1

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

BLANCA CARRILLO,

Plaintiff,

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§

§

§

§

v. EP-20-CV-00147-PRM-ATB

ROICOM USA, LLC,

Defendant,

ORDER DENYING MOTION TO COMPEL ARBITRATION AND TO STAY 

PROCEEDINGS PENDING ARBITRATION

On this day, the Court considered Defendant’s Motion to Compel Arbitration and to Stay 

Proceedings Pending Arbitration (“Defendant’s Motion”), filed by Defendant ROICOM USA, 

LLC (“ROICOM”). On July 29, 2020, this matter was referred to this Court by United States 

District Judge Philip Martinez for Determination pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule 

1(c) of Appendix C of the Local Court Rules of the United States District Court for the Western 

District of Texas. (ECF. No. 9).

For the reasons set forth below, IT IS HEREBY ORDERED that Defendant’s Motion to 

Compel Arbitration and to Stay Proceedings Pending Arbitration is DENIED.

I. BACKGROUND

a. Procedural Background

“Plaintiff’s Original Complaint” (“Complaint”) was filed in the United States District 

Court for the Western District of Texas, El Paso Division, on May 21, 2020, by Plaintiff Blanca 

Carrillo (“Carrillo”), alleging claims of retaliation under the False Claims Act pursuant to Title 31 

U.S.C. §3730(h). (ECF No. 1). On July 27, 2020, ROICOM filed Defendant’s Motion seeking to 

stay the proceedings and to immediately refer it to binding arbitration pursuant to an arbitration 

agreement. (ECF No. 8, p. 3). 

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After being granted an extension of time to file her response (Text Order dated July 31, 

2020), Carrillo filed her “Plaintiff’s Response in Opposition to Defendant’s Motion for Stay and 

to Compel Arbitration” (“Plaintiff’s Response”) on August 10, 2020. (ECF No. 13). Thereafter, 

ROICOM filed “Defendant’s Reply to Plaintiff’s Response in Opposition to Defendant’s Motion 

to Compel Arbitration” (“Defendant’s Reply”) on August 17, 2020. (ECF No. 15). 

After being granted leave to file her surreply (Text Order dated August 24, 2020), Carrillo 

filed her “Plaintiff’s Surreply in Response to Defendant’s Reply to Plaintiff’s Response to 

Defendant’s Motion for Stay and to Compel Arbitration” (“Plaintiff’s Surreply”) on August 24, 

2020. (ECF No. 19). After being granted leave to file its surreply (Text Order dated August 31, 

2020), ROICOM filed its “Defendant’s Surreply to Plaintiff’s Surreply in Opposition to 

Defendant’s Motion to Compel Arbitration” (“Defendant’s Surreply”) on August 31, 2020. (ECF 

No. 21).

b. Factual Background1

The undisputed facts of this case are as follows, unless otherwise noted:

In the fall of 2017, Carrillo was hired by ROICOM to conduct quality control. (ECF No. 

13-1, p. 2); (ECF No. 13, p. 1). ROICOM is a company which creates equipment and uniforms 

for United States military personnel. (ECF No. 1, p. 2 ⁋ 7); (ECF No. 5, p. 2 ⁋ 7). ROICOM is a 

related company of ReadyOne Industries, Inc. (“ReadyOne”). (ECF No. 1, p. 2 ⁋ 6) (“ROICOM 

is the for-profit sister company to ReadyOne Industries, Inc.”); (ECF No. 5, p. 2 ⁋ 6) (ROICOM 

“is a wholly – owned [sic] subsidiary of ReadyOne Industries, Inc.”).

1 While recounting the factual background, the Court addresses only the facts relevant to this Order.

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When Carrillo was hired by ROICOM, a company representative (“Representative”)2

handed Carrillo a one-page document “Receipt and Arbitration Acknowledgement” 

(“Acknowledgement Form”) for her signature, along with numerous other forms. (ECF No. 13-1, 

p. 2). According to Carrillo, the ROICOM Representative knew that Carrillo did not speak or read 

English, and the two spoke with each other exclusively in Spanish.3 (Id.). When presenting the 

Acknowledgement Form to Carrillo, the ROICOM Representative informed Carrillo that she “had 

to sign this document to be able to register and be put on payroll with ROICOM.” (Id.). The 

ROICOM Representative also told Carrillo that she “had to sign the document to be able to work 

at the company.” (Id. at p. 3).

Attached to Defendant’s Motion in the initial affidavit of Ronaldo Alvarez (“Alvarez”), the 

Director of Human Resources and Compliance for ReadyOne, ROICOM provides the 

Acknowledgement Form, written exclusively in English, with Carrillo’s signature on it. (ECF No. 

8-1, p. 13). The Acknowledgement Form states that by signing the document, “[the employee] 

acknowledge[s] that [they] have received ad [sic] read (or had the opportunity to read) the Mutual 

Agreement to Arbitrate Claims, effective October 01, 2007.” (Id.)

4

In Plaintiff’s Response, Carrillo asserts that the Acknowledgement Form she received was 

only in English. (ECF No. 13, p. 5). However, in Alvarez’s amended and supplemental affidavit 

attached to Defendant’s Reply, Alvarez asserts that the Acknowledgement Form is “a two — sided

[sic] document in English on one side and Spanish on the other. Ms. Carrillo signed the English 

2 Carrillo indicates the Representative was “a person named ‘Kristy’ from Human Resources of ROICOM.” (ECF 

No. 13-1, p.2). ROICOM does not provide any evidence regarding the identity or actions of the Representative. See 

(ECF No. 15).

3 Carrillo states in her affidavit that she “do[es] not speak or read English[, and she] only speak[s] or read[s] Spanish.” 

(ECF No. 13-1, p. 2).

4 Although the Acknowledgement Form misidentifies the title of the arbitration agreement as “Mutual Agreement to 

Arbitrate Claims” instead of “Mutual Agreement to Arbitrate,” neither party asserts this misidentification is material 

to the legal status of the arbitration agreement.

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side . . . . [T]he document signed by Ms. Carrillo contained both an English side and a Spanish 

side.” (ECF No. 15-1, p. 3) (emphasis added). The Spanish-language Acknowledgement Form, 

however, is unsigned and does not contain any of Carrillo’s identifying information. (Id.). 

Even with the newly produced Spanish-language Acknowledgement Form, “Carrillo 

stands behind her affidavit testimony that she was only provided the ‘Acknowledgement Form’ in 

English – not in Spanish.” (ECF No. 19, p. 6). According to Carrillo, she only signed the English 

version of the Acknowledgement Form because she relied upon the ROICOM Representative’s

representations about the Acknowledgement Form and thus believed it was “necessary to make 

sure that [she] was going to be registered on the company’s payroll.” (ECF No. 13-1, p. 3).

ReadyOne keeps, in its regular course of business, English and Spanish-language versions 

of the “Mutual Agreement to Arbitrate” (“Arbitration Agreement”), which is the “arbitration 

program adopted by ReadyOne on October 1, 2007, for all employees, including affiliated 

companies of ReadyOne such as ROICOM.” (ECF No. 15-1, p. 3). ROICOM has never provided 

Carrillo with an English or Spanish-language copy of the Arbitration Agreement, nor has Carrillo

ever seen or been given the opportunity to review the Arbitration Agreement in English or in 

Spanish. (ECF No. 13, p. 2); see (ECF No. 15-1, p. 2-3). 

II. LEGAL STANDARDS

a. Motion to Compel Arbitration

Section 2 of the Federal Arbitration Act (“FAA”) provides that agreements to arbitrate are 

“valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.” 9 U.S.C. § 2. Under the FAA, the court must perform a two-step 

inquiry to determine whether to compel a party to arbitrate. Dealer Computer Services, Inc. v. Old 

Colony Motors, Inc., 588 F.3d 884, 886 (5th Cir. 2009). “[T]he first task of a court asked to compel 

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arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.” 

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985); see also 

Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (“In adjudicating a 

motion to compel arbitration under the Federal Arbitration Act, courts begin by determining 

whether the parties agreed to arbitrate the dispute.”). The second step for the court to determine

is “whether federal statute or policy renders the claims nonarbitrable.” Dealer Computer Services, 

588 F.3d at 886.

Courts divide the first step of the analysis—whether the parties agreed to arbitrate the 

dispute in question—into two separate determinations: “(1) whether there is a valid agreement to 

arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that 

arbitration agreement.” Title v. Enron Corp., 463 F.3d 410, 418 (5th Cir. 2006) (quoting Webb v. 

Investacorp, 89 F.3d 252, 258 (5th Cir. 1996)); see also Dealer Computer Services, 588 F.3d at 

886 (“The courts divide the first step into two more questions: whether a valid agreement to

arbitrate exists and whether the dispute falls within that agreement.”). Due to the “federal policy 

favoring arbitration,” the “ambiguities as to the scope of the arbitration clause itself [should be] 

resolved in favor of arbitration.” Volt Information Sciences, Inc. v. Board of Trustees of Leland 

Stanford Junior University, 489 U.S. 468, 476 (1989); see also Fleetwood Enterprises, 280 F.3d 

at 1073 (“In determining whether the dispute falls within the scope of the arbitration agreement, 

ambiguities are resolved in favor of arbitration.”) (internal quotes and punctuation omitted). 

“However, this federal policy favoring arbitration does not apply to the determination of whether 

there is a valid agreement to arbitrate between the parties; instead ordinary contract principles 

determine who is bound.” Fleetwood Enterprises, 280 F.3d at 1073 (internal quotes omitted); see 

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also Volt Information Sciences, 489 U.S. at 478 (“[T]he FAA does not require parties to arbitrate 

when they have not agreed to do so.”). 

