PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1158

BERKELEY COUNTY SCHOOL DISTRICT,

Plaintiff – Appellee,

v.

HUB INTERNATIONAL LIMITED; HUB INTERNATIONAL MIDWEST 

LIMITED,

 Defendants – Appellants,

and

KNAUFF INSURANCE AGENCY, INC.; STANLEY J. POKORNEY; SCOTT 

POKORNEY; BRANTLEY THOMAS,

 Defendants.

No. 19-1170

BERKELEY COUNTY SCHOOL DISTRICT,

 Plaintiff – Appellee,

v.

SCOTT POKORNEY,

 Defendant – Appellant,

and
2

HUB INTERNATIONAL LIMITED; HUB INTERNATIONAL MIDWEST 

LIMITED; KNAUFF INSURANCE AGENCY, INC.; STANLEY J. 

POKORNEY; BRANTLEY THOMAS,

Defendants.

No. 19-1171

BERKELEY COUNTY SCHOOL DISTRICT,

Plaintiff – Appellee,

v.

STANLEY J. POKORNEY,

 Defendant – Appellant,

and

HUB INTERNATIONAL LIMITED; HUB INTERNATIONAL MIDWEST 

LIMITED; KNAUFF INSURANCE AGENCY, INC.; SCOTT POKORNEY; 

BRANTLEY THOMAS,

 Defendants.

Appeals from the United States District Court for the District of South Carolina, at

Charleston. David C. Norton, District Judge. (2:18-cv-00151-DCN-MGB)

Argued: October 29, 2019 Decided: December 4, 2019

Before KING, FLOYD, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which 

Judge Floyd and Judge Rushing joined.
3

ARGUED: Michael Gregory Pattillo, Jr., MOLOLAMKEN LLP, Washington, D.C., for 

Appellants. Joshua S. Whitley, SMYTH WHITLEY, LLC, Charleston, South Carolina,

for Appellee. ON BRIEF: William J. Cooper, Washington, D.C., Thomas J. Wiegand, 

Chicago, Illinois, W. Alex Harris, MOLOLAMKEN LLP, New York, New York; Christy 

Ford Allen, John A. Massalon, WILLS MASSALON & ALLEN LLC, Charleston, South 

Carolina, for Appellants Hub International Limited and Hub International Midwest 

Limited. Robert H. Jordan, Amanda C. Williams, PARKER, POE, ADAMS & 

BERNSTEIN, LLP, Charleston, South Carolina, for Appellant Scott Pokorney. Deborah 

B. Barbier, DEBORAH B. BARBIER, LLC, Columbia, South Carolina, for Appellant 

Stanley J. Pokorney. Jeffrey A. Breit, BREIT CANTOR GRANA BUCKNER, PLLC, 

Virginia Beach, Virginia, for Appellee.
4

KING, Circuit Judge:

Four defendants in the underlying proceedings — Hub International Limited and 

Hub International Midwest Limited (collectively, “Hub International”), along with two of 

their employees, Stanley Pokorney and Scott Pokorney (together with Hub International, 

the “Appellants”) — pursue these consolidated appeals from the district court’s denial of

their motion to compel arbitration. The Appellants sought arbitration of federal and state 

claims alleged against them by plaintiff Berkeley County School District (“Berkeley

Schools”) in the District of South Carolina. The district court denied the Appellants’

motion to compel arbitration, ruling that Berkeley Schools had not agreed to arbitrate

those claims. See Berkeley Cty. Sch. Dist. v. Hub Int’l Ltd., 363 F. Supp. 3d 632, 651

(D.S.C. 2019) (the “Denial Order”). In rendering its decision, however, the court failed 

to resolve — in the proper manner — factual disputes that are material to the arbitration

agreement issue. Because federal law, that is, 9 U.S.C. § 4, requires those disputes to be 

resolved in trial proceedings, we vacate and remand.

1

I.

A.

On January 18, 2018, a plaintiff denominated as the Berkeley County School 

Board of Trustees filed suit in the District of South Carolina against multiple defendants. 

 1 Section 4 of Title 9 of the United States Code provides, in pertinent part, that 

“[i]f the making of [an] arbitration agreement . . . be in issue, the court shall proceed 

summarily to the trial thereof.”
5

Pertinent here, the complaint alleged federal and state claims against the four Appellants,

plus Knauff Insurance Agency, Inc. (which Hub International purchased in 2012), and

Brantley Thomas, a former Berkeley Schools Chief Financial Officer. The claims were

predicated on a massive insurance contract steering and kickback fraud conspiracy that 

spanned the period from 2001 to 2016, and that was perpetrated by the Appellants, 

Knauff Insurance, and CFO Thomas. The complaint alleged that the steering and 

kickback fraud scheme caused Berkeley Schools to lose millions of dollars.

B.

1.

On March 5, 2018, appellant Hub International moved in the district court to 

compel arbitration of the claims alleged, pursuant to the Federal Arbitration Act (the 

“Arbitration Motion”).

2

 Appellants Stanley Pokorney and Scott Pokorney joined the 

Arbitration Motion, and Hub International supported it with six purported Brokerage 

Service Agreements between Knauff Insurance and Berkeley Schools, spanning the 

period from 2002 to 2011 (the “Brokerage Service Agreements” or the “Agreements”).

3

 

The Agreements generally provided that, in exchange for annual fees, Knauff Insurance 

 2 Although they are named as defendants in the complaint, Knauff Insurance and 

CFO Thomas did not seek to compel arbitration. Neither Knauff Insurance nor Thomas 

are appellants in these proceedings.

3 Hub International also supported the Arbitration Motion with the declaration of 

Julia Benfield, a former Knauff Insurance employee and current Hub International 

employee. Benfield declared that she discovered the Brokerage Service Agreements in 

Hub International’s files in its Charlotte, North Carolina, office.
6

would provide insurance-related services to Berkeley Schools. Those services included

identifying risks, reviewing existing insurance contracts, recommending additional 

insurance policies, arranging the purchase of new policies, and monitoring insurance 

claims made under the various policies.

The Arbitration Motion emphasized that each of the Brokerage Service 

Agreements contained an arbitration clause. In that regard, the Agreements provided 

thusly:

All disputes, claims or controversies relating to [these Agreements], or the 

services provided, which are not otherwise settled, shall be submitted to a 

panel of three arbitrators and resolved by final and binding arbitration, to 

the exclusion of any courts of laws, under the commercial rules of the 

American Arbitration Association.

See J.A. 91, 96, 101, 106, 114, 121 (the “Arbitration Clauses”).

4

 Invoking the Arbitration 

Clauses, the Arbitration Motion contended that the claims alleged in the complaint 

related to the Agreements and thus had to be arbitrated.

