” (Id. §(C).) Accordingly, Plaintiff has not
demonstrated any substantive unconscionability.
Plaintiff failed to meet his burden to
establish a defense based upon unconscionability.
Conclusion
Defendant Neofect USA, Inc.’s Motion to
Compel Arbitration is CONTINUED.
The Court shall hold an evidentiary
hearing on the continued hearing date to resolve the factual disputes regarding
Plaintiff’s assent to the Mutual Arbitration Agreement and the allegations of
fraud in the execution.