The Supreme Court has held that, since the FAA is merely a “policy guaranteeing the 

enforcement of private contractual arrangements, [courts should] look first to whether the parties 

agreed to arbitrate a dispute, not to general policy goals, to determine the scope of the agreement.”

E.E.O.C. v. Waffle House, 534 U.S. 279, 294 (2002) (internal citations omitted). Furthermore, the 

Court reiterated that “[i]t goes without saying that a contract cannot bind a nonparty.” Id. Finally, 

in resolving issues regarding the existence of an agreement to arbitrate, the Fifth Circuit has held 

that “courts apply ordinary state-law principles that govern the formation of contracts.” Carter v. 

Countrywide Credit Industries, Inc., 362 F.3d 294, 301 (5th Cir. 2004) (emphasis added).

b. Magistrate Judge Authority

When a court considers a motion to compel arbitration and there is “a challenge to contract 

enforcement or validity [of the arbitration agreement’s contents], the argument is properly heard 

by the arbitrator . . . [but if there] is a question of contract formation, the court may hear it.” 

Maravilla v. Gruma Corporation, 783 F. App’x 392, 395 (5th Cir. 2019); Dealer Computer 

Services, 588 F.3d at 886-87 (“the courts generally do not delve further into the substance of the 

parties’ disputes”); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-

04 (1967) (holding that if the claim “goes to the ‘making’ of the agreement to arbitrate . . . the 

federal court may proceed to adjudicate it”); Edwards v. Doordash, Inc., 888 F.3d 738, 744 (5th 

Cir. 2018) (“In deciding whether the agreement to arbitrate exists, federal courts do not consider 

general challenges to the validity of the entire contract . . . [but] are permitted to consider 

arguments about contract formation.”); Prevot v. Phillips Petroleum Co., 133 F. Supp. 2d 937, 939 

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(S.D. Tex. 2001) (“a claim of procedural unconscionability . . . [is] for the Court to decide when 

[it] relate[s] specifically to the arbitration clause”).

Section 3 of the FAA provides in relevant part: 

[i]f any suit or proceeding be brought in any of the courts of the United States upon 

any issue referable to arbitration under an agreement in writing for such arbitration, 

the court in which such suit is pending, upon being satisfied that the issue involved 

in such suit or proceeding is referable to arbitration under such an agreement, shall 

on application of one of the parties stay the trial of the action until such arbitration 

has been had in accordance with the terms of the agreement . . . . 

9 U.S.C. § 3 (emphasis added).

Section 636(b)(1) of Title 28 of the United States Code grants magistrate judges the

authority to consider and handle both non-dispositive and dispositive pretrial matters, subject to 

different standards of review by a district court judge. Section 636(b)(1)(A) permits a district 

judge to “designate a magistrate judge to hear and determine any pretrial matter before the court,” 

except for:

a motion for injunctive relief, for judgment on the pleadings, for summary 

judgment, to dismiss or quash an indictment or information made by the defendant, 

to suppress evidence in a criminal case, to dismiss or to permit maintenance of a 

class action, to dismiss for failure to state a claim upon which relief can be granted, 

and to involuntarily dismiss an action.

28 U.S.C. 636(b)(1)(A). The district judge may review and reconsider any pretrial matter decided 

by a magistrate judge under the authority of subparagraph (A) when “it has been shown that the 

magistrate judge’s order is clearly erroneous or contrary to law.” Id.

In addition to Section 636, Federal Rule of Civil Procedure 72 outlines a magistrate judge’s 

authority regarding pretrial matters while distinguishing between dispositive and non-dispositive 

matters. It provides that “[w]hen a pretrial matter not dispositive of a party’s claim or defense is 

referred to a magistrate judge to hear and decide, the magistrate judge must . . . when appropriate, 

issue a written order stating the decision.” Fed. R. Civ. P. 72(a). Further, “[t]he district judge in 

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the case must consider timely objections [to the magistrate judge’s order] and modify or set aside 

any part of the order that is clearly erroneous or is contrary to law.” Id. However, for dispositive 

motions, “[t]he magistrate judge must enter a recommended disposition, including, if appropriate, 

proposed findings of fact.” Fed. R. Civ. P. 72(b)(1). 

The Supreme Court has held that the Constitution requires that Article III judges exercise 

final decision-making authority. U.S. v. Raddatz, 447 U.S. 667, 682-83 (1980). Given the 

constitutional concerns regarding magistrate judges making dispositive rulings, courts do not 

confine application of Section 636(b)(1)(B) to the eight “exceptional motions” listed in Section 

636(b)(1)(A); rather, “they instead key their review to the underlying considerations of the 

dispositive-nondispositive dichotomy.” Tige Boats, Inc. v. Interplastic Corp., No. 1:15-CV-0114-

P-BL, 2015 WL 9268423, at *2 (N.D. Tex. Dec. 21, 2015) (internal quotes omitted).

The Fifth Circuit has not directly ruled on whether a motion to compel arbitration is a 

dispositive or non-dispositive motion for purposes of 28 U.S.C. § 636. Lee v. Plantation of 

Louisiana, L.L.C., 454 F. App’x 358, 360 n 3 (5th Cir. 2011) (“[W]e need not reach the question 

of whether a motion to compel arbitration is a dispositive or non-dispositive motion for purposes 

of the standard of review by the district judge of the magistrate judge’s order.”). However, other 

circuit courts, including the First and Third Circuits, have concluded that a motion to compel 

arbitration is a non-dispositive motion within the jurisdiction of a magistrate judge. See, e.g.,

Virgin Islands Water & Power Auth. v. Gen. Elec. Int’l Inc., 561 F. App’x 131, 133-34 (3d Cir. 

2014); Next Step Medical Co., Inc. v. Johnson & Johnson Intern., 619 F.3d 67, 69 n. 2 (1st Cir. 

2010) (“In this circuit, motions to compel arbitration are non-dispositive motions.”); PowerShare, 

Inc. v. Syntel, Inc., 597 F.3d 10, 13-14 (1st Cir. 2010). 

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Additionally, all four federal judicial districts in Texas have held motions to compel 

arbitration to be non-dispositive matters. See, e.g., Campanile Investments LLC v. Westmoreland 

Equity Fund LLC, No. SA-17-CV-00337-FB, 2019 WL 2213877, at *1 n. 2 (W.D. Tex. May 22, 

2019) (“Because the denial of a motion to compel arbitration is non-dispositive, the [magistrate 

judge] can issue an order rather than a report and recommendation.”); Adams v. Energy Transfer 

Partners, No. 2:16-CV-400, 2017 WL 2347425, at *1 (S.D. Tex. May 30, 2017) (holding that a 

motion to compel arbitration is non-dispositive); Archer & White Sales, Inc. v. Henry Schein, Inc., 

No. 2:12–CV–572–JRG, 2016 WL 7157421, at *2 (E.D. Tex. Dec. 7, 2016) (finding the magistrate 

judge’s order regarding the motion to compel arbitration to be “a nondispositive matter”), aff’d, 

878 F.3d 488 (5th Cir. 2017), vacated and remanded on other grounds, 139 S. Ct. 524 (2019); 

Tige Boats, 2015 WL 9268423, at *3 (“Because the Magistrate Judge did not recommend 

dismissal, the Court views the motion as nondispositive in nature.”).

Finally, no circuit court has held that a motion to compel arbitration is a dispositive motion 

outside the jurisdiction of a magistrate judge. Like the Fifth Circuit, the Eleventh Circuit recently 

declined the opportunity to hold that magistrate judges do not have the authority to issue orders 

regarding motions to compel arbitration. Getz v. ViaSat Inc., No. 19-11117-FF, 2019 WL 

2613183, at *1 (11th Cir. May 13, 2019) (holding that the Eleventh Circuit lacked jurisdiction to 

hear direct appeal of magistrate judge’s order denying a party’s motion to compel arbitration and 

to stay or dismiss proceedings while not addressing the issue of whether the magistrate judge’s 

order was dispositive or nondispositive).

III. ANALYSIS

In Plaintiff’s Response to Defendant’s Motion, Carrillo makes two arguments: (1) that 

Defendant’s Motion must be denied because ROICOM failed to establish that an arbitration 

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agreement exists between Carrillo and ROICOM; and (2) that Defendant’s Motion must be denied

because the Arbitration Agreement is procedurally unconscionable.

a. An Arbitration Agreement Facially Exists Between Carrillo and ROICOM

Carrillo first argues that Defendant’s Motion should be denied because ROICOM fails to 

establish that an arbitration agreement exists between ROICOM and Carrillo. (ECF No. 13, p. 3). 

The question of “whether there is a valid agreement to arbitrate between the parties” is 

determined according to state law. Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th 

Cir. 2004) (quoting Webb, 89 F.3d at 258); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 

944 (1995) (when deciding whether the parties entered into an agreement to arbitrate, “courts 

generally . . . should apply ordinary state-law principles that govern the formation of contracts.”). 

Both parties agree that Texas state law applies. See (ECF No. 13, p. 3) (Carrillo applying Texas 

state law to this issue); (ECF No. 15, p. 2-3) (ROICOM applying Texas state law to this issue). 

Under Texas state law, “the party seeking to compel arbitration bears the burden of 

establishing the existence of an agreement to arbitrate.” Trujillo v. Volt Management Corp., EP19-CV-00337-DCG, 2020 WL 1906097, at *2 (W.D. Tex. Apr. 17, 2020); see also Kmart Stores 

of Texas, LLC v. Ramirez, 510 S.W.3d 559, 565 (Tex. App. 2016) (“The burden of establishing an 

arbitration agreement’s existence is evidentiary and runs with the party seeking to compel 

arbitration.”) (quoting United Rentals, Inc. v. Smith, 445 S.W.3d 808, 812 (Tex. App. 2014)). 