5

As pertinent here, the six Brokerage Service Agreements were each addressed to 

CFO Thomas and dated June 18, 2002; June 27, 2003; August 16, 2005; December 19, 

2006; December 19, 2009; and May 1, 2011. The June 2002 Agreement was for one year 

and was signed on behalf of Berkeley Schools by a person named Angel Cartwright and

 4 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by 

the parties in these appeals.

5 As previously specified, Hub International purchased Knauff Insurance in 2012. 

Hub International thus invoked the Arbitration Clauses as Knauff Insurance’s purported 

successor-in-interest.
7

on behalf of Knauff Insurance by Stanley Pokorney. The June 2003 Agreement was also 

for one year and was signed on behalf of Berkeley Schools by CFO Thomas and on 

behalf of Knauff Insurance by Stanley Pokorney. In contrast to the two earlier 

Agreements, the August 2005, December 2006, December 2009, and May 2011 

Agreements were not signed, but generally purported to be between Berkeley Schools 

and Knauff Insurance for multi-year periods.

2.

a.

On March 19, 2018 — about two weeks after the Appellants moved to compel 

arbitration — Berkeley Schools substituted itself for the Berkeley County School Board 

of Trustees as the only plaintiff in these proceedings and filed an amended complaint. 

See Berkeley Cty. Sch. Dist. v. Hub Int’l Ltd., No. 2:18-cv-00151 (D.S.C. Mar. 19, 2018), 

ECF No. 36 (the “Operative Complaint”).6

 The Operative Complaint names as 

defendants the four Appellants, Knauff Insurance, and CFO Thomas.7

 6 Under South Carolina law, Berkeley Schools is ostensibly the proper named 

plaintiff and is entitled to pursue a lawsuit in its own name. See S.C. Code Ann. § 59-17-

10 (providing that “[e]very school district is and shall be a body politic and corporate” 

and “may sue and be sued” in its own name).

7 The parties and the district court apparently treated the Operative Complaint as 

properly filed “as a matter of course” pursuant to Rule 15(a)(1)(B) of the Federal Rules 

of Civil Procedure. The Operative Complaint was filed within 21 days of the Arbitration 

Motion, which was apparently considered to be “a responsive pleading,” as contemplated 

by Rule 15(a)(1)(B). The Appellants did not seek to strike the Operative Complaint.
8

According to the Operative Complaint, Knauff Insurance and its employee, 

Stanley Pokorney, had provided insurance brokerage and consulting services to Berkeley

Schools from 2001 to 2012. After acquiring Knauff Insurance in 2012, Hub International

began providing insurance brokerage and consulting services to Berkeley Schools, and 

Stanley and Scott Pokorney — who became Hub International employees after it 

purchased Knauff Insurance — were closely involved in providing those services.

The Operative Complaint alleges, inter alia, that beginning in 2005 and continuing 

into 2017, Berkeley Schools CFO Thomas helped the Appellants and Knauff Insurance

secure contracts to broker insurance policies for Berkeley Schools and to conduct reviews 

of the existing insurance policies of Berkeley Schools. In exchange for Thomas’s 

assistance in steering those contracts to them, the Appellants and Knauff Insurance paid 

Thomas kickbacks “in the form of cash, expensive trips, hotel rooms, dinners, and spa 

services.” See Operative Complaint ¶ 62. The Appellants and Knauff Insurance were the

“insurance consultants” for Berkeley Schools, id. ¶ 238, and repeatedly breached their 

fiduciary duties by advising Berkeley Schools to purchase insurance that was

unnecessary and excessive, and by charging Berkeley Schools “sham consulting fees for 

brokerage and insurance review,” id. ¶ 213. 

The Operative Complaint alleges that CFO Thomas, acting on Berkeley Schools’ 

behalf, secured from the Appellants and Knauff Insurance a series of excessive and 

unnecessary insurance policies. Even though Thomas purportedly obtained those policies

for Berkeley Schools, the Schools already had insurance coverage for most of the risks.

For policies secured from the Appellants and Knauff Insurance that were not duplicative, 
9

the Operative Complaint specifies that they were entirely unnecessary for other reasons,

i.e., that Berkeley Schools had not historically purchased them, or that they were “highly 

unusual and prohibitively expensive.” See Operative Complaint ¶ 96. Under the 

Operative Complaint, from 2005 to 2012, Berkeley Schools paid Knauff Insurance more 

than $3,300,000 in insurance premiums and approximately $1,600,000 in consulting and 

broker’s fees. From 2012 through 2017, Berkeley Schools paid Hub International more 

than $3,400,000 in insurance premiums and about $1,500,000 in consulting and broker’s 

fees.

According to the Operative Complaint, Berkeley Schools first learned on February 

6, 2017, of the steering and kickback fraud scheme and conspiracy that the Appellants, 

Knauff Insurance, and CFO Thomas had orchestrated and executed. On that occasion, 

federal agents informed Berkeley Schools officials that CFO Thomas was the subject of a

criminal investigation. In connection with that investigation, Thomas pleaded guilty in 

Charleston on January 16, 2018, to a twenty-count criminal Information filed on 

December 7, 2017, by the United States Attorney for the District of South Carolina. The 

Information charged Thomas with a single count of fraud and embezzlement from a 

federally funded program, nine counts of money laundering, and ten counts of honest 

services wire fraud.8

 

 8 On May 17, 2019, the district court entered judgment with respect to the 

Information, sentencing Thomas to 63 months in prison and ordering him to pay Berkeley

Schools more than $1,000,000 in restitution. See United States v. Thomas, No. 2:17-cr01150 (D.S.C. May 17, 2019), ECF No. 52 at 2, 5.
10

Pursuant to the Information, the ten honest services wire fraud offenses spanned 

the time period from March 2010 through November 2016. Those offenses related to 

Thomas receiving kickbacks from an insurance broker in exchange for steering insurance 

contracts to the broker. The Information further alleged that Thomas had used his CFO 

position with Berkeley Schools to steer the contracts to the broker, in that Thomas was 

responsible for procuring insurance policies on Berkeley Schools’ behalf and for ensuring 

payments to its vendors. The Information identified ten checks received from the broker

by Thomas between February 2013 and November 2016, and alleged that those checks 

represented wire fraud kickbacks. The Operative Complaint identifies the broker as 

appellant Stanley Pokorney.

