Kass v. PayPal Inc., No. 22-2575 (7th Cir. 2023)
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PayPal users can transfer money to businesses and people; they can donate to charities through the Giving Fund, its 501(c)(3) charitable organization. Kass created a PayPal account and accepted PayPal’s 2004 User Agreement, including a non-mandatory arbitration clause and allowing PayPal to amend the Agreement at any time by posting the amended terms on its website. In 2012 PayPal amended the Agreement, adding a mandatory arbitration provision. Users could opt out until December 2012. In 2016, PayPal sent emails to Kass encouraging her to make year-end donations. Kass donated $3,250 to 13 charities through the Giving Fund website. Kass alleges she later learned that only three of those charities actually received her gifts; none knew that Kass had made the donations. Kass claims that, although Giving Fund created profile pages for these charities, it would transfer donated funds only to charities that created a PayPal “business” account; otherwise PayPal would “redistribute” the funds to similar charities.
Kass and a charity to which she had donated filed a purported class action. The district court granted a motion to compel arbitration, then affirmed the arbitrator’s decision in favor of the defendants. The Seventh Circuit vacated. In concluding that Kass had consented to the amended Agreement, the district court erred by deciding a disputed issue of fact that must be decided by a trier of fact: whether Kass received notice of the amended Agreement and implicitly agreed to the new arbitration clause.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2575 TERRY KASS, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. PAYPAL INC., a Delaware corporation, and PAYPAL CHARITABLE GIVING FUND, a Delaware nonprofit corporation, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-01542 — Martha M. Pacold, Judge. ____________________ ARGUED MAY 31, 2023 — DECIDED JULY 27, 2023 ____________________ Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges. HAMILTON, Circuit Judge. The issue in this appeal is whether plainti Terry Kass agreed to mandatory arbitration of any disputes she would have with defendant PayPal Inc. When Kass created a PayPal account, she consented to PayPal’s then-current User Agreement, which did not require 2 No. 22-2575 arbitration of disputes. PayPal later amended its standard agreement to add a mandatory arbitration clause. A few years after that amendment, Kass found that PayPal had mishandled charitable donations she had made through PayPal, so she joined with several charities in ling a class action lawsuit against PayPal and its charitable arm, PayPal Charitable Giving Fund. Defendants moved to compel arbitration, arguing that Kass and the charity plainti s were all bound by the mandatory arbitration clause in the later User Agreement. The district court (Judge Gettleman) granted the motion in June 2018. Friends for Health v. PayPal, Inc., No. 17 CV 1542, 2018 WL 2933608, at *7 (N.D. Ill. June 12, 2018). The case went to arbitration, where defendants prevailed. In 2022, the district court (Judge Pacold) ultimately a rmed the arbitrator’s decision in favor of defendants. Friends for Health v. PayPal, Inc., No. 17 CV 1542, 2022 WL 2799395, at *1 (N.D. Ill. July 14, 2022). Kass has appealed, and the principal issue is whether she could be compelled to arbitrate in the rst place. Relying on the “mailbox rule,” which creates a rebuttable presumption that a properly sent communication has been received, the district court concluded that Kass had consented to the amended User Agreement, including its mandatory arbitration provision. Friends for Health, 2018 WL 2933608, at *6. In nding consent, however, the district court erred by deciding a disputed issue of fact that must be decided by a trier of fact: whether Kass received notice of the amended User Agreement and implicitly agreed to the new arbitration clause. We vacate the district court’s judgment against Kass and remand for a trial on that question. No. 22-2575 3 I. Factual Background A. PayPal’s 2004 and 2012 User Agreements PayPal is one of the largest online payment processors in the world. Through PayPal, users can transfer money and make payments to businesses and other people. Users can also donate to charities through the PayPal Charitable Giving Fund, a 501(c)(3) charitable organization. In 2004, Terry Kass created a PayPal account. As anyone creating a PayPal account must, Kass accepted PayPal’s thenexisting User Agreement. That 2004 User Agreement included an arbitration clause that was not mandatory. The 2004 User Agreement also allowed PayPal to amend the Agreement at any time by posting the amended terms on the PayPal website. The Agreement further provided that the Agreement “and any other agreements, notices or other communications regarding your account and/or your use of [PayPal] … may be provided to