Accordingly, ROICOM “must prove by a preponderance of the evidence” that an arbitration 

agreement exists. Trujillo, 2020 WL 1906097, at *2. “While there is a strong federal policy 

favoring arbitration, the policy does not apply to the initial determination whether there is a valid 

agreement to arbitrate.” Banc One Acceptance Corp., 367 F.3d at 429.

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Carrillo argues that ROICOM has not met its burden to establish that an arbitration 

agreement exists between Carrillo and ROICOM because “[t]he Arbitration Agreement does not 

contain Carrillo’s signature and [it] references only one Company – ReadyOne Industries, Inc. [–

] . . . [and] does not reference Defendant, ROICOM, Inc.” (ECF No. 13, p. 3) (citing ECF No. 8-

1, p. 7). Finally, Carrillo argues that ROICOM “has failed to show that Carrillo worked for or had 

any relationship with ReadyOne Industries, Inc. – the only Company to which the Arbitration 

Agreement refers.” (ECF No. 13, p. 3). Thus, Carrillo claims that “the Arbitration Agreement 

does not establish an agreement between [the parties].” (ECF No. 13, p. 3).

First, the Court addresses the issue of whether the Arbitration Agreement binds ROICOM. 

The Supreme Court of Texas has held that “arbitration agreements generally do not apply to all 

corporate affiliates.” In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191 (Tex. 2007). In 

Merrill Lynch Trust, two subsidiaries sought to compel arbitration under the arbitration clause 

found in agreements between the plaintiffs and the subsidiaries’ parent company. Id. at 187. These

agreements between the plaintiffs and the parent company “referred to some affiliates and third 

parties, but not [the defendant affiliates].” Id. at 191. In fact, the defendant affiliates “signed their 

own contracts with the plaintiffs, which had no arbitration clauses.” Id. Therefore, the Supreme 

Court of Texas held that the defendant affiliates could not compel arbitration since “allowing these 

affiliates to compel arbitration would effectively rewrite their contracts.” Id.

Unlike Merrill Lynch Trust, the Court finds that the Arbitration Agreement binds ROICOM 

as an affiliated company of ReadyOne. First, the Arbitration Agreement defines “Company” as 

ReadyOne as well as “affiliates or related companies” of ReadyOne. Compare (ECF No. 15-1, p. 

4) (emphasis added), with Merrill Lynch Trust, 235 S.W.3d at 191 (where arbitration agreement 

did not refer to defendant affiliates). It is undisputed that ROICOM is a related company of 

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ReadyOne. (ECF No. 1, p. 2 ⁋ 6) (“ROICOM is the for-profit sister company to ReadyOne 

Industries, Inc.”); (ECF No. 5, p. 2 ⁋ 6) (ROICOM “is a wholly — owned [sic] subsidiary of 

ReadyOne Industries, Inc.”). Second, both Alvarez’s sworn original and amended affidavits allege 

that the Arbitration Agreement was “adopted by ReadyOne on October 1, 2007, for all employees, 

including affiliated companies of ReadyOne such as ROICOM.” (ECF No. 8-1, p. 1); (ECF No. 

15-1, p. 3). 

Carrillo argues that the Supreme Court of Texas has found that “corporate affiliates are 

generally created to separate the businesses, liabilities, and contracts of each. Thus, a contract 

with one corporation – including a contract to arbitrate disputes – is generally not a contract with 

any other corporate affiliates.” (ECF No. 13, p. 3) (quoting Merrill Lynch Trust, 235 S.W.3d at 

191) (internal citations omitted). However, this general principle is not applicable in the instant 

case since the Arbitration Agreement specifically referred to “all . . . affiliated or related companies 

of [ReadyOne].” (ECF No. 15, p. 4). Consequently, the Court finds that ROICOM has met its 

burden in establishing that ROICOM was a party to the Arbitration Agreement.

Next, the Court addresses the issue of whether the Arbitration Agreement applies to 

Carrillo. “Arbitration is a matter of contract and, generally, it cannot be compelled for an issue 

involving a non-signatory to the arbitration agreement.” Elkjer v. Scheef & Stone, L.L.P., 8 F. 

Supp.3d 845, 851 (N.D. Tex. 2014); see also Grigson v. Creative Artists Agency L.L.C., 210 F.3d 

524, 528 (5th Cir. 2000). Neither Carrillo’s name nor signature appear anywhere on the English

version or Spanish version of the Arbitration Agreement. See (ECF No. 15-1, p. 4-13). Instead, 

ROICOM has produced the Acknowledgement Form, signed by Carrillo, which states in pertinent 

part: “[b]y [the employee’s] signature below, [the employee] acknowledge[s] that [the employee] 

received ad [sic] read (or had the opportunity to read) the [Arbitration Agreement] . . . .” (ECF 

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No. 15-1, p. 14). Additionally, the Acknowledgement Form states in pertinent part that the 

employee “acknowledge[s] that [the Acknowledgement Form] includes a mandatory company 

policy requiring that certain claims or disputes (that cannot otherwise be resolved between the 

Company and [the employee]) must be submitted to an arbitrator, rather than a judge and jury in 

court.” (ECF No. 15-1, p. 14). 

Given that Carrillo began working at ROICOM in the fall of 2017, the Arbitration 

Agreement, which was adopted by ReadyOne and ROICOM continually since October 1, 2007, 

was in effect at the beginning and throughout the time of Carrillo’s employment. (ECF No. 1, p. 

2 ⁋ 8) (“Carrillo started working at ROICOM in or around October 2017 . . .”); (ECF No. 5, p. 2 ⁋ 

8) (“[ROICOM] admits [Carrillo] started working at ROICOM in or around November 2017 . . 

.”); see (ECF No. 15-1, p. 3) (the Arbitration Agreement was “adopted by ReadyOne on October 

1, 2007, for all employees, including affiliated companies of ReadyOne such as ROICOM.”). 

Even after Carrillo’s termination from ROICOM, the Arbitration Agreement is still applicable to 

Carrillo as the Arbitration Agreement provides that the “Agreement shall survive the employeremployee relationship between the Company and the Claimant and shall apply to any Covered 

Claim whether it arises or is asserted during or after termination of the Claimant’s employment 

with the Company . . . .” See (Id. at 7). Assuming, arguendo, that the Acknowledgement Form is 

a valid contract between Carrillo and ROICOM, the Court finds that the Acknowledgement Form 

provides sufficient support for ROICOM’s assertion that Carrillo was a signed party to the 

arbitration agreement.

Finally, the Court addresses the issue of whether there was an agreement between

ROICOM and Carrillo. “Although a party may argue a contract was never formed, by signing a 

contract, he is presumed to have read it and grasped its contents and legal effects.” ReadyOne 

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Industries, Inc. v. Casillas, 487 S.W.3d 254, 258 (Tex. App. 2015) [hereinafter ReadyOne 1]. In 

ReadyOne 1, the Texas Court of Appeals held that the party “satisf[ied] its evidentiary burden by 

submitting . . . copies of [the arbitration agreement] and the [signed] Receipt and Arbitration 

Acknowledgement [both of which were authenticated by affidavit] in support of its motion to 

compel.” Id. at 258-59. Just as in ReadyOne 1, ROICOM has produced the Arbitration Agreement 

and a signed Acknowledgement Form, which are authenticated by Alvarez’s affidavits. See (ECF 

No. 8-1). The Court notes that the Acknowledgement Form, which has “ROICOM USA, LLC” 

printed on the top above the title, contains Carrillo’s signature and “ROICOM” listed as Carrillo’s 

work location in the signature block. (ECF 15-1, p. 14). These contents on the Acknowledgement 

Form provide enough evidence for ROICOM to meet their initial burden of establishing an 

agreement between ROICOM and Carrillo,

5

absent any meritorious defenses to formation of the 

agreement.

Assuming, arguendo, that the Acknowledgement Form is a valid contract, the Court finds 

that ROICOM has met its initial burden in establishing that there was an arbitration agreement 

between Carrillo and ROICOM.6 

b. The Arbitration Agreement is Procedurally Unconscionable

Carrillo argues that Defendant’s Motion should be denied because the Arbitration 

Agreement is procedurally unconscionable. (ECF No. 13, p. 4). ROICOM has met its initial 

burden of showing that an agreement to arbitrate exists, and Carrillo has not argued that her claim 

falls outside of its scope. Consequently, the presumption favoring arbitration has attached and the 

5 Even if the Arbitration Agreement is not directly between Carrillo and ROICOM, ROICOM would still be able to 

compel arbitration as a third-party beneficiary. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006)

(“A third-party beneficiary may enforce a contract to which it is not a party if the parties to the contract intended to 

secure a benefit to that third party and entered into the contract directly for the third party’s benefit.”).

6 Since Carrillo does not argue that her claims fall outside the scope of the Arbitration Agreement, the Court finds that 

the scope of the Arbitration Agreement is not at issue in the instant case, and thus will not be addressed. (ECF No. 

15, p. 3 n. 1); see (ECF No. 13).

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burden now shifts to Carrillo to establish her defense of procedural unconscionability. See Carter, 

362 F.3d at 301 (“The burden of proving unconscionability rests on the party seeking to invalidate 

the arbitration agreement.”) (citing In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002)). 

“In determining the contractual validity of an arbitration agreement, courts apply ordinary 

state-law principles that govern the formation of contracts.” Carter, 262 F.3d at 301 (citing First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). As a result, Texas state law is the 

applicable law “to determine whether the arbitration agreement[] here [is] unconscionable.” 

