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In denying arbitration of an employment dispute, a federal court in Maine held that application of the "infancy doctrine" presented a question for the court because the issue went to the very existence of the arbitration agreement.
In Foss v. Circuit City Stores, Inc., No. 06-CV-153-P-S, 2007 WL 436083 (D. Me. Feb. 5, 2007), Foss was a few months short of his 18th birthday when he applied for a job at Circuit City through its online application system.
During the online application process, the applicant cannot proceed without consenting to Circuit City's Dispute Resolution Agreement (the Agreement). If the applicant is less than 18 years of age, the applicant is instructed to obtain parental consent to the Agreement.
When directed to obtain parental consent, Foss entered his mother's name as the one consenting to the Agreement. However, his mother denied giving consent. Moreover, when Foss was hired and given a hard copy of the Agreement, Circuit City did not require a parent's signature.
Several months after Foss' 18th birthday, Circuit City terminated his employment. When Foss sued for retaliatory discharge, Circuit City filed a motion to compel arbitration. In opposing the motion, Foss argued that under the "infancy doctrine," no arbitration agreement was ever formed because he was less than 18 years of age when he consented to the Agreement.
In ruling on the motion to compel, the Court first addressed whether application of the infancy doctrine raised a question for the Court or for the arbitrator. In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the Supreme Court explained that "[t]he issue of [a] contract's validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded."
The Court relied on this distinction in holding that application of the infancy doctrine "falls into that narrow category of issues to be decided by the Court and not the arbitrator." Specifically, the Court reasoned that "[t]he claim of infancy goes to the very existence of the contract."
Under the infancy doctrine, the Agreement was invalid because Foss was less than 18 years of age when he agreed to arbitrate. Circuit City attempted to overcome the infancy doctrine by arguing that Foss ratified the Agreement by continuing to work for Circuit City after his 18th birthday. In rejecting this argument, the Court explained that Maine's infancy law requires ratification to be in writing.
This is the second recent decision to apply the distinction identified in footnote 1 of the Buckeye decision. See Ornelas v. Sonic-Denver T, Inc., No. 06-cv-00253-PSF-MJW, 2007 WL 274738 (D. Colo. Jan. 29, 2007) (holding that the effect of a language barrier raised a question for the arbitrator, not the court).
It's important to keep in mind that that Buckeye, in drawing this distinction, did not establish a rule that courts decide whether the underlying contract was ever concluded. Instead, footnote 1 clearly states that Buckeye "does not speak to th[at] issue."
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