In late 2017, while the federal investigation into Thomas’s conduct was ongoing, 

he was indicted by a South Carolina grand jury in Columbia, in connection with the

steering and kickback fraud scheme. The state Indictment charged Thomas with four 

embezzlement offenses, and Thomas pleaded guilty to all counts. Pertinent here, Thomas 

admitted to “deliberately causing [Berkeley Schools] to overpay a vendor, and then 

having the vendor send a refund of the overpayment to his home address, upon which the 

funds were converted to his personal use.” See J.A. 209. The Operative Complaint 

alleges that the person who sent the refund to Thomas’s home was appellant Stanley 

Pokorney, who was working for Knauff Insurance. That unlawful conduct occurred in 

November 2007.

Berkeley Schools attached to the Operative Complaint a total of twenty-three 

exhibits, including the federal Information, the state Indictment, and various emails that 
11

carried out and implemented the scheming and conspiratorial dealings between the 

Appellants and Thomas. Berkeley Schools also attached thereto a spreadsheet specifying 

payments for brokerage services from Berkeley Schools to Knauff Insurance beginning in 

March 2005 and continuing through November 2012. 

Predicated on the steering and kickback fraud scheme and conspiracy, the 

Operative Complaint alleges claims against the Appellants, Knauff Insurance, and 

Thomas for federal RICO violations, that is, civil violations of the Racketeer Influenced

and Corrupt Organizations Act, plus state law claims for fraud, negligent 

misrepresentation, civil conspiracy, breach of fiduciary duty, negligence, conversion, 

constructive trust, and unjust enrichment. The Operative Complaint seeks statutory treble 

damages totalling more than $29,000,000, pursuant to 18 U.S.C. § 1964(c) (authorizing 

“threefold” damages to party injured by RICO violations).

b.

On March 19, 2018, the very day it filed the Operative Complaint, Berkeley

Schools responded to the Arbitration Motion, denying that it had ever agreed to arbitrate 

any claims against the Appellants and Knauff Insurance. Berkeley Schools filed with its 

response the March 19, 2018 declaration of Marcia Abrahamson, Berkeley Schools’ 

Director of Procurement and Contracting, confirming that there was nothing in the

Berkeley Schools’ records relating to or containing the unsigned Brokerage Service 

Agreements of August 2005, December 2006, December 2009, and May 2011. In 

addition, Abrahamson swore that “Thomas, in his position as Chief Financial Officer, did 

not have any authority to unilaterally contract for the procurement of insurance 
12

consulting services . . . on behalf of [Berkeley Schools] during the period from 2005 

through the present.” See J.A. 125.

3.

On March 26, 2018, the Appellants filed a reply in further support of the 

Arbitration Motion, contending that the Operative Complaint was “part of a thinly-veiled 

attempt to gerrymander [Berkeley Schools’] case to avoid arbitration.” See Berkeley Cty. 

Sch. Dist. v. Hub Int’l Ltd., No. 2:18-cv-00151 (D.S.C. Mar. 26, 2018), ECF No. 38 at 1. 

The Appellants thus maintained that the Arbitration Clauses also mandated arbitration of 

Berkeley Schools’ claims alleged in the Operative Complaint.

C.

1.

The district court conducted a non-evidentiary hearing on the Arbitration Motion

in Charleston on May 17, 2018. During the hearing, Hub International’s counsel

maintained that the Arbitration Clauses require arbitration of Berkeley Schools’ claims. 

He asserted that the Operative Complaint had changed the beginning date of the steering 

and kickback fraud scheme and conspiracy from 2001 to 2005 in order to “dodge” the 

June 2002 and June 2003 Brokerage Service Agreements, which were signed by 

Cartwright and Thomas, respectively, on Berkeley Schools’ behalf. See J.A. 331. 

According to counsel, the June 2002 and June 2003 Agreements related to the Operative 

Complaint’s claims, and Berkeley Schools had — at the very least — knowledge of those 

Agreements and the Arbitration Clauses. Counsel emphasized that Berkeley Schools had

paid invoices submitted by Knauff Insurance for services provided pursuant to the four
13

unsigned Brokerage Service Agreements. He thus argued that Berkeley Schools had 

accepted those Agreements by performance and had consequently agreed to the 

Arbitration Clauses contained therein.

Berkeley Schools’ lawyer orally responded that Berkeley Schools had never

agreed to arbitrate any of its claims against the Appellants and Knauff Insurance. He

represented to the court that Berkeley Schools never knew that the Brokerage Service 

Agreements (including the Arbitration Clauses) existed until receiving the Arbitration

Motion on March 5, 2018. As for the June 2002 Agreement signed by Cartwright, 

Berkeley Schools’ lawyer advised the court that she was simply CFO Thomas’s

“underling” at Berkeley Schools, and thus had no authority to bind Berkeley Schools. 

See J.A. 351. The lawyer stressed that the four Agreements purportedly formed within 

the timeframe alleged in the Operative Complaint were never signed by anyone or any 

party, and that Abrahamson could not locate any of them in the Berkeley Schools’

records.

2.

On January 29, 2019, the district court entered its Denial Order. By that point in 

time, no answer had been filed by the Appellants to either the initial complaint or the 

Operative Complaint. And no discovery of any kind or type had been conducted. Thus, 

the court had before it only the Operative Complaint and its exhibits, the Arbitration 

Motion and its exhibits, Berkeley Schools’ response to the Arbitration Motion and 

supporting exhibits, and the Appellants’ reply thereto.
14

In assessing the Brokerage Service Agreements and the Arbitration Clauses, the 

Denial Order accepted the factual representations made by Berkeley Schools’ lawyer that 

the Schools had no prior knowledge of the unsigned Agreements. And the court 

determined that the lawyer’s representations were supported by the lack of signatures on 

those Agreements. The Denial Order ruled that Berkeley Schools “could not have agreed 

to the Brokerage Service Agreements if it did not know they existed,” and therefore 

“there was no meeting of the minds where [Berkeley Schools] agreed to be bound by the

Brokerage Services Agreements or the Arbitration Clauses.” See Berkeley Cty. Sch. Dist. 

v. Hub Int’l Ltd., 363 F. Supp. 3d 632, 649 (D.S.C. 2019).

Insofar as the Appellants asserted that Berkeley Schools had accepted the 

unsigned Brokerage Service Agreements and the Arbitration Clauses by “paying the 

broker’s and consultant’s fees,” the Denial Order concluded that the “usual rule” that a 

party can accept an offer by performance does not apply “to this most unusual set of 

facts.” See Berkeley Cty. Sch. Dist., 363 F. Supp. 3d at 649. Accepting the allegations of 

the Operative Complaint, the Denial Order determined that Thomas “caused [Berkeley

Schools] to make the payments and perform the contract[s],” and that he “did so as part 

of a scheme to defraud [Berkeley Schools].” Id. For those reasons, the court was 

“unwilling to consider [Berkeley Schools’] payment of the broker’s and consultant’s fees 

as [Berkeley Schools’] acceptance of the Brokerage Service Agreements.” Id. at 650.