Carter, 362 F.3d at 301. 

“Under Texas law, unconscionability includes two aspects: (1) procedural 

unconscionability, which refers to the circumstances surrounding the adoption of the arbitration 

provision, and (2) substantive unconscionability, which refers to the fairness of the arbitration 

provision itself.” Id. (citing In re Halliburton Co., 80 S.W.3d at 571); see also TMI, Inc. v. Brooks, 

225 S.W.3d 783, 792 (Tex. App. 2007) (procedural unconscionability relates to the making or 

inducement of the contract, focusing on “the facts surrounding the bargaining process”). 

“‘Unconscionability’ has no precise legal definition because it is not a concept but a 

determination made in light of a variety of factors.” Delfingen US-Texas, L.P. v. Valenzuela, 407 

S.W.3d 791, 798 (Tex. App. 2013) (citing Southwestern Bell Telephone Company v. DeLanney, 

809 S.W.2d 493, 498 (Tex. 1991) (Gonzalez, J. concurring)). Courts analyze the following factors 

in determining whether a contract is unconscionable: 

(1) the ‘entire atmosphere’ in which the agreement was made; (2) the alternatives, 

if any, available to the parties at the time the contract was made; (3) the ‘nonbargaining ability’ of one party; (4) whether the contract was illegal or against 

public policy; and (5) whether the contract is oppressive or unreasonable.

Delfingen, 407 S.W.3d at 798. In applying the factors, “[t]he totality of the circumstances must 

be assessed as of the time the contract was formed.” Id. “A court may find procedural 

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16

unconscionability if the plaintiff presents evidence of the [employer’s] ‘overreaching or sharp 

practices’ combined with the [employee’s] ‘ignorance or inexperience.’” America Stone Diamond, 

Inc. v. Lloyds of London, 934 F. Supp. 839, 844 (S.D. Tex. 1996) (quoting Arkwright-Boston Mfrs. 

Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1184 (5th Cir. 1988)). In different 

terms, “the circumstances surrounding the negotiations must be shocking” in order to find an 

agreement procedurally unconscionable. Delfingen, 407 S.W.3d at 798.

1. Acknowledgement Form

A. Carrillo was unable to read the Acknowledgement Form

Carrillo first argues that the Arbitration Agreement was procedurally unconscionable 

because she does not speak or read English and, therefore, could not understand the English version 

of the Acknowledgement Form’s contents.

The Fifth Circuit has noted that “[t]he only cases under Texas law in which an agreement 

was found procedurally unconscionable involve situations in which one of the parties appears to 

have been incapable of understanding the agreement.” Fleetwood Enterprises, 280 F.3d at 1077; 

see BBVA Compass Investment Solutions, Inc. v. Brooks, 456 S.W.3d 711, 724 (Tex. App. 2015) 

(“Situations that are procedurally unconscionable involve those in which one of the parties was 

incapable of understanding the agreement without assistance, and the other party did not provide 

that assistance, such as where one of the parties was functionally illiterate or where one of the 

parties did not speak English.”); see, e.g., In re Turner Bros. Trucking Co., 8 S.W.3d 370, 377 

(Tex. App. 1999) (finding an agreement procedurally unconscionable where one of the parties was 

functionally illiterate, nobody explained the agreement to him, and the person who gave him the 

agreement to sign did not understand the agreement); Prevot, 133 F. Supp. 2d at 940–41 (S.D. Tex. 

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17

2001) (finding procedural unconscionability where the plaintiffs did not speak English and the 

agreement was not translated or explained to them).

In Carrillo’s affidavit attached to Plaintiff’s Response, Carrillo asserts that she “do[es] not 

speak or read English.” (ECF 13-1, p. 2). ROICOM does not dispute that Carrillo could not read 

or speak English. See generally (ECF No. 21, p. 9) (ROICOM’s counsel acknowledged that he 

“was not made aware of Ms. Carrillo’s contention that she did not speak English until [Plaintiff’s 

Response containing Carrillo’s affidavit.]”). Further, Carrillo asserts that because she “cannot read 

English” and the Acknowledgement Form’s contents were written in English, Carrillo “[did] not 

know what the [Acknowledgement Form said].” (ECF 13-1, p. 3). As these claims are well 

supported and undisputed, the Court finds that Carrillo was incapable of understanding the 

contents of the English-language Acknowledgement Form. 

B. ROICOM’s Representative misrepresented the contents of the Acknowledgement 

Form to Carrillo

Carrillo next argues that ROICOM’s Representative misrepresented the contents of the 

Acknowledgement Form when the Representative “affirmatively told Carrillo that the documents 

she was signing were simply ‘to register and be put on payroll.’” (ECF No. 13, p. 5) (citing ECF 

No. 13-1, p 2). Carrillo asserts that she “believed the representative and relied on these statements 

to sign the Acknowledgement Form with the purpose of registering with the company – not to 

waive her right to a jury trial.” (ECF No. 13, p. 5).

For procedural unconscionability, the misrepresentation must rise to the level of an 

affirmative misrepresentation, constituting more than possession of superior bargaining power or 

evidence of an adhesion contract. See, e.g., Carter, 362 F.3d 294, 301 (5th Cir. 2004) (where Fifth 

Circuit held there was “no support in Texas law” for the argument that an arbitration agreement 

was procedurally unconscionable because a company “used its superior bargaining position to 

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18

coerce potential employees; that is, employees feared that they would not get the job unless they 

signed”); Hafer v. Vanderbilt Mortg. & Finance, Inc., 793 F. Supp. 2d 987, 1002 (S.D. Tex. 2011) 

(noting that “the Fifth Circuit has repeatedly rejected the argument that the imbalance of power 

between the parties alone makes an adhesion contract unconscionable”).

Contrary to the evidence before the Court, ROICOM asserts that “. . . [Carrillo] does not 

state that the Defendant’s employee7actually misrepresented any terms contained in the 

documents . . . and that there is no evidence presented in [Carrillo’s affidavit] that states Defendant 

affirmatively misrepresented the contents of the documents presented.” (ECF No. 15, p. 4, 6) (first 

emphasis added) (second emphasis in original). ROICOM goes on to state that “[a]t most, 

[Carrillo’s affidavit] states she needed to sign the documents ‘to be able to register and be put on 

the payroll,’ and ‘to be able to work at [the] company,’ ‘at the beginning of employment.’” (Id. at 

p. 6).

Despite Defendant’s conclusory contentions, it is clear to the Court that Carrillo was 

misled by the ROICOM Representative as to the contents of the English version of the 

Acknowledgement Form. According to the following undisputed facts by Carrillo:

1) the ROICOM Representative knew Carrillo did not speak or read English;

2) the ROICOM Representative informed Carrillo that “ . . . she had to sign [the] 

document to be able to register and be put on payroll with ROICOM . . . [and] 

to be able to work at the company;”

3) the ROICOM Representative made no attempt to inform Carrillo that by signing 

the document she was agreeing to arbitrate and waive her right to jury trial;

4) the ROICOM Representative never gave or offered to give Carrillo a copy of 

the Acknowledgement Form or the Arbitration Agreement, either in English or 

in Spanish, despite the apparent existence of both; and

5) the ROICOM Representative never informed Carrillo that an Arbitration 

Agreement even existed so that Carrillo could have the opportunity to read it 

and ask questions about it.

(ECF No. 13-1, p. 2-3); see (ECF No. 15-1, 4-15).

7 The Court assumes ROICOM is referring to the ROICOM Representative from Human Resources.

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Furthermore, ROICOM contends that there are several cases that the Texas Court of 

Appeals has reviewed with “language similar” to Carrillo’s assertion, “and that the court has held 

that such evidence is insufficient to avoid the obligation to arbitrate.” (ECF 15, p. 4) (citing In re 

ReadyOne Industries, Inc., 400 S.W.3d 164, 169 (Tex. App. 2013) [hereinafter ReadyOne 2];8In 

re ReadyOne Industries, Inc., 420 S.W.3d 179, 186-87 (Tex. App. 2012) [hereinafter ReadyOne 

3]). Again, despite ROICOM’s contentions, the two cases provided by ROICOM do not involve 

similar language to the case here.

9

 

In the first case relied on by ROICOM, ReadyOne 2, the Texas Court of Appeals rejected 

an employee’s assertion that an arbitration agreement was misrepresented when he “just [didn’t]

recall,” he “didn’t know anything about this,” “he didn’t even know what arbitration is,” “he 

doesn’t speak English,” and he was given “lots of documents to sign and that he signed them.” In 

re ReadyOne Industries, Inc., 400 S.W.3d at 169. The Spanish-speaking employee in ReadyOne 

2 was provided the Spanish and English-language versions of the pertinent documents, while 

Carrillo did not receive a Spanish or English-language version of the Arbitration Agreement. 

Compare Id. at 169, with (ECF No. 13-1, p. 3). Further, the employee in ReadyOne 2 also signed 

the “Receipt and Arbitration Acknowledgement” that was in Spanish, while Carrillo signed the 

Acknowledgement Form that was in English. ReadyOne Industries, Inc., 400 S.W.3d at 167, with

(ECF No. 15-1, p. 14). Thus, whereas the employee in ReadyOne 2 had ample opportunity to 

discover the nature of the documents he was signing had he simply read them, here Carrillo had 

8 There are several relevant cases in which ReadyOne is a party. Although these cases are not directly related to each 

other, the Court will refer to the cases using more descriptive names for ease of reading.

