Arbitration clauses and identity thiefs

Jeff Sovern at CL&P blog poses the interesting question of what happens if an identity thief signs an arbitration agreement. Is the consumer bound to arbitrate the case even though he or she never signed the agreement? The intuitive answer is obviously not.

However, who decides whether the consumer actually signed the agreement or not? The arbitrator? The court? A jury? At least two courts have decided that where it appears the consumer probably did not sign the contract, the consumer can litigate the case in court. However, the U.S. Supreme Court has also decided–on slightly different facts–that the arbitrator decides whether the contract is enforceable as a whole, including the arbitration clause.

This means a victim of identity theft seeking to challenge, say, a credit card agreement the identity thief used to rack up debt, may have to go through arbitration first before he or she can get a hearing in court. Sovern suggests this case may have been wrongly decided.