Having resolved that Berkeley Schools had not assented to the unsigned

Brokerage Service Agreements, the district court assessed the June 2002 Agreement 

signed by Cartwright. In that regard, the Denial Order accepted the factual representation 
15

of Berkeley Schools’ lawyer that Cartwright was Thomas’s “underling,” and doing his 

bidding. See Berkeley Cty. Sch. Dist., 363 F. Supp. 3d at 650 & n.10. Based on the 

lawyer’s representation, the court “impute[d] [Cartwright’s] signature to Thomas,” and

rejected any notion that Cartwright had bound Berkeley Schools to the June 2002 

Agreement. Id. at 650 n.10.

Finally, the district court considered whether Thomas had bound Berkeley Schools

to any of the Brokerage Service Agreements and Arbitration Clauses. The Denial Order

ruled that Thomas had not acted within “the scope of his employment” as the CFO for 

Berkeley Schools when he signed (or caused Cartwright to sign) the June 2002 and June 

2003 Brokerage Service Agreements, and when “he caused [Berkeley Schools] to pay the 

fees [pursuant to the unsigned Agreements] to the [Appellants and Knauff Insurance].” 

See Berkeley Cty. Sch. Dist., 363 F. Supp. 3d at 650. The Denial Order explained that, 

under South Carolina law, an employee’s conduct falls outside the scope of his 

employment and “will not be imputed to his employer” when he “‘acts for some 

independent purpose of his own, wholly disconnected from the furtherance of his 

employer’s business.’” Id. (quoting Vereen v. Liberty Life Ins. Co., 412 S.E.2d 425, 429 

(S.C. Ct. App. 1991)). Because Thomas’s actions were, the court found, “for the 

independent purpose of receiving kickbacks” and “actually harmed” Berkeley Schools, 

the court concluded that Thomas did not bind Berkeley Schools to the Brokerage Service 

Agreements and the Arbitration Clauses. Id. And because Berkeley Schools did not 

otherwise assent thereto, the Arbitration Motion was denied.
16

The Appellants noticed three separate appeals from the Denial Order, and those 

appeals have now been consolidated. We possess jurisdiction pursuant to 9 U.S.C. 

§ 16(a)(1)(B), which provides for interlocutory appellate review of an order denying a 

motion to compel arbitration.

II.

We review de novo the district court’s denial of the Arbitration Motion, which was 

pursued under 9 U.S.C. § 4. See Minnieland Private Day Sch., Inc. v. Applied 

Underwriters Captive Risk Assurance Co., 913 F.3d 409, 415 (4th Cir. 2019). In making 

that review, we accept as true the allegations of the Operative Complaint that relate to the 

“underlying dispute between the parties.” See Schnabel v. Trilegiant Corp., 697 F.3d 

110, 113 (2d Cir. 2012) (explaining that, in reviewing the denial of a § 4 motion, a court 

accepts as true the allegations in the “complaint that relate to the underlying dispute 

between the parties”); Suburban Leisure Ctr., Inc. v. AMF Bowling Prods., Inc., 468 F.3d 

523, 525 (8th Cir. 2006) (accepting allegations of complaint as true in reviewing court’s 

denial of motion to compel arbitration).

Section 4 of Title 9 authorizes a “party aggrieved by the alleged failure, neglect, or 

refusal of another to arbitrate under a written agreement for arbitration [to] petition [a]

United States district court . . . for an order directing that such arbitration proceed in the 

manner provided for in such agreement.” See 9 U.S.C. § 4. Section 4 provides that, 

when presented with such a petition (or motion), a court
17

shall hear the parties, and upon being satisfied that the making of the 

agreement for arbitration . . . is not in issue, the court shall make an order 

directing the parties to proceed to arbitration in accordance with the terms 

of the agreement. 

Id. On the other hand, § 4 further provides that if the “making of the arbitration 

agreement . . . be in issue,” then “the court shall proceed summarily to the trial thereof.” 

Id. (the “Trial Provision”).

Section 4 thus requires that the district court — rather than an arbitrator — decide 

whether the parties have formed an agreement to arbitrate. See Granite Rock Co. v. Int’l 

Bhd. of Teamsters, 561 U.S. 287, 296 (2010) (explaining that dispute over formation of 

agreement to arbitrate “is generally for court[] to decide”); Snowden v. CheckPoint Check 

Cashing, 290 F.3d 631, 637 (4th Cir. 2002) (agreeing with other courts of appeals that 

party’s assent to arbitration provision is question for court).9

 In making such a decision, 

the court is obliged to conduct a trial under the Trial Provision when a party 

unequivocally denies “that an arbitration agreement exists,” and “show[s] sufficient facts 

 9 The Supreme Court has recognized “that parties may agree to have an arbitrator 

decide not only the merits of a particular dispute but also gateway questions of 

arbitrability.” See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 

(2019) (internal quotation marks omitted). Here, the Arbitration Clauses incorporate the 

Commercial Rules of the American Arbitration Association, which provide that an 

arbitrator has the power to rule on arbitrability issues. See Am. Arbitration Ass’n, 

Commercial Arbitration Rules, R-7(a) (amended Oct. 1, 2013). Such provisions 

requiring the arbitration of arbitrability questions do not, however, undermine § 4 of Title 

9 and preclude a court from deciding that a party never made an agreement to arbitrate 

any issue (which would necessarily encompass an arbitrability issue). See, e.g., 9 U.S.C. 

§ 4; Lloyd’s Syndicate 457 v. FloaTEC, LLC, 921 F.3d 508, 514 (5th Cir. 2019); RiveraColón v. AT&T Mobility P.R., Inc., 913 F.3d 200, 207 (1st Cir. 2019).
18

in support” thereof. See Chorley Enters., Inc. v. Dickey’s Barbecue Rests., Inc., 807 F.3d 

553, 564 (4th Cir. 2015).

To decide whether “sufficient facts” support a party’s denial of an agreement to 

arbitrate, the district court is obliged to employ a standard such as the summary judgment 

test. See Chorley Enters., Inc., 807 F.3d at 564; see also Fed. R. Civ. P. 56(a). In

applying that standard, the court is entitled to consider materials other than the complaint 

and its supporting documents. See Galloway v. Santander Consumer USA, Inc., 819 F.3d 

79, 86 (4th Cir. 2016) (evaluating materials outside of complaint in assessing motion to 

compel arbitration). If the record reveals a genuine dispute of material fact “regarding 

the existence of an agreement to arbitrate,” see Chorley Enters., Inc., 807 F.3d at 564, the 

“court shall proceed summarily” and conduct a trial on the motion to compel arbitration,

see 9 U.S.C. § 4. A factual dispute is material if the resolution thereof “might affect the 

outcome of the [motion] under the governing law.” See Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986).