9 Further, these two cases do not even address the issue of procedural unconscionability, but rather discuss fraudulent 

inducement in a different procedural context. See In re ReadyOne, 400 S.W.3d at 169 (reversing trial court’s decision 

to order further discovery on plaintiff’s fraudulent inducement defense to the arbitration agreement); In re ReadyOne,

420 S.W.3d at 186-87 (reversing trial court’s decision to order discovery that was based upon employee’s fraudulent 

inducement defense to the arbitration agreement).

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no such opportunity because ROICOM never gave her the opportunity to review the 

Acknowledgement Form in a language she understood. 

In the next case relied on by ROICOM, ReadyOne 3, the Texas Court of Appeals rejected 

an employee’s assertion that an arbitration agreement was fraudulently induced when she “was 

given a few documents to sign during her brief orientation,” “was only given signature pages and 

was not explained what the documents related to,” and that she “assumed the documents related 

to her W-2 tax forms.” In re ReadyOne Industries, Inc., 420 S.W.3d at 186-87. The employee in 

ReadyOne 3 was not a Spanish-speaker and was given the signature pages in a language she could 

read and understand. Id. Further, the employee’s only contention is that her employer “failed to 

identify and explain the arbitration agreement to her,” not that the employer “made a fraudulent

representation that the documents she was asked to sign did not contain an arbitration provision or 

that the arbitration provision was something else.” Id. at 187. In contrast, here, Carrillo was given 

the English version of the Acknowledgement Form, which she was incapable of reading, and was 

told by the ROICOM Representative that the Acknowledgement form was “something else” 

besides an arbitration agreement, namely that it was “to register for payroll.” (ECF No. 13-1, p. 

2-3).

The Court finds that the assertions in ReadyOne 2 and ReadyOne 3 do not constitute

“language similar” to Carrillo’s assertions. The Court further finds ReadyOne 2 and ReadyOne 3

distinguishable for the reason that in both of those cases, the employer made no misrepresentation

regarding the document’s contents. Rather, in each case, the plaintiff employee was simply

unaware or assumed the contents of a document which the plaintiff employee had the opportunity 

and ability to read. In contrast, here, ROICOM’s Representative misrepresented the contents of 

the Acknowledgement Form to Carrillo by telling her it was “to register for payroll” when in fact 

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21

the document referred to a contract which waived her right to a jury trial, and that Carrillo was 

unable to read and understand. Accordingly, the Court finds ReadyOne 2 and ReadyOne 3

distinguishable from the facts at issue here.

Instead, the Court finds that the ROICOM Representative’s statements are much like the 

misrepresentation found in Delfingen US-Texas, L.P. v. Valenzuela. 407 S.W.3d 791, 801, 803

(Tex. App. 2013). In Delfingen, an employer representative told a Spanish-speaking employee 

she would translate “the important parts of the paperwork” and informed the employee that the 

arbitration agreement she was signing “was the company’s policies, such as the attendance policy.” 

Id. The Texas Court of Appeals found that this statement by the employer representative 

constituted an affirmative misrepresentation. Id. at 803. 

Similarly, here, the ROICOM Representative’s statement to Carrillo that the 

Acknowledgement Form was “to register for payroll” and not an arbitration agreement is nearly 

identical to the representative in Delfingen’s misrepresentation that the arbitration agreement was 

“the attendance policy” and not a waiver of the employee’s right to a jury trial. Compare (ECF 

No. 15, p. 6), with Delfingen, 407 S.W.3d at 803. Accordingly, the Court finds that the ROICOM

Representative affirmatively misrepresented the contents of the Acknowledgement Form to 

Carrillo. 

C. ROICOM failed to provide the actual Arbitration Agreement to Carrillo

Carrillo asserts that she was “not provided with” and has “never seen” the actual

Arbitration Agreement “in English or in Spanish.” (ECF No. 13-1, p. 3). Although an English 

and Spanish copy of the Arbitration Agreement was produced in Defendant’s Motion, ROICOM 

does not assert that either document was ever provided or shown to Carrillo. (ECF No. 8-1, p. 3-

12); see (ECF No. 15). Rather, Carrillo has only seen an English version of the Acknowledgement 

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Form. (ECF No. 13-1, p. 3). Accordingly, the Court finds that the evidence establishes that

Carrillo was never provided or shown an English or Spanish-language copy of the actual 

Arbitration Agreement.

D. The totality of the circumstances in which ROICOM presented the 

Acknowledgement Form to Carrillo demonstrate procedural unconscionability

The Court notes that, when taken alone, neither the ROICOM Representative’s affirmative 

misrepresentation to Carrillo nor Carrillo’s inability to read the English-language

Acknowledgement Form can form the basis for finding procedural unconscionability and denying 

the motion to compel arbitration. See Ridge Natural Resources, 564 S.W.3d at 133 (holding that

“the employer’s affirmative misrepresentation to the employee” when taken alone cannot form the 

basis for finding procedural unconscionability, but the “fact that the employee was illiterate in 

English and did not receive a Spanish language copy to verify [] the terms of the agreement . . .

amplified the employer’s misrepresentation into something procedurally unconscionable by taking 

advantage of the employee’s illiteracy”); ReadyOne Industries, Inc. v. Flores, 460 S.W.3d 656, 

667-68 (Tex. App. 2014) [hereinafter ReadyOne 4] (the court rejected the procedural 

unconscionability defense where the employee was “unable to read English” but there was “no 

evidence in the record . . . that ReadyOne affirmatively misrepresented the contents of the 

documents” or that the employee “was prevented by trick or artifice from reading the [provided 

English or Spanish-language copy of the arbitration agreement]”); see generally Maravilla, 783 F. 

App’x at 395 (Fifth Circuit noting that “[u]nder Texas law, a contract signatory’s inability to 

understand English is not a defense to contract formation.”) (quoting Doskocil Mfg. Co. v. Nguyen, 

No. 02-16-00382, 2017 WL 2806322, at *5 (Tex. App. June 29, 2017)); Lucchese Boot Co. v. 

Licon, 473 S.W.3d 390, 403 (Tex. App. 2015) (it is presumed that a party who “has the opportunity 

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23

to read an arbitration agreement and signs it, knows its contents.”) (quoting EZ Pawn Corp. v. 

Mancias, 934 S.W.2d 87, 90 (Tex. 1996)).

Instead, the Court must assess “[t]he totality of the circumstances . . . [at] the time the 

contract was formed” to determine if “the circumstances surrounding the negotiations [were] 

shocking.” Delfingen, 407 S.W.3d at 798. Here, there is evidence of both Carrillo’s illiteracy in 

English and an affirmative misrepresentation in addition to the unrefuted fact that Carrillo never 

received the Arbitration Agreement in either Spanish or English. See (ECF No. 13-1, p. 2-3).

Carrillo argues that the totality of the circumstances, which include the Representative’s 

misrepresentation of the contents of the Acknowledgement Form, Carrillo’s reliance on the 

misrepresentation when signing the Acknowledgement Form, and ROICOM’s failure to provide 

Carrillo with an English or Spanish version of the Arbitration Agreement, supports finding that 

the Arbitration Agreement is procedurally unconscionable. (ECF No. 13, p. 5). In Plaintiff’s 

Response, Carrillo relies on Delfingen as being instructive because, similar to the facts here, the 

arbitration agreement in that case “. . . was signed based on an affirmative misrepresentation.” (Id. 

at 4) (citing Delfingen, 407 S.W.3d 791).

In Defendant’s Reply, ROICOM argues that the facts in Delfingen are distinguishable, 

because “there is no evidence . . . [the ROICOM Representative] affirmatively misrepresented the 

contents of the documents presented”10 and the ROICOM Representative “furnished [Carrillo] 

with a Spanish-language versions [sic] of [the Acknowledgement Form], which was located on the 

reverse side of the same document [Carrillo] signed.”11 (ECF No. 15, p. 5-6) (emphasis in 

original).

10 The Court finds that the ROICOM Representative did affirmatively misrepresent the contents of the 

Acknowledgement Form for the reasons outlined supra in Section III(b)(1)(B).

11 The Court finds that Carrillo was prevented from reading and understanding the Spanish version of the 

Acknowledgement for the reasons outlined infra in Section III(b)(2).

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In Delfingen, the Spanish-speaking employee was “illiterate as to the English language.” 

407 S.W.3d at 800. Further, the employee signed an English version of the arbitration agreement, 

which she was given a couple days before signing but “did not ask either her daughter or son to 

translate them for her even though she knew they were important.” Id. at 800-01. The employer 

never provided a Spanish translation of the arbitration agreement, and instead a representative of 

the employer said she would translate “the important parts of the paperwork,” and told the 

employee that the arbitration agreement “was the company’s policies, such as the attendance 

policy.” Id. at 801, 803. Based upon the employee’s illiteracy as to English and the employer’s 

affirmative misrepresentation, the Texas Court of Appeals found the arbitration agreement to be 

procedurally unconscionable. Id. at 803. 

Similar to Delfingen, in Prevot, the district court held that the English-language arbitration 

agreements signed by the non-English-speaking employees were procedurally unconscionable 

because the employees “were not given a translation of the agreements” and “were pressured into 

signing them.” 133 F. Supp. 2d at 940. The arbitration agreements were written in English, the 

plaintiffs could not read English when they signed the arbitration agreement, and the documents 

were not translated to them; as such, the plaintiffs did not know the nature of the agreement that 

they were signing, and their superiors told them “not to worry about it and to quickly sign the 

documents so they could get back to work.” Id.

