[00:00:01] Speaker 00:
May it please the court, Kristen Chapman on behalf of Christina Anthony, I would like to reserve four minutes for rebuttal.

[00:00:09] Speaker 00:
Ritz-Carlton asked the district court to compel arbitration based on false testimony in an altered agreement.

[00:00:15] Speaker 02:
Get a little bit, or maybe speak a little bit louder or closer to the mic. Yes, thank you.

[00:00:19] Speaker 00:
But as I was saying, Your Honor, Ritz-Carlton asked the district court to compel arbitration based on false testimony and an altered agreement, one into which pages had been inserted that Ms. Anthony did not receive until days after she signed. Only after that falsehood was exposed did Ritz-Carlton fall back on the one-page document that Ms. Anthony actually received at the time she signed, one that was largely illegible with small, blurry font, and that was buried in 118 pages of onboarding materials.

[00:00:51] Speaker 00:
The district court compelled arbitration based on that document. Despite Ritz-Carlton's misconduct, despite the lack of mutual consent, and despite the agreement's unconscionability, each of those errors warrants reversal. Subject to the court's questions, I'll address each in turn, starting with the misconduct.

[00:01:09] Speaker 01:
I do have a question. Can you just tell me, did Anthony bring a Representative Paga claim?

[00:01:16] Speaker 00:
She did not, Your Honor, but that unconscionability is determined at the time of formation. So although she did not bring one, it still impacts the unconscionability determination.

[00:01:27] Speaker 00:
And, Your Honor, Ritz-Carlton concedes that the representative action waiver was unenforceable, and thus it is unconscionable. The representative action waiver was also unenforceable as it relates to representative ERISA actions as this court held in Platt v. Sodexo.

[00:01:46] Speaker 00:
So for that ground... But would that...

[00:01:49] Speaker 02:
Would that inure in any way to her benefit if she wasn't asserting a claim? I mean, it would be, you know, unconscionable with respect to a provision that has no applicability here.

[00:02:02] Speaker 00:
Because unconscionability is determined at the time of formation, before any employee knows what their claims are, we look at the whole universe of claims and what is –

[00:02:13] Speaker 02:
So any unconscionable provision, even if it has no application of the case, results in zapping the whole thing?

[00:02:21] Speaker 00:
Here, Your Honor, the representative action waiver is unenforceable as it relates to representative POG actions and representative ERISA actions. And because of that, it is substantively unconscionable because it errs in the favor of Ritz-Carlton. It would deter an employee from bringing any of those claims, thinking that it's unenforceable because an employee doesn't, as a layperson, doesn't have that knowledge and doesn't know that it's unenforceable.

[00:02:47] Speaker 03:
Did you raise that to the district court, the substantive unconscionability arising from the representative capacity waiver?

[00:02:53] Speaker 00:
That was not raised in the district court. The substantive unconscionability was before the court, but the arguments were slightly different. However, this court's review is de novo. So this court has discretion to review it because it's a pure question of law.

[00:03:07] Speaker 00:
And Ritz-Carlton has a chance to respond, so it would not suffer any prejudice.

[00:03:12] Speaker 03:
Do we urge the court? We also need not reach it.

[00:03:15] Speaker 00:
But the court has discretion to do so, and I think there's important public policy reason to do so because it's a term that is unenforceable, and thus it's substantively unconscionable. In Ramirez, the California Supreme Court held a provision there that was violated FIHA, was substantively unconscionable.

[00:03:31] Speaker 03:
Then we'd still need to do a severability analysis after that if we were to reach that.

[00:03:37] Speaker 00:
Yes, Your Honor.

[00:03:37] Speaker 03:
And why is...

[00:03:42] Speaker 03:
Why doesn't the language to the fullest extent allowed by applicable law resolve any substantive unconscionability of that provision?

[00:03:49] Speaker 00:
Because as a layperson, Ms. Anthony would not know what that meant unless she consulted with an attorney. So we should look at it from that perspective because it still inures to Ritz-Carlton's benefit as the more sophisticated party and the drafting party here. There are also additional substantively unconscionable terms or aspects of the agreement one being the failure to inform the employee how to initiate arbitration. In OTO versus COE, the California Supreme Court found that the failure to include that information is substantively unconscionable because it deters employees from bringing claims.

[00:04:27] Speaker 00:
And additionally here, Your Honors, the procedural unconscionability is extremely high, which means that even a low showing of substantive unconscionability suffices to reach the severability analysis.