III.

Here, the Appellants contend that the district court erred in denying the Arbitration 

Motion for two primary reasons. First, they maintain that the court misapprehended the 

applicable South Carolina legal principles in ruling that Thomas did not bind Berkeley

Schools to the Brokerage Service Agreements and the Arbitration Clauses. Second, the 

Appellants contend that the court erred when it resolved disputed material factual issues 
19

without a trial, in contravention of the Trial Provision.

10 As explained below, although 

no party requested a trial on the Arbitration Motion, we are satisfied that the court was 

obliged to conduct one, in that genuine disputes of material fact exist regarding whether 

Berkeley Schools agreed to arbitrate the claims alleged in the Operative Complaint.

A.

We begin with the contention of Berkeley Schools that we should decline to 

address whether the district court erred in not conducting a trial on the Arbitration 

Motion, in that the Appellants did not properly preserve the factual disputes issue in the 

district court. Although Berkeley Schools is correct that we generally do not consider an 

issue raised for the first time on appeal, we possess the discretion to do so. See Singleton 

v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and 

resolved for the first time on appeal is one left primarily to the discretion of the courts of 

appeals, to be exercised on the facts of individual cases.”); United States v. Simms, 914 

F.3d 229, 238 n.4 (4th Cir. 2019) (en banc) (explaining discretion of court of appeals to 

review issue presented for first time on appeal); Brickwood Contractors, Inc. v. Datanet 

 10 At oral argument of these appeals, Hub International’s lawyer initially appeared 

to change his position on whether material factual disputes exist in relation to the 

Arbitration Motion. That is — contrary to Hub International’s appellate briefs — counsel

asserted that there are no material factual disputes. Counsel later returned to his initial 

position, however, maintaining that the district court should have conducted a trial on the 

Arbitration Motion and conceding that the parties do not agree on the relevant facts. 

Despite the potential disconnect between the briefing and the oral argument 

representations, we are satisfied to address the issue as presented in the briefs. See Baker 

v. Corcoran, 220 F.3d 276, 295 n.16 (4th Cir. 2000) (electing to address issue as raised in 

appellate brief where conflict existed between brief and oral argument).
20

Eng’g, Inc., 369 F.3d 385, 396-97 (4th Cir. 2004) (en banc) (same). And we have 

exercised such discretion where, inter alia, a district court makes an error that is “plain,”

or where declining to decide the issue “would result in a fundamental miscarriage of 

justice.” See Dixon v. Edwards, 290 F.3d 699, 719 (4th Cir. 2002); see also Williams v. 

Prof’l Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002) (explaining that we may decide 

issue first raised on appeal under “exceptional circumstances”).

Here, we will assess and resolve the factual disputes issue because the district 

court plainly erred in failing to conduct the proceedings mandated by the Trial Provision. 

See 9 U.S.C. § 4 (“If the making of the arbitration agreement . . . be in issue, the court 

shall proceed summarily to the trial thereof.” (emphasis added)); Brickwood Contractors, 

Inc., 369 F.3d at 399 (resolving challenge to imposition of sanctions presented for first 

time on appeal because lower court contravened mandatory language of Rule 11).11 

Moreover, none of the parties to these appeals will be prejudiced by this exercise of

discretion. That is, the record is sufficiently developed on the question of whether the 

Trial Provision was contravened, and the parties have had a full opportunity to brief and 

argue it. See Abril v. Virginia, 145 F.3d 182, 185 n.4 (4th Cir. 1998) (emphasizing 

 11 Put succinctly, the district court’s error in failing to adhere to the Trial Provision

is plain, and the failure to conduct a trial pursuant thereto impacted the substantial rights 

of the Appellants. See In re Celotex Corp., 124 F.3d 619, 630-31 (4th Cir. 1997) 

(applying plain error standard in civil appeal). And, in these circumstances, our failure to 

recognize the error would seriously affect the fairness and integrity of the proceedings. 

Id.
21

“fairness” considerations when exercising discretion to address issue first presented on 

appeal).

B.

Exercising our discretion to review and resolve the factual disputes issue, we are 

satisfied that a remand is required by the Trial Provision of § 4. In explaining our ruling, 

we will begin with a summary of pertinent contract and agency law principles that relate 

to whether Berkeley Schools has agreed to the Brokerage Service Agreements and the 

Arbitration Clauses therein, and whether Thomas — as Berkeley Schools’ agent —

bound the Schools to those Agreements and Clauses. Applying those contract and 

agency law principles, we will then identify some material factual issues that the trial

proceedings must resolve.

1.

Before identifying factual disputes on which a trial must be conducted, we will

elucidate some state law principles that render those disputes material. See Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (explaining that “substantive law” 

identifies “which facts are material”). Because the issue of whether an arbitration 

agreement has been formed is an issue of contract law, we apply the “ordinary state-law 

principles that govern the formation of contracts” in reviewing a challenge under § 4. See 

Minnieland Private Day Sch., Inc. v. Applied Underwriters Captive Risk Assurance Co.,

913 F.3d 409, 415 (4th Cir. 2019) (internal quotation marks omitted). In these appeals, 

Berkeley Schools and the Appellants agree that South Carolina law applies. See 
22

Galloway v. Santander Consumer USA, Inc., 819 F.3d 79, 85 (4th Cir. 2016) (applying 

state law agreed upon by parties in deciding arbitration issue).

Under South Carolina law, a contract is formed between two parties when there is, 

inter alia, “a mutual manifestation of assent to [its] terms.” See Edens v. Laurel Hill, Inc., 

247 S.E.2d 434, 436 (S.C. 1978) (internal quotation marks omitted); see also Stevens & 

Wilkinson of S.C., Inc. v. City of Columbia, 762 S.E.2d 696, 701 (S.C. 2014) (“A valid 

and enforceable contract requires a meeting of the minds between the parties with regard 

to all essential and material terms of the agreement.”). Such mutual manifestation 

“ordinarily takes the form of an offer or proposal by one party followed by an acceptance 

by the other party.” See Restatement (Second) of Contracts § 22 (Am. Law Inst. 1981); 

see also Sauner v. Pub. Serv. Auth. of S.C., 581 S.E.2d 161, 166 (S.C. 2003) (“The 

necessary elements of a contract are an offer, acceptance, and valuable consideration.”). 

And the manifestation of assent can be a return promise or performance. See Sauner, 581 

S.E.2d at 165-66.

As the Denial Order recognized, an entity (such as Berkeley Schools) can be 

bound by an acceptance made by another (such as Thomas) of terms of an offer if there is

an agency relationship between the two. See Sampson & Wyatt v. Singer Mfg. Co., 5 S.C. 