12

 

The facts underlying Prevot and Delfingen closely parallel the instant case. Similar to the 

facts underlying the instant case, in Prevot and Delfingen: (1) the employees were illiterate in

English; (2) they were given documents to sign in English; (3) they were never given a Spanish 

translation of the arbitration agreement; (4) the employer’s representatives misrepresented the 

12 In reaching its conclusion, the district court relied upon the plaintiff’s testimony through sworn affidavits, which 

were not disputed by the defendant. 133 F. Supp. at 940, n. 2 

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importance or contents of the English documents to the employees; and (5) the representatives 

knew the employees did not understand English. Prevot, 133 F. Supp. 2d at 940 (where the 

employee’s superiors told them “not to worry about [the arbitration agreement] and to quickly sign 

the documents so they could get back to work”); Delfingen, 407 S.W.3d at 800-01, 803 (where the 

employer’s representative told the employee that the arbitration agreement “was the company’s 

policies, such as the attendance policy”). 

Further, while the employees in Prevot and Delfingen signed a copy of an English version

of their arbitration agreements, Carrillo never saw or received a copy of the Arbitration Agreement 

in either English or Spanish. Compare Prevot, 133 F. Supp. 2d at 940, and Delfingen, 407 S.W.3d 

at 796, with (ECF No. 13-1, 3). Instead, Carrillo only signed an English version of the 

Acknowledgement Form. See (ECF No. 15-1, p. 14). In fact, there is greater evidence of 

procedural unconscionability here than in Delfingen, because the employee in Delfingen was given 

the English copy of the arbitration agreement to take home a few days before signing the arbitration 

agreement and thus, had the opportunity to have the English copy of the arbitration agreement 

translated to her by her children. Delfingen, 407 S.W.3d at 800-01. By contrast, Carrillo was not 

presented with a copy of the English version of the Acknowledgement Form until the time of 

signing, nor was she ever given a copy of the actual arbitration agreement. Thus, unlike the 

employee in Delfingen, Carrillo did not have the opportunity for a third party to translate either 

the Acknowledgement Form or the Arbitration Agreement for her. (ECF No. 13-1, p. 2-3).

In sum, Carrillo’s inability to read the English-language Acknowledgement Form, the

ROICOM Representative’s misrepresentation as to the Acknowledgement Form’s contents, and 

ROICOM’s failure to provide Carrillo with a copy of the Arbitration Agreement in Spanish or 

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English, all support the conclusion that the Arbitration Agreement was procedurally 

unconscionable.

In Defendant’s Reply, ROICOM argues that ReadyOne Industries, Inc. v. Lopez

[hereinafter ReadyOne 5] supportsits argument that the Arbitration Agreement should be enforced. 

(ECF No. 15, p. 5) (citing ReadyOne Industries, Inc. v. Lopez, 551 S.W.3d 305, 316 (Tex. App. 

2018)). The Court finds ReadyOne 5 to be distinguishable from the facts here. In ReadyOne 5, a 

Spanish-speaking employee was informed by someone from Human Resources that documents

she signed, which were written in English and included an arbitration agreement, were for “benefits 

if [the employee] get[s] hurt on the job.” Id. at 315. These documents were not translated into 

Spanish for the employee, but “[t]he evidence established that [the employee] was provided with 

both English and Spanish-language versions of the documents at issue,” including the arbitration 

agreement. Id. (emphasis added). Further, the employee in ReadyOne 5 was not completely 

illiterate as to English but instead had “a below second grade reading level . . . .” Id. In contrast

to the facts in ReadyOne 5, here, Carrillo was never provided the Arbitration agreement in English 

or Spanish and Carrillo was illiterate in English. See (ECF No. 13-1, p. 2-3). Accordingly, the 

Court finds that ReadyOne 5 is distinguishable on these facts.

Therefore, based on the totality of the circumstances, which include Carrillo’s inability to 

read the English-language Acknowledgement Form, the ROICOM Representative’s 

misrepresentation as to the Acknowledgement Form’s contents, and ROICOM’s failure to provide 

Carrillo with a copy of the Arbitration Agreement in Spanish or English, the Court finds that there 

is sufficient evidence that Carrillo has met her burden of proving that the Arbitration Agreement 

was procedurally unconscionable.

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2. Acknowledgement Form with Attached Spanish Version

ROICOM asserts for the first time in Defendant’s Reply that ROICOM “furnished 

[Carrillo] with a Spanish-language versions [sic] of [the Acknowledgement Form], which was 

located on the reverse side of the same document she signed.” (ECF No. 15, p. 5); see also (ECF 

No. 15-1, p. 3) (“[The Acknowledgement Form] is a two – sided [sic] document in English on one 

side and Spanish on the other. Ms. Carrillo signed the English side . . . . However, the document 

signed by Ms. Carrillo contained both an English side and a Spanish side.”).13 

13 Carrillo asserts in Plaintiff’s Surreply that the evidence of the Spanish version of the Acknowledgement Form should 

be stricken, since it was improperly raised for the first time in Defendant’s Reply. (ECF No. 19, p. 2). In the 

alternative, Carrillo asks that the Court find that the evidence of the Spanish version of the Acknowledgement Form 

is not credible or reliable to support a finding that Carrillo was presented with the Acknowledgement Form in Spanish. 

(Id. at p. 4). 

Carrillo asserts in Plaintiff’s Surreply that ROICOM’s counsel sent the same English Acknowledgement Form found 

in Defendant’s Motion filed on July 27, 2020, to Carrillo’s counsel by email on July 14, 2020. (Id. at p. 6) (Carrillo’s 

counsel also contends that ROICOM’s counsel provided in the same email a one-sided English acknowledgement 

form of ROICOM in an unrelated case). Carrillo alleges that ROICOM “miraculously found an Acknowledgement

Form that was two-sided” “only after Carrillo addressed the impropriety of [ROICOM’s] use of an English 

Acknowledgement Form and misleading statements about the same.” (Id.). ROICOM counters Carrillo’s allegations 

by asserting it “is not clairvoyant” and that “[i]t was impossible for [ROICOM] to anticipate and respond to [Carrillo’s 

affirmative defense of procedural unconscionability] in [Defendant’s Motion] and include all the evidence possible in 

rebuttal to a defense not yet raised.” (ECF No. 21, p. 4-5). ROICOM asserts that it was only after Plaintiff’s Response 

that ROICOM’s counsel “learned the Spanish — language [sic] version of the Acknowledgement Form was located 

on the reverse side of the English — language [sic] version that [Carrillo] had signed.” (Id. at p. 4). ROICOM’s 

counsel did not previously produce the Spanish-language version in his prior emails or Defendant’s Motion because 

the Acknowledgement Form was “copied and electronically transmitted to [ROICOM’s counsel] as one page [sic] 

documents, then stored electronically in PDF format as such.” (ECF No. 21, p. 8). Further, ROICOM’s counsel 

asserts that he “was not made aware of Ms. Carrillo’s contention that she did not speak English until [Plaintiff’s 

Response containing Carrillo’s affidavit],” and “[i]t was only thereafter that [ROICOM’s counsel] came to learn that 

the original Acknowledgement [Form] was a two-sided document.” (Id. at p. 2). 

The Court notes that ROICOM provides no explanation as to how it learned of the Spanish-language

Acknowledgement Form’s existence after the Plaintiff’s Response. See (Id. at p. 2). Further, ROICOM provides no 

explanation as to why Alvarez, the “custodian of records for personnel files of ROICOM . . . and for documents 

pertaining to Blanca Carrillo,” made no reference in his original affidavit to a Spanish-language Acknowledgement 

Form or that the Acknowledgement Form was two-sided. See (ECF No. 21); (ECF No. 8-1, p. 1-2, 13) (“Exhibit ‘2’ 

is a true and correct copy of a Receipt and Arbitration Acknowledgement dated May 20, 2019, with what appears to 

be the signature of Blanca Carrillo.”); cf. (ECF No. 15-1, p. 3) (Alvarez asserting in his supplemental affidavit that 

the Spanish side was not produced in his previous affidavit because “[t]here was a copying error and the Spanish side 

was inadvertently not included.”). Although Alvarez explains how the Spanish-language Acknowledgement Form 

was not physically included inadvertently due to a “copying error,” Alvarez does not explain why his description of 

the Acknowledgement Form did not mention a Spanish-language version. Further, ROICOM’s counsel does not 

explain why the Spanish-language Arbitration Agreement was included in Alvarez’s initial affidavit when ROICOM’s 

counsel was purportedly unaware that Carrillo “did not speak English” until Plaintiff’s Response. See (ECF No. 21). 

Finally, there is no indication on the face of the English side or Spanish side of the Acknowledgement Form, either 

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“[T]he failure to read a contract does not ordinarily void a contract absent fraud or 

misrepresentations.” In re Green Tree Servicing LLC, 275 S.W.3d 592, 603 (Tex. App. 2008); see 

also Fleetwood, 280 F.3d at 1077 (court found that “allegations of misrepresentations and pressure 

to sign the documents quickly . . . [were] insufficient to establish [procedural] unconscionability” 

when the parties were fully capable of understanding the agreement). Under Texas state law, 

“absent proof of mental incapacity,14 a person who signs a contract is presumed to have read and 

understood the contract unless he was prevented from doing so by trick or artifice.” Delfingen, 

407 S.W.3d at 801 (emphasis added). A “trick or artifice” is conduct by a party that prevents or 

blocks another party from reading the contract, with “[t]he key inquiry [being] whether [the signing 

party] was afforded the opportunity to read (or have read to him) the document he was signing, 

not whether [the drafting party’s] alleged statements about the document’s contents were 

accurate.” Westergren v. National Property Holdings, L.P., 409 S.W.3d 110, 151 (Tex. App. 

2013) (Frost, J., dissenting), aff’d in part, rev’d in part, 453 S.W.3d 419, 425 (Tex. 2015) 

(reversing on issue of “trickery or artifice,” citing J. Frost’s dissent).