[00:04:40] Speaker 01:
I want to take you back to your position right now that to the fullest extent allowed by applicable law needs to be reviewed through the eyes of Ms. Anthony here who isn't sophisticated in the law. What's your best argument for that in terms of case law?

[00:04:59] Speaker 01:
Your Honor, I'm sorry, because of the... Well, you said that the reason that that's not like a savings clause for Ritz-Carlton is because Ms. Anthony wouldn't have understood it to mean that she's not a sophisticated employment lawyer. So what case law or anything bolsters your position?

[00:05:21] Speaker 00:
Yes, Your Honor. It goes to the deterrence affected and how it is one-sided and unfair. Substantive unconscionability comes down to the fairness of the terms. So it is substantively unfair because it would deter a layperson who doesn't have that understanding. It also adds to the procedural unconscionability here.

[00:05:41] Speaker 00:
Because in OTO versus CO, the court addressed a different provision, but dealing with fees and as it related to arbitration. And there was a similar opaque savings clause and held that it showed it was procedurally unconscionable because it would create surprise because the layperson would not understand those opaque legal terms. And so here, Your Honors, because the procedural unconscionability is so high, given the contract of adhesion presented for an employment application process where there is inherent economic pressure, the illegibility of the agreement, which adds to the surprise, the opaque language, which we just discussed, additionally, the manner in which it was presented buried in 118 pages of onboarding materials, all adds to the extreme level of procedural unconscionability.

[00:06:31] Speaker 00:
And especially where the contract is difficult to read, as the California Supreme Court held in Fuentes, courts must carefully scrutinize the terms for unfairness and one-sidedness where the contracts are difficult to read. And here, because we have such a high degree of procedural unconscionability, any level of substantive unconscionability suffices. And that's why the district court erred here in not reaching the severability analysis. So we'd ask this court to remand with instructions for the district court to reach that analysis.

[00:07:04] Speaker 01:
And I just want to make sure I understand. You're stating that the acknowledgement being eligible, that goes to substantive or procedural unconscionability?

[00:07:16] Speaker 00:
Procedural honor in our in our brief we argued both but after Fuentes that the substantive unconscionability is foreclosed So it just goes to procedural it also those supports miss Anthony's argument argument as some mutual consent Miss Anthony argues that mutual consent was lacking here which the district court did not address and for two reasons one is the eligibility and the manner in which it was presented and Ms. Anthony did not have notice of the contractual terms because of the illegibility, and she presented expert testimony below that was unrebutted regarding the small font size, the extremely tight line spacing, and the highly pixelated and degraded nature of the font.

[00:07:59] Speaker 00:
Also, the manner in which it was presented did not make the contractual nature of the document obvious. It was part of a 118 DocuSign package.

[00:08:09] Speaker 00:
where the first page was a handbook. Shortly thereafter was a express contract disclaimer. And most of the signatures in that package were acknowledgments of policies of Ritz-Carlton's. It wasn't until page 63 around there that the acknowledgment was buried. So Ms. Anthony did not have notice of the contractual nature of the document. So under California contract law, she cannot be bound by those terms, regardless of any apparent manifestation of assent.

[00:08:39] Speaker 00:
Your honors the second an independent ground for finding no mutual consent here is the The failure the no meeting of the minds your honor when although both parties signed the same document that Ritz-Carlton's objective conduct would lead a reasonable person to believe they were agreeing to the full employment agreement, while Ms. Anthony's conduct in signing, because she only received that one-page document, would lead a reasonable person to believe that she was agreeing only to that page.

[00:09:10] Speaker 03:
What's your authority for that? I mean, we've held it doesn't need to be countersigned. It can simply be on their letterhead. This was a page of a packet that she received. What?

[00:09:24] Speaker 03:
What would allow us to say that Ritz-Carlton did not agree to the short-form agreement that it proffered, or whatever you want to call it?

[00:09:31] Speaker 00:
Your Honor, in one of the cases we cited in our brief, Monster Energy, the court talks about mutual consent. And the parties must agree on the same thing in the same sense. Here, the way that Ritz-Carlton presented the agreement as the full employment agreement and treated the acknowledgment as the signature page is evidence that would lead a reasonable person to believe they were agreeing to the full employment agreement. The full employment agreement contained substantively different terms than the acknowledgement. It wasn't simply just additional information about the procedures involving arbitration.

[00:10:05] Speaker 00:
It was substantive terms as to the time limits, For when claims could be brought about who would decide questions of procedure or arbitrability, it was delegated to the arbitrator in the employment agreement. There was also the representative action waiver in the employment agreement was much more detailed.