465, 467 (S.C. 1875) (explaining that agent can bind his principal if agent has authority to 

do so and “duly exercise[s] it”). In that situation, the entity is the “principal,” and the 

person binding the entity is the principal’s “agent.” Put succinctly, “[a]n agent 

contracting with the authority of his principal binds him to the same extent as if the 

principal personally made the contract.” See S.C. Ins. Co. v. James C. Greene & Co., 348 
23

S.E.2d 617, 624 (S.C. Ct. App. 1986) (emphasis added).

12 And that proposition can 

encompass an agreement to arbitrate made between an agent (for example, Thomas) on 

behalf of his principal (Berkeley Schools), on the one hand, and a third party (the 

Appellants or Knauff Insurance), on the other. See Wilson v. Willis, 827 S.E.2d 167, 174 

(S.C. 2019).13

Whether the essential agency relationship actually exists, and the extent of the

agent’s authority, is a question of fact under South Carolina law. See Am. Fed. Bank, 

FSB v. Number One Main Joint Venture, 467 S.E.2d 439, 442 (S.C. 1996) (existence of 

agency relationship is question of fact); Hiott v. Guar. Nat’l Ins. Co., 496 S.E.2d 417, 

421 (S.C. Ct. App. 1997) (extent of agent’s authority is question of fact). The necessary

agency relationship can be proven “by evidence of actual [authority] or apparent 

authority.” See R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 540 S.E.2d 113, 

117 (S.C. Ct. App. 2000). 

 12 A published decision of the intermediate court of appeals of South Carolina 

generally constitutes binding precedent, unless the decision conflicts with a decision from 

the high court of South Carolina. See State v. Ross, 815 S.E.2d 754, 757 n.5 (S.C. 2018) 

(explaining that published opinion of South Carolina appellate court is binding 

precedent); S.C. App. Ct. R. 220(a) (explaining publication of appellate decisions); see 

also S.C. Const., art. V. § 9 (“The decisions of the Supreme Court shall bind the Court of 

Appeals as precedents.”).

13 South Carolina’s highest court “has recognized several theories that could bind 

nonsignatories to arbitration agreements.” See Wilson, 827 S.E.2d at 174. We focus on 

agency relationship concepts because they more likely resemble the parties’ positions in 

these proceedings.
24

Under South Carolina law, “actual authority [must be] expressly conferred upon 

the agent by the principal.” See Richardson v. P.V., Inc., 682 S.E.2d 263, 265 (S.C. 

2009). Apparent authority, on the other hand, can exist where “the principal knowingly 

permits the agent to exercise authority, or the principal holds the agent out as possessing 

such authority.” Id. In other words, an apparent authority inquiry “focuses on the 

principal’s manifestation to a third party that the agent has certain authority.” See 

Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292, 296 (S.C. 1996). Under the concept of 

apparent authority, the principal is “bound by the acts of its agent when it places the 

agent in such a position that persons of ordinary prudence, reasonably knowledgeable 

with business usages and customs, are led to believe that the agent has certain authority 

and they in turn deal with the agent based upon that assumption.” Id. When, however, a

person dealing with an agent has notice of restrictions on the agent’s authority and the 

agent contravenes those restrictions, or that person could not reasonably believe that the 

principal authorized the agent’s conduct, the principal will not be bound by the agent’s 

actions. See id.; Vereen v. Liberty Life Ins. Co., 412 S.E.2d 425, 428-29 (S.C. Ct. App. 

1991). 

Important here — on the interplay of agency and contract principles — whether 

the agent possesses actual or apparent authority to bind his principal goes to the 

formation of a contract. See Nat’l Fed. of the Blind v. The Container Store, Inc., 904 

F.3d 70, 81 (1st Cir. 2018) (“A challenge to formation can . . . be done by showing that 

one party never agreed to the terms of the contract, [or] that a signatory did not possess 

the authority to commit the principal . . . .” (citing Buckeye Check Cashing, Inc. v. 
25

Cardegna, 546 U.S. 440, 444 n.1 (2006)); Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 

F.3d 587, 591 (7th Cir. 2001) (explaining that whether agent had authority to bind 

principal is contract formation issue); Three Valleys Mun. Water Dist. v. E.F. Hutton & 

Co., 925 F.2d 1136, 1140-41 (9th Cir. 1991) (same). Accordingly, if the agent (for 

example, Thomas) lacks authority to bind his principal (Berkeley Schools) to a contract 

with a third party (the Appellants or Knauff Insurance) yet purports to do so anyway, no

contract is formed between the principal and the third party. See, e.g., Nat’l Fed. of the 

Blind, 904 F.3d at 81; Sphere Drake Ins. Ltd., 256 F.3d at 591; cf. Sauner, 581 S.E.2d at 

166 (emphasizing that offer and acceptance are “necessary elements” to form contract); 

Edens, 247 S.E.2d at 436 (explaining that mutual assent to terms is required to form 

contract). In sum, the existence of a contract is ultimately a question for a factfinder

where “the evidence is either conflicting or admits of more than one inference.” See 

Small v. Springs Indus., Inc., 357 S.E.2d 452, 454 (S.C. 1987).

2.

Consistent with the South Carolina legal principles spelled out above, we are 

satisfied that there are genuine disputes of material fact that must be resolved in order to 

determine whether Berkeley Schools agreed to arbitrate its claims against the Appellants. 

To assist that endeavor, we will identify factual disputes concerning certain Brokerage 

Service Agreements and the Arbitration Clauses, including disputes regarding Berkeley

Schools’ knowledge of the unsigned Agreements, whether Thomas possessed actual

authority to approve those Agreements for Berkeley Schools, and whether Thomas 
26

possessed any apparent authority in that respect.

14 In so doing, we begin with the 

formation of the four Agreements that fall within the period of the alleged claims (that is, 

2005 to 2017). We then turn to the June 2002 and June 2003 Agreements and their 

Arbitration Clauses, both of which predate the alleged conduct underlying the Operative

Complaint.

a.

(1)

To start, there is a significant factual dispute regarding Berkeley Schools’

knowledge of the Brokerage Service Agreements purportedly formed during the period 

encompassed by the Operative Complaint, i.e., the four unsigned Agreements. On the 

one hand, those Agreements are in the nature of fugitive documents and are not signed by

Berkeley Schools or anyone else. See Chastain v. Robinson-Humphrey Co., 957 F.2d 

851, 854-55 (11th Cir. 1992) (concluding that dispute of fact existed where party denied 

existence of arbitration agreement and contract containing arbitration clause was 

unsigned), abrogation on other grounds recognized by Bazemore v. Jefferson Capital 

Sys., LLC, 827 F.3d 1325, 1329-30 (11th Cir. 2016). And Abrahamson (Berkeley

Schools’ Director of Procurement and Contracting) has sworn that those Agreements 

 14 We assess the Brokerage Service Agreements and the Arbitration Clauses 

together because, in these circumstances, the latter could not exist without the former. 