It is clear that a misrepresentation alone does not equate to a “trick or artifice” that prevents 

a party from reading or understanding a contract. See, e.g., Harvey v. Elder, 191 S.W.2d 686, 689 

(Tex. Civ. App. 1945) (holding that a doctor’s oral representation that a document was a receipt 

and his failure to disclose that it contained releases of the patient’s claims did not constitute a “trick 

or artifice” that prevented the patient from reading the release before signing it); see also Indemnity 

Ins. Co. of North America v. W.L. Macatee & Sons, 101 S.W.2d 553, 556-57 (1937) (the court 

by signature, date, writing, or other markings, that Carrillo received the Spanish-language Acknowledgement Form 

produced by ROICOM. See (ECF No. 15-1, p. 14-15). However, the Court finds it is unnecessary to decide the issue 

of whether the Acknowledgement Form Carrillo signed had a Spanish reverse side, since the Court considers both 

factual alternatives and reaches the same conclusion on the issue of procedural unconscionability.

14 Neither party here suggests Carrillo lacked mental capacity. See (ECF No. 15, p. 5) (“Plaintiff does not claim she 

was mentally incapacitated when she signed the Acknowledgement [Form].”); (ECF No. 13).

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found no evidence that the representative “did anything to mislead [the laborers] who signed,” and 

the representative “turn[ing] back . . . sheets for [the laborers’] convenience” did not constitute a 

“trick or artifice [used] to induce them to sign without reading” when the laborers “could plainly 

see that . . . sheets had been folded back and could have examined such . . . sheets by turning them 

down or asking [the representative] to do so . . . [in fact, one of the laborers] sometimes turned 

them back himself”). As such, the Court finds that the misrepresentation of the Acknowledgement 

Form’s contents by ROICOM’s Representative alone is not enough to establish a “trick or artifice.”

Even so, the Court now considers the alternative factual scenario raised in Defendant’s 

Reply: namely, that Carrillo was handed a two-sided Acknowledgement Form by ROICOM’s 

Representative, the back side of which was in Spanish. For the reasons set forth below, the Court 

finds that the combination of (1) the Representative’s conduct, (2) the format in which the

Acknowledgement Form was drafted, and (3) ROICOM’s failure to provide Carrillo with a copy 

of the Arbitration Agreement, constitutes a “trick or artifice” that prevented Carrillo from reading 

or having the opportunity to read the Spanish-language Acknowledgement Form.

A. The ROICOM Representative’s conduct and misrepresentation prevented 

Carrillo from reading the Spanish-language Acknowledgement Form 

ROICOM argues in Defendant’s Reply that “there is no evidence [Carrillo] was prevented 

by trick or artifice from reading [the Spanish version on the back of the Acknowledgement Form]

and that “[t]here is no evidence that a coercive environment existed.” (ECF No. 15, p. 6). 

ROICOM argues that Carrillo’s affidavit is insufficient to establish procedural unconscionability 

since Carrillo “was provided with an English and Spanish version of the Acknowledgement that 

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she signed”15 and that, “therefore Plaintiff is presumed to have read and understood the documents 

given to her.” (ECF No. 15, p. 6).

Despite ROICOM’s conclusory contentions, it is clear to the Court that not only did the 

ROICOM Representative never inform Carrillo that a Spanish version of the Acknowledgement

Form existed on the backside of the English version, the ROICOM Representative affirmatively 

misled Carrillo as to the nature and the contents of the Acknowledgement Form. Although a 

misrepresentation alone does not equate to a “trick or artifice” that prevents a party from reading 

a contract, it is undisputed that Carrillo did not see, read, or was even made aware of the Spanish 

backside of the Acknowledgement Form. See (ECF No. 13-1); (ECF No. 15). 

The ROICOM Representative’s statements and conduct prevented Carrillo from reviewing 

the Spanish-language Acknowledgement Form. The Representative knew Carrillo only spoke and 

understood Spanish and knew that the Acknowledgement Form was a two-sided document with a 

Spanish side, but the Representative chose to only present and obtain Carrillo’s signature on the 

English side. See (ECF No. 15-1, p. 14-15). 

Further, knowing Carrillo could not read or understand the English side of the

Acknowledgement Form, the ROICOM Representative told Carrillo in Spanish that Carrillo had 

to sign the document “to be able to register and be put on payroll with ROICOM.” (ECF No. 13-

1, p. 2). ROICOM does not provide any evidence that the Representative alerted Carrillo to the 

existence of a Spanish-language backside or that the Representative gave Carrillo an opportunity 

to review it. See generally (ECF No. 15-1, 2-3). In fact, Carrillo never contends that she chose 

not to read the Spanish-language Acknowledgement Form at the time of signing; rather, she argues 

that she was never given the Spanish-language Acknowledgement Form in the first place, nor 

15 Contrary to ROICOM’s statement here, Carrillo only signed the English version of the Acknowledgement Form. 

See (ECF No. 15-1, p. 14).

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informed of its existence. (ECF No. 13-1, p. 2-3); see Forshey v. Del, No. 01-19-00421-CV, 2020 

WL 1856214, at *4 (Tex. App. Apr. 14, 2020) (“[I]n contrast, [the employee] does not argue that 

she was not aware of the arbitration provision because it was on another page. Rather, she argues 

that she was never given the page containing the arbitration provision in the first place.”) 

(emphasis added). 

Finally, the Court notes that the Acknowledgement Form produced by ROICOM in 

Defendant’s Reply was kept as a record “in the course of ReadyOne’s regularly conducted business 

activity,” and ROICOM provides no evidence that Carrillo was given a copy of the signed 

Acknowledgement Form to keep for her records. See (id.). Thus, the meeting with the ROICOM 

Representative was apparently Carrillo’s only opportunity to review the Acknowledgement Form.

Based on the facts outlined above, the Court finds that the ROICOM Representative’s 

conduct and misrepresentation prevented Carrillo from reading the Spanish backside of the 

Acknowledgement Form.

B. The format of the Acknowledgement Form prevented Carrillo from reading the 

Spanish version of the Acknowledgement Form and gave credibility to the 

ROICOM Representative’s misrepresentation

Next, the Court finds that the format of the Acknowledgement Form: (1) prevented Carrillo 

from reading or having the opportunity to read the Spanish version of the Acknowledgement Form;

and (2) gave credibility to the ROICOM Representative’s misrepresentation. 

First, the Court notes that the presence of the Spanish-language version on the back side of 

the Acknowledgement Form is not, by itself, enough to prevent an employee from reading and 

understanding it. Texas state courts have found that contract language on the back side of a page 

alone is not inherently “hidden” as to constitute a “trick or artifice.” See, e.g., Cantella & Co., Inc. 

v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (“The agreement is a single page with text on both 

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sides. Nothing is ‘hidden’ on the back side of the document.”); AutoNation USA Corp. v. Leroy, 

105 S.W.3d 190, 199 (Tex. App. 2003) (court did not find the “contract’s arbitration provision so 

inconspicuous that it is unconscionable” where language on the front page encouraged the signer

to review the reverse side). 

In previous cases where the failure to read an agreement did not excuse a party from 

arbitration, courts have noted that the pertinent documents contained some clear reference to other 

pages or paragraphs of the contract. In Innova Hosp. San Antonio, L.P. v. Blue Cross and Blue 

Shield of Georgia, Inc., the District Court for the Northern District of Texas rejected plaintiff’s 

lack of mutual assent defense to an arbitration agreement where the signature block stated “I 

acknowledge by my signature that I have read and understand the front and back of this application 

to agree to binding arbitration as described on the back of this page.” 995 F. Supp. 2d 587, 610 

(N.D. Tex. 2014) (emphasis added) (emphasis in original omitted); see also D.R. Horton-Texas, 

Ltd. v. Drogeseth, No. 02-12-00435-CV, 2013 WL 3377121, at *2 (Tex. App. July 3, 2013) (court 

rejected argument that party was prevented from reading an arbitration agreement on the reverse 

side of a contract when the front page contained “paragraphs 1 through 11 and include[d] signature 

lines for both [parties]. Just above the executed signature lines, the contract state[d], 

‘PARAGRAPHS 12 THROUGH 26 ON THE REVERSE SIDE CONSTITUTE A PART OF 

THIS CONTRACT.’”) (emphasis in original); AutoNation USA Corp., 105 S.W.3d at 199 (court 

did not find the “contract’s arbitration provision so inconspicuous that it is unconscionable” when

purchase agreement consisted of single page, front and back, and the paragraph directly above 

customer signature line on the front page stated that the signer “has read and understands the 

Terms and Conditions . . . (including the Additional Terms and Conditions set forth on the reverse 

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. . . ),” and additional language on front page stated “Purchaser is encouraged to review . . . the 

Additional Terms and Conditions set forth on the reverse side hereof”) (emphasis in original). 

Unlike Innova Hosp., the Court finds that the Acknowledgement Form here does not 

contain any clear reference that a Spanish version of the Acknowledgement Form, or that any text, 

was located on the backside of the Acknowledgement Form. (ECF No. 15-1, p. 14-15). There is 

no language on the Acknowledgement Form indicating that the signer should review the “front 

and back” or the language “on the reverse side” of the Acknowledgement Form. Compare (id.), 

with Innova Hosp., 995 F. Supp. 2d at 610, and D.R. Horton Texas, 2013 WL 3377121, at *2. 

Further, even if there had been some clear language on the English side of the Acknowledgement

Form indicating there was text on the other side, Carrillo “cannot read English and [would] not 

know” what the language on the English side of the Acknowledgement Form would have stated. 

(ECF 13-1, p. 3).