[00:10:24] Speaker 03:
Why doesn't the Cruz case that recently came to the party's attention control it?

[00:10:31] Speaker 00:
It's fundamentally different in multiple respects. There was a document that had been incorporated by reference. Here, the employment agreement is not referenced in the acknowledgement of agreement and is not incorporated by reference.

[00:10:45] Speaker 03:
Additionally, the arguments made... Say more about that. So it's an acknowledgement of the agreement. The only agreement that it could be talking about would be the agreement, right?

[00:10:59] Speaker 00:
Not to Ms. Anthony, Your Honor. Ms. Anthony, when she received it as a standalone document, the district court specifically did not find that it was incorporated by reference. And although the court noted it was not reaching the issue, it stated that it found... the acknowledgement did not reference the employment agreement. It was also not called to Ms. Anthony's attention when she received it days later. So it fails the test for incorporation by reference, and it was not incorporated by reference from Ms. Anthony's perspective.

[00:11:29] Speaker 00:
And that goes back to why there was no meeting of the minds, because when Ritz-Carlton signed it, they signed it based on the belief that it was part of this full employment agreement that had substantively different terms. And, Your Honor, I will stop there and save the rest of my time for rebuttal.

[00:11:44] Speaker 02:
All right. Thank you, counsel. We will hear next from Mr. Lindell.

[00:11:57] Speaker 04:
Morning, Your Honors. Todd Mondell on behalf of the Appellee Ritz-Carlton Hotel Company.

[00:12:03] Speaker 04:
I'll start with the meeting of the minds issue. I do think the Cruz v. Kroger case is on point here.

[00:12:09] Speaker 04:
In that case, too, the employer thought they had agreed to both the agreement and the arbitration procedures that had been incorporated by reference. The employee had not seen those arbitration procedures, and yet the court said, you're still bound to the four corners of the agreement by which you agreed to arbitrate your claims.

[00:12:28] Speaker 04:
Those other procedures will not be binding. Rather, the arbitration will be conducted under the CAA. In this case, it would be the Federal Arbitration Act. So I do think that case is on point.

[00:12:40] Speaker 03:
Does it matter that it looks like in Cruz the agreement said, I understand that it is incorporated into this application as though it was set forth? Is there an express incorporation provision?

[00:12:51] Speaker 04:
There's not quite the same language, express incorporation language in that agreement. But I think what the Cruz case is saying is, She was the employee in that case was presented with a document and that document itself is binding. If anything, the fact that it referenced something else that she didn't have might be.

[00:13:12] Speaker 04:
a counterweight against finding that contract enforceable and more enforceable in this case. Because if you just look at the four corners of the contract that Ms. Anthony received, there isn't even a reference to something else. It just says this is an acknowledgment of agreement, and then it has terms to which Ms. Anthony agreed that included all the material terms of the agreement.

[00:13:33] Speaker 02:
So is this the acknowledgment on page 457? Yes, Your Honor.

[00:13:39] Speaker 02:
When she saw it, would it be like that with this big picture crowding it out and shoving it over to the side?

[00:13:45] Speaker 04:
I believe that that is how it appeared in DocuSign.

[00:13:48] Speaker 02:
Does the record say how she saw this? Did she see this whole thing on a phone?

[00:13:52] Speaker 04:
So it was emailed to her. She chose to view it on her phone. That is correct.

[00:13:57] Speaker 02:
So she would have seen this on the little phone screen with this big picture with smiley people taking up half the room. And honestly, I can barely read this. With my reading glasses on, it's a real struggle to even make out what these words are. So why isn't she right that the level of procedural unconscionability is very high, which means that her burden on substantive unconscionability is not that high?

[00:14:25] Speaker 04:
Two points on the illegibility. Actually, it is important that this was sent to her via email, and it makes a difference on how you view it. If I view it on my computer screen from my office, it's quite large and legible. There's not really any problem to view it. She chose to view it on her phone, that's true, but that was an option that she made that was not – You have four days to look at these documents and consider them, and then we're going to have our orientation. Please review and sign the documents before the orientation.

[00:14:55] Speaker 02:
But that's like saying if you have really tiny funds. Well, you could have gone and bought a magnifying glass.