That is — although an arbitration clause is generally “severable from the contract in 

which it appears” — if the contract in which the arbitration clause “appears” was never 

formed, then the arbitration clause therein does not exist. See Granite Rock Co., 561 U.S. 

at 299 (explaining severability principle and that such principle does not apply where 

party challenges formation of contract containing arbitration clause).
27

were not in the Berkeley Schools’ files. See Kirleis v. Dickie, McCamey & Chilcote, 

P.C., 560 F.3d 156, 162 (3d Cir. 2009) (ruling that party’s sworn assertion that she never 

received purported agreement containing arbitration clause created material dispute of 

fact). 

On the other hand, the Appellants rely on the fact that Berkeley Schools made 

payments of large sums of money to Knauff Insurance for purported brokerage services

from 2005 through 2012. A reasonable factfinder could thus infer Berkeley Schools’

knowledge of, and acquiescence to, the Agreements, which contained provisions relating 

to brokerage services. A factual dispute therefore exists with respect to Berkeley

Schools’ knowledge of the unsigned Agreements. And that dispute is material in these 

proceedings because it concerns Berkeley Schools’ acceptance of the Agreements and the

Arbitration Clauses. See Sauner, 581 S.E.2d at 166 (emphasizing that acceptance of offer 

is necessary to form contract).

(2)

Next, there are readily identifiable factual disputes regarding Thomas’s actual or

apparent authority to assent — on Berkeley Schools’ behalf — to the four unsigned 

Brokerage Service Agreements and their Arbitration Clauses. See Hiott, 496 S.E.2d at

421 (explaining that extent of agent’s authority is question of fact). As to actual

authority, Abrahamson explained in her declaration that

Thomas, in his position as Chief Financial Officer, did not have any 

authority to unilaterally contract for the procurement of insurance 

consulting services . . . on behalf of [Berkeley Schools] during the period 

from 2005 through the present.

 
28

See J.A. 125; see also Richardson, 682 S.E.2d at 265 (explaining that “actual authority is 

expressly conferred upon the agent by the principal”); Thompson v. Pruitt Corp., 784 

S.E.2d 679, 686 (S.C. Ct. App. 2016) (agreeing with other courts that agent may not 

expand actual authority). 

In contrast, the Information filed by the United States Attorney — to which 

Thomas pleaded guilty — specifies that, as Berkeley Schools’ CFO, Thomas was 

“responsible for procuring and paying for [its] insurance policies.” See J.A. 199; see also

Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005) (considering document attached 

to pleading as part thereof). Whether Thomas had actual authority to accept the

Agreements and the Arbitration Clauses on behalf of Berkeley Schools is thus a disputed 

material fact, and that dispute relates directly to the formation of those Agreements. See

Nat’l Fed. of the Blind, 904 F.3d at 81 (explaining that scope of agent’s authority goes to 

formation of contract); Sphere Drake Ins. Ltd., 256 F.3d at 591 (same); Three Valleys 

Mun. Water Dist., 925 F.2d at 1140-41 (same).

There is also a factual dispute concerning Thomas’s apparent authority to assent,

on Berkeley Schools’ behalf, to the four unsigned Brokerage Service Agreements and the

Arbitration Clauses therein. In support of apparent authority, Berkeley Schools held 

Thomas out as its CFO. That fact might lead a reasonable person to believe that Berkeley

Schools had granted Thomas ample authority to contract on its behalf. See Rickborn, 468 

S.E.2d at 296 (explaining that a principal is “bound by the acts of its agent when it places 

the agent in such a position that persons of ordinary prudence . . . are led to believe that 

the agent has certain authority”); WDI Meredith & Co. v. Am. Telesis, Inc., 597 S.E.2d 
29

885, 887 (S.C. Ct. App. 2004) (relying, in part, on employee’s “vice president” title in 

assessing apparent authority). And the payment of substantial brokerage fees to the 

Appellants and Knauff Insurance by Berkeley Schools could prompt a person of ordinary 

prudence to believe that Thomas had the authority to enter into the Agreements on the

Schools’ behalf.

On the other hand, however, a rational factfinder might well conclude that a 

reasonable person would not believe that Berkeley Schools had granted Thomas any

authority to illegally steer contracts, like the Brokerage Service Agreements, to the 

Appellants and Knauff Insurance. See Vereen, 412 S.E.2d at 428-29 (emphasizing that 

principal is not bound by agent’s conduct where third party could not reasonably believe 

that principal authorized agent’s conduct). Indeed, the Operative Complaint and the 

federal Information, read together, convincingly show that Thomas illegally steered

insurance contracts to the Appellants and Knauff Insurance. They also reveal that

Thomas’s acts of contract steering were ongoing in March 2010, shortly after the 

December 2009 Brokerage Service Agreement was purportedly formed (and while —

according to its terms — it was in effect), and before the May 2011 Agreement was 

allegedly formed. A reasonable factfinder could also conclude that those Agreements 

resulted from actions to carry out the steering and kickback fraud scheme and conspiracy, 

and that the other unsigned Agreements (i.e., the August 2005 and December 2006

Agreements) also resulted therefrom. See Sphere Drake Ins. Ltd. v. Clarendon Nat’l Ins. 

Co., 263 F.3d 26, 32-33 (2d Cir. 2001) (remanding for trial on motion to compel 
30

arbitration where third party knew, or should have known, that agent had exceeded his 

authority by entering into contract containing arbitration clause). 

Additionally, the Operative Complaint and state Indictment (to which Thomas also 

pleaded guilty) show that Thomas was actually involved in criminal conduct with the 

Appellants and Knauff Insurance over many years and as early as November 2007. That 

fact could readily undermine any understanding that Thomas possessed apparent 

authority to enter into the unsigned Agreements.

Turning to Berkeley Schools’ payments of brokerage fees to the Appellants and 

Knauff Insurance, the record is unclear as to who approved those payments from

Berkeley Schools. On this record, however, Thomas alone likely did so, as he oversaw

payments to Berkeley Schools’ vendors. And if Thomas arranged those payments as part 

of the kickback and fraud scheme and conspiracy with the Appellants and Knauff 

Insurance, a factfinder might well decline to attribute them to Berkeley Schools for 

apparent authority purposes. See R & G Constr., Inc., 540 S.E.2d at 118 (explaining that 

focus of apparent authority inquiry is on principal’s actions).