Absent a clear reference to other pages or paragraphs, courts have held that “the failure to 

read a contract does not [] void a contract” when the format of the contract “put[s] a reasonable 

person on notice that there were additional terms on the back of the signature page.” In re Green 

Tree, 275 S.W.3d at 603. In In re Green Tree, the Texas Court of Appeals rejected the purchaser’s 

procedural unconscionability defense where the signer was not “incapable of reading or lack[ing] 

the ability to understand the agreement[, e]ach page of the contract was numbered[,] and the 

signature page was marked ‘Page 3 of 4.’” Id. (emphasis added). The contents of a contract must 

place the signing party, “at the very least, on notice to inquire about any supposedly missing pages 

or paragraphs of which the signer might not be aware.” Forshey, 2020 WL 1856214, at *5.

Unlike In re Green Tree, here, there is nothing on the face of the English side of the 

Acknowledgement Form that would have given Carrillo notice that a Spanish-language

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Acknowledgement Form, or that any text, was on the backside. See (ECF No. 15-1, 14-15). There 

is no indication of “Page 1 of 2” or an arrow directing the reader to turn the page over. Compare 

(id.), with In re Green Tree, 275 S.W.3d at 603. Therefore, the Acknowledgement Form does not 

alert a normal reader that it is a two-sided document.16 Further, even if there had been some 

indication on the face of the English-language Acknowledgement Form that there was text on the 

back of the document, Carrillo had no reason to suspect the backside would be in Spanish and that 

she would be able to read and understand it. ROICOM has not produced any evidence to suggest 

Carrillo was provided any notice of the existence of the Spanish version besides a general 

statement in Defendant’s Reply that the Spanish version simply existed. See (ECF No. 15, p. 6).

Further, unlike the party in In re Green Tree, Carrillo was incapable of reading the English 

version of the Acknowledgement Form and relied upon the ROICOM Representative’s

misrepresentation that the contents of the document pertained to registering for payroll and not to

an arbitration agreement. Compare In re Green Tree, 275 S.W.3d at 603 (“There is no evidence 

[defendant] misrepresented the existence of the arbitration clause or otherwise engaged in 

deception. Nor is there any evidence [plaintiff] is incapable of reading or lacked the ability to 

understand the agreement.”), with (ECF No. 13-1, p. 3); see also Innova Hosp., 995 F. Supp. 2d at 

612-13 (there was no evidence that plaintiff was unable to read the agreement, and plaintiff’s 

arguments of negligent misrepresentation pertained to the extent of the scope of the agreement); 

Ridge Natural Resources, L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 133 (Tex. App. 

2018) (“there is no evidence [the defendant] prevented the [plaintiffs] from reading the contract 

16 In fact, ROICOM’s own counsel filed Defendant’s Motion without “know[ing] the original forms were two-sided 

documents,” even though ROICOM’s counsel had a distinct advantage over Carrillo insofar as he could read the 

English contents of the Acknowledgement Form while Carrillo could not. (ECF No. 21, p. 9) (“It was only thereafter 

[reading Carrillo’s affidavit] that I came to learn that the original Acknowledgement [Form] was a two-sided 

document.”).

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by trick or artifice”); D.R. Horton Texas, 2013 WL 3377121, at *4 (court held that defendant not 

pointing out the arbitration clause on the back of the contract was not equal to a misrepresentation). 

The Court finds that the ROICOM Representative’s misrepresentation further quelled any “notice 

to inquire” from Carrillo regarding any “missing pages or paragraphs” of which she was unaware. 

See Forshey, 2020 WL 1856214, at *5. 

The Court next finds that the Acknowledgement Form was drafted in a manner that gave 

credibility to the ROICOM Representative’s misrepresentation that the document was to “register 

for payroll,” which strengthened Carrillo’s reliance on the misrepresentation. The 

Acknowledgement Form was a single sheet of paper with roughly half of a page of substance while 

the other half of the page contained the signature block. (ECF 15-1, p. 3, 14). In contrast, 

arbitration agreements are typically longer than half of a page. Compare (id. at p. 14), with (id. at 

p. 4-8) (showing the Arbitration Agreement being five pages, at least 3 pages if printed front and 

back, with four of the pages completely full of substantive text). 

Additionally, there are no significant variations in the font of the text in the 

Acknowledgement Form to alert an employee that the document is of greater importance than 

routine registering for payroll. (Id. at p. 14). Excluding the titles and headings, the substantive 

body of the Acknowledgement Form has no text that is in all capital letters or underlined, and only 

part of one sentence is bolded. (Id.). Further, the signature block, which covers roughly half of 

the page, contains Carrillo’s signature, the date of her signature (11-15-2017), her name, her Social 

Security Number, her work location (ROICOM), the Department (RC), the signature of a witness 

from Human Resources, and the date of the witness’s signature (11-15-2017). (Id.). Requiring an 

employee to provide their name, signature, Social Security number, work location, and department 

is more indicative of a document necessary for payroll than a document agreeing to arbitration and 

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waiving an employee’s right to jury trial. (Id.). Therefore, the Court finds that the contents of the 

signature block, in combination with the brevity of the document and the lack of any variation in 

the font to draw attention to the importance of the language in the body of the Acknowledgement 

Form, all support the conclusion that the Acknowledgement Form was drafted in a manner 

consistent with the ROICOM Representative’s statement that the document was related only to 

payroll. See (ECF 13-1, p. 2). 

C. ROICOM’s failure to provide Carrillo with the actual Arbitration Agreement 

denied her the opportunity to verify its contents

Finally, ROICOM did not provide the actual Arbitration Agreement to Carrillo despite the 

fact that ROICOM had both an English and Spanish version of the Arbitration Agreement 

available. (ECF No. 15-1, p 3-13). ROICOM chose not to provide Carrillo with a copy of the 

actual Arbitration Agreement in either language. (ECF No. 13-1, p. 3). Instead, ROICOM elected 

to have Carrillo sign an English version of the Acknowledgement Form and not the Arbitration 

Agreement itself. Compare (ECF No. 15-1, p. 14), with (id. at p. 4-13). Not only was Carrillo not 

informed that an Arbitration Agreement existed, the Court finds that Carrillo had no reason to 

inquire into the contents of the Arbitration Agreement that was never presented to her. By not 

providing a copy of the actual Arbitration Agreement, ROICOM denied Carrillo the opportunity 

to verify whether the terms of the Arbitration Agreement were consistent or inconsistent with the 

Representative’s statement regarding the contents of the Acknowledgement Form. See Ridge 

Natural, 564 S.W.3d at 133 (holding that not providing a Spanish-language copy to an employee 

who is illiterate in English “amplif[ies] the employer’s misrepresentation into something 

procedurally unconscionable by taking advantage of the employee’s illiteracy”).

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D. The combined effect of ROICOM’s actions prevented Carrillo from reading the 

Spanish version of the Acknowledgement Form

In sum, the combined effect of the ROICOM Representative’s conduct and 

misrepresentation of the contents of the Acknowledgement Form, the format of the 

Acknowledgement Form that substantiated the misrepresentation, and ROICOM’s failure to 

provide a copy of the Arbitration Agreement, rises to the level of a “trick or artifice” that prevented 

Carrillo from reading or understanding the Spanish-language version of the Acknowledgement 

Form. See Delfingen, 407 S.W.3d at 801 (“a person who signs a contract is presumed to have read 

and understood the contract unless he was prevented from doing so by trick or artifice”). 

Further, the circumstances here suggest that “overreaching [and] sharp” practices were

used by ROICOM to obtain a signature from an employee with a total lack of knowledge, or 

“ignorance,” of the language used in their Acknowledgement Form, which ROICOM could later 

use to attempt to compel arbitration from that employee. See American Stone Diamond, 934 F. 

Supp. at 844 (“A court may find procedural unconscionability if the plaintiff presents evidence of 

the [company’s] overreaching or sharp practices’ combined with the [employee’s] ignorance or 

inexperience.”) (internal quotes omitted). Based on the totality of the uncontroverted evidence

surrounding the signing of the Acknowledgement Form, the Court finds the circumstances 

shocking such that the Acknowledgement Form and Arbitration Agreement were procedurally 

unconscionable, even if the Acknowledgement Form contained a Spanish-language version on the 

back.

3. Summary

The totality of the circumstances, including Carrillo’s inability as a Spanish-speaker to read 

and understand English, Carrillo never receiving a Spanish or English copy of the Arbitration 

Agreement, and the Representative presenting the Acknowledgement Form to Carrillo only in 

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38

English while misrepresenting it as a document to register for payroll, support the finding that the 

Acknowledgement Form is procedurally unconscionable. Assuming, arguendo, that the 

Acknowledgement Form had a Spanish-language version on the backside, the Court finds that 

Carrillo was still prevented from reading or noticing the Spanish-language version due to the “trick 

or artifice” of ROICOM and the ROICOM Representative. Accordingly, the Court further finds 

that the Arbitration Agreement between ROICOM and Carrillo is procedurally unconscionable.

IV. CONCLUSION

For the foregoing reasons, although the Court finds that ROICOM met its initial burden of 

proof that the Arbitration Agreement on its face establishes an agreement between ROICOM and 

Carrillo, the Court finds that the Acknowledgement Form and, by extension, the Arbitration 

Agreement, are procedurally unconscionable. Because the Arbitration Agreement between 

Carrillo and ROICOM is procedurally unconscionable, the Court finds that ROICOM’s Motion to 

Compel Arbitration should be denied.

Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Compel 

Arbitration and to Stay Proceedings Pending Arbitration is DENIED.

SIGNED and ENTERED this 14th day of September, 2020.

ANNE T. BERTON

UNITED STATES MAGISTRATE JUDGE

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