[00:15:00] Speaker 04:
I think it's very different than you could have bought a magnifying glass because in any time you're viewing documents electronically, even the default view changes depending on the device you're looking at. So, you know, she could have viewed it on her phone. She could have just scanned. It's not like you have to go buy something. You can – zoom in, or she could look at it on a computer where the font size, again, on electronic devices, the size of the font really is determined by how you view it on the screen, not by the size of the font in the document. So I think the size of the font itself doesn't make it illegible in that sense.

[00:15:35] Speaker 04:
I agree it's not the cleanest document, right? But when I look at it here, it is quite readable. The other thing I would say is I would... You know, the cases are very clear that even if you cannot read a document, you're still bound to the terms if you agree and sign it. And there's an exception for that if you're not on inquiry notice. And the cases they cite in that regard are cases where a party has no idea they're involved in a contract at all. Some passive behavior. One case they ordered 50,000 pounds of yarn, and they were sent an acknowledgment of order that had an arbitration agreement on it.

[00:16:12] Speaker 04:
They weren't required to sign. They just passively accepted the yarn. And the court said that's not enough to be on inquiry notice that you're signing a contract.

[00:16:22] Speaker 03:
Doesn't Fuentes place this, make it relevant at least to the unconscionability defense?

[00:16:27] Speaker 04:
Sure. It makes it relevant to the procedural unconscionability.

[00:16:30] Speaker 03:
Okay. So on the substantive unconscionability, your friend said that you concede that the representative waiver is unenforceable?

[00:16:38] Speaker 04:
To the extent that is interpreted to waive the representative PAGA rights, that is invalid.

[00:16:45] Speaker 03:
You can see that it can be interpreted that way, given the saving clause?

[00:16:51] Speaker 04:
I mean, there is a savings clause there. The savings clause that she complains about that says to the fullest extent of the law, I think is intended to cabin because this is an area of law that's constantly moving. And so employers are put in a position of trying to say, to their employees, you know, we're asking you to waive your class action rights and your representative rights, but we understand the law is moving in this regard, so we're not going to require you to waive it beyond what the law would allow.

[00:17:22] Speaker 04:
And so this is a moving area of law. The fullest extent of the law is, I think, pretty actually clear language, and particularly in this agreement. It's written – this is not one of those agreements that's written in, you know, legalese and pro-lease.

[00:17:33] Speaker 03:
So, you know, under – Stover and perhaps some other cases that would lead us not to read this to waive representative claims because that's – Once you add that to the fullest extent of the law, I think that's right.

[00:17:47] Speaker 04:
It would not waive the representative PAGA claims.

[00:17:50] Speaker 01:
I would also – Sorry. Does that matter anyway in that Ms. Anthony apparently didn't make any PAGA claims?

[00:17:59] Speaker 04:
She did not make any PAGA claims.

[00:18:00] Speaker 01:
Or non-individual.

[00:18:01] Speaker 04:
I was going to say, it doesn't matter for a couple of additional reasons. You sort of beat me to the punch there. One was, she doesn't bring a PAGA claim here, a representative PAGA claim here. And in addition, there's no cases that have found that the existence of a representative PAGA waiver invalidates an entire agreement. All of the cases from Viking River and all the cases say simply that the existence of that, it makes that provision invalid, but either it can be severed or it doesn't taint the rest of the agreement.

[00:18:31] Speaker 03:
Well, yeah, I guess which one do you think is the better reading of the law? It doesn't taint the formation or that it then requires a severability analysis?

[00:18:42] Speaker 04:
I think either way, we win here. I think the better reading of the law is that it doesn't taint the rest of the agreement, particularly when you have the language that Your Honor has referenced to the fullest extent of the law, where The employer is not trying to trick the employee here or add oppressive contract provisions. It's simply trying to do what is allowed under the law. So I don't think it would taint the rest of the agreement, I think, is the better reading. But either way, I think all of the cases say it can be severed and should be severed and not.

[00:19:14] Speaker 01:
Council, I want to bring you back really quickly. We were talking about the document being illegible.

[00:19:21] Speaker 01:
When it's provided to Ms. Anthony, is it a PDF? I've zoomed onto it, and I cannot read it. It's almost worse because I've zoomed in. If you zoom in too far, I acknowledge. No, I mean if I zoom in at all. And I'm not trying to be difficult. I'm just curious.

[00:19:38] Speaker 01:
When it's presented to a potential employee, is it a PDF? Is it some scanned document that they then get an email copy of, or is it some sort of web-based?

[00:19:49] Speaker 04:
It's DocuSign. So my understanding, I mean, the DocuSign, we have sort of Ms. Hunter's explanation of what the DocuSign is. DocuSign, the ones that I've ever participated in are PDFs, and you click through and it has the places for you to sign.