In sum, questions of material fact abound with respect to Thomas’s actual or

apparent authority to assent — on Berkeley Schools’ behalf — to the fugitive documents 

that constitute the unsigned Brokerage Service Agreements and the Arbitration Clauses 

therein. See Hiott, 496 S.E.2d at 421 (explaining that extent of agent’s authority is 

question of fact). Those factual questions concern the formation of the Agreements and 

the Arbitration Clauses, and can only be resolved by proceedings conducted pursuant to 

the Trial Provision. See, e.g., Nat’l Fed. of the Blind, 904 F.3d at 81 (“A challenge to 
31

formation can . . . be done by showing . . . that a signatory did not possess the authority to 

commit the principal . . . .”); Sandvik AB v. Advent Int’l Corp., 220 F.3d 99, 107 (3d Cir. 

2000) (affirming denial of motion to compel arbitration pending trial on agent’s authority 

to enter into arbitration agreement); Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 

F.2d 51, 55 (3d Cir. 1980) (remanding for trial to decide employee’s authority to bind 

employer to arbitration agreement).

b.

Having identified some factual disputes concerning the formation of the four

unsigned Brokerage Service Agreements and the Arbitration Clauses, we turn to the June 

2002 and June 2003 Agreements. Those Agreements predate the steering and kickback 

fraud scheme and conspiracy alleged in the Operative Complaint. The Denial Order

deemed the June 2002 and June 2003 Agreements as relevant because the initial 

complaint had predicated some of its claims on conduct dating from 2001. We have

recognized, however, that an amended complaint — such as the Operative Complaint

here — supersedes an initial complaint and renders it “of no effect.” See Fawzy v. 

Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (quoting Young v. City of Mt. 

Ranier, 238 F.3d 567, 573 (4th Cir. 2001)). 

Moreover, because the June 2002 Agreement terminated in June 2003, and the 

June 2003 Agreement ended in June 2004, the Arbitration Clauses therein could not 

require Berkeley Schools to arbitrate any claims on the basis of conduct that began after 

those Agreements terminated. At best, the June 2002 and June 2003 Agreements might 

be relevant to questions of whether Berkeley Schools had knowledge of, or assented to, 
32

the subsequent Brokerage Service Agreements and Arbitration Clauses. We leave such 

issues, however, for the remand proceedings.15

C.

At bottom, there are multiple disputes of material fact as to “the making of [any]

arbitration agreement” between Berkeley Schools and the Appellants. See 9 U.S.C. § 4. 

The Trial Provision obliged the district court to conduct trial proceedings and thereby

resolve those disputes before resolving the Arbitration Motion. See id. (requiring trial to 

be conducted where “the making of the arbitration agreement” is “in issue”); Meyer v. 

Uber Tech., Inc., 868 F.3d 66, 74 (2d Cir. 2017) (explaining that appellate court is 

obliged to remand for trial when “factual issue exists regarding the formation of the 

arbitration agreement”); Dillon v. BMO Harris Bank, N.A., 787 F.3d 707, 713 (4th Cir. 

2015) (emphasizing that district court must conduct trial on motion to compel arbitration 

where material factual dispute exists).

With respect to the type of trial proceedings that the district court might conduct 

on remand, we observe that § 4 provides as follows:

If no jury trial be demanded by the party alleged to be in default, . . . the 

court shall hear and determine such issue. Where such an issue is raised, 

the party alleged to be in default may . . . on or before the return day of the 

 15 In assessing the June 2002 Brokerage Service Agreement, the Denial Order

determined that Cartwright (who signed that Agreement) could not bind Berkeley

Schools because she was Thomas’s “underling,” and doing his bidding. See Berkeley 

Cty. Sch. Dist., 363 F. Supp. 3d at 650 & n.10. That conclusion was predicated solely on 

the representation of Berkeley Schools’ lawyer at the May 2018 hearing. We have 

explained, however, that the statements of a lawyer are not evidence. See Couch v. Jabe, 

679 F.3d 197, 202 n.4 (4th Cir. 2012). Such reliance was therefore unwarranted.
33

notice of application, demand a jury trial of such issue, and upon such 

demand the court shall make an order referring the issue or issues to a 

jury[.]

See 9 U.S.C. § 4. Section 4 thus authorizes the “party alleged to be in default” — that is, 

the party that failed to comply with an arbitration agreement — to request a jury trial “on 

or before the return day of the notice of application.” Id.; see also Burch v. P.J. Cheese, 

Inc., 861 F.3d 1338, 1349 (11th Cir. 2017) (explaining that party that failed to comply 

with arbitration agreement is “party alleged to be in default”).16 In these circumstances, 

it appears that Berkeley Schools, as “the party alleged to be in default” of the Arbitration 

Clauses, could have demanded a jury trial on the Arbitration Motion. See 9 U.S.C. § 4. 

Berkeley Schools could also presumably have waived a jury and accepted a bench trial.

Finally, we recognize § 4’s objective of encouraging the district courts to decide 

an arbitration dispute “quickly so the parties can get on with the merits of their dispute in 

the right forum.” See Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 978 (10th Cir. 

2014). In that regard, the Trial Provision requires a court to “proceed summarily” to trial 

when there is a material factual dispute related to the making of an arbitration agreement. 

See 9 U.S.C. § 4; see also Howard, 748 F.3d at 978-79 (“Having found unresolved 

questions of material fact precluded it from deciding definitively whether the parties 

agreed to arbitrate, the district court was in no position to deny a motion to arbitrate. It 

 16 The “notice of application” in § 4 is apparently the notice of the filing of the

motion to compel arbitration, and the “return day” therein is the date set for responding to 

such a motion. See Burch, 861 F.3d at 1349 n.19 (determining that the “return day of the 

notice of application” was when the party that received the motion to compel arbitration 

was required to respond). 
34

had to move promptly to trial of the unresolved factual questions surrounding the parties’ 

claimed agreement to arbitrate.”). The courts of appeals may disagree somewhat on the 

procedures that a district court should employ before conducting the trial, and there is not 

a great deal of authority on that topic. Compare Howard, 748 F.3d at 984 (“[W]hen 

factual disputes may determine whether the parties agreed to arbitrate, the way to resolve 

them isn’t by round after round of discovery and motions practice.”), with Guidotti v. 

Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 776 (3d Cir. 2013) (explaining that 

“limited discovery” and motions practice may be appropriate under § 4). In order to 

resolve these appeals, we do not delineate the pretrial procedures to which a court should 

adhere. Those procedures are reserved to the able lawyers for the parties and the sound 

discretion of our distinguished colleague on the district court.

IV.

Pursuant to the foregoing, we vacate the Denial Order and remand for such other 

and further proceedings as may be appropriate.

VACATED AND REMANDED