[00:20:03] Speaker 03:
But is it scanned in such a way? I mean this looks like it's been through a copier three too many times.

[00:20:09] Speaker 04:
I think that's probably the way it appeared. I mean the evidence we have is that's how – this is the evidence that we have of the record of what it looked like. So I'm not disputing that there's some blurriness to that document. I would also add though that – Even if we were forced into an inquiry notice analysis where because, you know, she's still bound to the terms if she's on inquiry notice that she's entering into a contract. And if you'll notice, the very top of the agreement says acknowledgement of agreement.

[00:20:41] Speaker 04:
That is readable even on a phone. I mean, it's bold. It's small caps. It says anyone who reads that has to keep in mind they are acknowledging what? An agreement. And then if you look at the bottom right by her signature page, it says agreement between. And then it has print name, employee, again in caps. And then below that print name, Ritz-Carlton. And so again, agreement between. But just between those two points, Your Honors, I think that the employee is definitely on inquiry notice that what you're signing here is a contract.

[00:21:16] Speaker 04:
And therefore, even if it's unreadable, and I dispute that it's unreadable, I'm standing here saying, And from my eyes, I can read it. Now, maybe my vision's just better. But on a phone, if you put it on a bigger screen, Brits Carlton, I stress, did not require her to use it on the phone.

[00:21:32] Speaker 02:
It's not easy on the eyes. It takes a little bit of proactive effort.

[00:21:37] Speaker 04:
Fair enough. It does take some proactive effort. I wouldn't dispute that, Your Honor. But even with that proactive effort, I think that the acknowledgement of agreement on the top doesn't take proactive effort, and the agreement between next to the signature lines doesn't take proactive effort. And so I think that that, at minimum, puts her on inquiry notice that by signing this document, you're entering into an agreement between you and Ritz-Carlton. And Make the proactive effort to determine what terms you're agreeing to would be my argument.

[00:22:08] Speaker 04:
So I don't think the illegibility is an issue that goes to the making of the contract in this case. Because there is inquiry notice at minimum, I actually think the document's readable enough, even if it might take some degree of effort. The rest of the wording of the language, and if you do a procedural unconscionability analysis, the rest of the language in the agreement is written in ordinary language. It's not legalese or prolix.

[00:22:38] Speaker 04:
It's meant to be understandable for employees who are applying for these jobs. And so procedural unconscionability here, I think, is actually quite low. And if you get to the substantive unconscionability analysis, I do think it's important that they keep saying the district court erred by not doing a severability analysis. But of course, they didn't bring these issues to the district court's attention. The only issue they raised on substantive unconscionability before the district court was that they asserted it was unconscionable because the contract did not set forth all of the requirements of Armendariz's.

[00:23:14] Speaker 04:
But the district court held that where an arbitration agreement is silent on those factors, courts simply read those factors into the agreement. And that's the correct analysis of the law. Notably, they don't challenge the district court's finding on that. So the one thing that they pointed to substantive unconscionability to the district court, the district court found was not substantive unconscionability. And now they don't challenge that issue On appeal, they raise other issues on appeal. So I would urge the court to find forfeiture under these circumstances.

[00:23:46] Speaker 01:
What's our standard of review?

[00:23:48] Speaker 04:
Standard of review on, it's de novo on the motion to compel arbitration. I think it would be abusive discretion on, we didn't talk about the misconduct issues, but they were asking the court to exercise some equitable authority to find even a valid agreement not binding. And on that issue, when you're talking about the court's exercise of its own equitable authority, that would be not just an oval review. That would be you defer to the trial court, the district court's discretion in that regard.

[00:24:18] Speaker 04:
I want to just mention, because they do rely pretty heavily on the Otto v. Coe case, and she mentioned an oral argument. That case is very distinguishable from ours. The circumstances there, procedural unconscionability was extremely high for reasons that are not here. The employee was given a stack of documents and told to read them immediately, had five minutes to sign. Another employee stood there waiting while the employee was signing, the plaintiff was signing the agreement. That employee that was waiting was a low-level employee that couldn't even answer any questions about the documents that he was given.

[00:24:56] Speaker 04:
The court says the agreement is a paragon of prolixity. Sentences are complex, filled with statutory references and legal jargon. One sentence is 12 lines long.

[00:25:08] Speaker 04:
And it says the agreement appears to have been drafted with an aim to afford rather than promote understanding. That was the level of procedural unconscionability in the Coe case. And that's simply not the same here. This agreement is written in a way that's in purposefully intended to be understandable by a layperson, understandable by an employee. It's written in plain language. So I think procedural unconscionability was very low. And there, substantive unconscionability was – it ended up being remanded on substantive unconscionability because there was a dispute over whether one of the agreements – included a one-way provision that only forced one party into arbitration and not the other, so there needed to be some fact-finding on that.

[00:25:49] Speaker 04:
But if that was the case, that's obviously very substantively unconscionable, as opposed to this case where our agreement makes very clear that both sides are required to waive their right to jury trial and bring any claim into arbitration, regardless of which party brought it. So there's a full mutuality in our agreement.

[00:26:12] Speaker 04:
If the court has no other questions, I'll submit.

[00:26:15] Speaker 02:
All right. Thank you, counsel. All right. We'll hear rebuttal.

[00:26:28] Speaker 00:
Your Honor, three points in rebuttal. First, as to the lack of mutual consent due to the difficult-to-read nature of the document, it's important to keep in mind that Ritz-Carlton had control over how it provided it to employees. It sent it via email. Many Americans rely solely on their phone, so it had to have presented in a manner that a person could look at it on their phone or on the computer.

[00:26:52] Speaker 02:
Does the record say anything about When you went into the DocuSign process, did then the document pop up in a separate window that, you know, would occupy the whole screen of the phone? Does it say anything about that?

[00:27:05] Speaker 00:
I don't know if it says anything about that, but I believe in one of Ms. Anthony's declarations, either hers or counsel, it talks about how DocuSign takes you from signature page or signature spot to signature spot. I believe the certificate of completion, which is in the record, says there were about 39 signatures in this document. Most of them were acknowledgments of Ritz-Carlton's policies. The very first one was the acknowledgment of the handbook, and that came after the express announcement contract disclaimer in the About the Handbook page.

[00:27:37] Speaker 00:
So going through it, it's buried in the middle of this document where most of the signatures are to policies that she's saying she acknowledges them, and if she violates them, she'll be disciplined, that kind of thing, not an agreement where you're waiving your right to a jury trial. And there's no evidence in the record that when Mr. Flynn told her She needed to sign. It was a matter of urgency that he told her it contained an arbitration provision. Your Honor, quickly moving on to the issue of substantive unconscionability about the PAGA action waiver. It's not in the briefs.

[00:28:08] Speaker 00:
It came out on April 24th. It's a California Court of Appeal case called Stoker v. Blue Origin. And the Westlaw number is 2026WL.

[00:28:19] Speaker 00:
1 1 4 2 0 9 2 and there the court held a representative paga at a published case. Yes Held the representative paga waiver was substantively unconscionable and if my memory serves me, correct There's a footnote in that case that says it was irrelevant that the plaintiff did not bring representative paga action in that case and last year on an

[00:28:42] Speaker 02:
Focusing on the misconduct issue... Did you submit a 28J letter with that?

[00:28:47] Speaker 00:
I did not, Your Honor, but I'm happy to do so after today.

[00:28:49] Speaker 02:
Okay, and then they can file a response.

[00:28:52] Speaker 00:
Yes, Your Honor.

[00:28:54] Speaker 00:
To the misconduct issue...

[00:28:56] Speaker 00:
Your Honor, the undisputed facts in the record undermine any claim that Ms. Hunter's initial declaration was an innocent mistake. The document itself, the employment agreement she attached to her agreement, does not have the DocuSign ID markings at the top of the page. Every single one of the 118 pages of the onboarding materials Ms. Anthony received had that marking, even if it didn't require a signature. Ms. Hunter, as someone with demonstrated knowledge of the DocuSign process, should have known that was not sent via DocuSign.

[00:29:29] Speaker 00:
Additionally, in Ms. Hunter's reply declaration, she provides no explanation for her misstatement. She said she was unaware that Ms. Anthony did not receive it at the same time as the acknowledgement, but she does not explain how that was possible given her initial declaration was made based on personal knowledge. She also does not address her sworn statement that the document she attached to her declaration was in Ms. Anthony's personnel file when the undisputed evidence shows that was false.

[00:29:59] Speaker 00:
And, Your Honor, even if this court doesn't reach the misconduct issue, because the district court applied the wrong legal standard, which was error and prejudicial here given the facts, it should remand for the district court to address it in the first instance.

[00:30:13] Speaker 02:
All right. Thank you, counsel. The case just argued will be submitted for decision.