you electronically,” either “posted on the pages within the PayPal website and/or delivered to your email address.” In October 2012 PayPal amended the User Agreement to add a mandatory arbitration provision. Users could, however, opt out of the arbitration clause if they did so before December 1, 2012. The dispute at the heart of this appeal centers on whether Kass received and implicitly agreed to that amended User Agreement with its arbitration clause. B. Kass’s Charitable Donations Through PayPal Charitable Giving Fund In November 2016, PayPal sent emails to Kass encouraging her to make year-end donations to charities through the Giving Fund. Following a link in those emails, Kass found 4 No. 22-2575 pro les on the Giving Fund website for thirteen charities to which she wished to donate. Each pro le page provided the charity’s name and mission statement and promised that 100% of the funds donated would be delivered to the charity. Before year’s end, Kass donated a total of $3,250 to those thirteen charities through the Giving Fund website. 1 According to the complaint, Kass later learned that only three of those thirteen charities actually received her gifts, and of those three, none knew that Kass had made the donations. Kass tells us that, although the Giving Fund had created pro le pages for these charities on its website, PayPal and the Giving Fund would transfer donated funds only to charities that acted to register with both PayPal and the Giving Fund and created a PayPal “business” account. If unregistered charities did not register and claim donations made to them through the Giving Fund within six months, PayPal would “redistribute the[ ] funds to similar charities.” 2 II. Procedural History In February 2017, Kass and one of the charities to which she had donated, Friends For Health: Supporting the North Shore Health Center, led this suit on behalf of themselves and similarly situated donors and charities against PayPal and PayPal Charitable Giving Fund. Federal jurisdiction was available under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Kass, then represented by counsel, brought 1 PayPal later told Kass in an email that it had “added 1%” to her do- nations. 2 According to Kass, the charities she tried to support through the Giv- ing Fund in December 2016 still cannot confirm in 2023 that they actually received donations from her. No. 22-2575 5 claims for unjust enrichment, an accounting, and violations of the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. Defendants moved to compel arbitration, asserting that both Kass and the charity plainti s had consented to the arbitration provision included in the 2012 amendment to the User Agreement. The mandatory arbitration provision, defendants argued, was included in the User Agreements that the charity plainti s had accepted when they created their PayPal accounts. The district court agreed and ordered the charities’ claims to be arbitrated. That conclusion is not challenged in this appeal. The issue was less clear-cut with plainti Kass. The mandatory arbitration provision had not been in the earlier User Agreement Kass accepted when she created her PayPal account in 2004. Defendants argued, though, that Kass was bound by the provision because PayPal had posted the amended Agreement to its website and had emailed notice of the amended Agreement “to active PayPal users, such as Ms. Kass, in October 2012.” In support, defendants o ered sworn declarations from two members of PayPal’s legal department: Michelle Squires, a paralegal specialist, and Andrew McElmeel, an attorney. Squires said: “When PayPal amends the PayPal User Agreement, it posts a summary of signi cant changes that are being made to the User Agreement or even the amended terms themselves on its website as a ‘Policy Update,’” and “[i]n some instances … also sends an email to its users notifying them that changes will be made.” Squires also said that, in October 2012, a “Policy Update containing information about the addition of the Agreement to Arbitrate to the User 6 No. 22-2575 Agreement was posted on PayPal’s website and contained the full text of the Agreement.” Squires further said that a “Notice about the Policy Update was also e-mailed to active PayPal users in October 2012” and that “PayPal’s records indicate that” Kass’s account, which was created in 2004, “remain[ed] open” as of January 2018. McElmeel echoed this in his declaration: “Consistent with [PayPal’s] practice of sending email notice to existing PayPal users of amendments to the User Agreement prior to those amendments going into e ect, PayPal sent” the Policy Update email “in October 2012 to all of its existing U.S. customers who, as of late September 2012, had a PayPal account that was not subject to an inde nite account limitation.” McElmeel further said that because Kass’s PayPal “account was open and not subject to an inde nite account limitation at or around the time” the Policy Update email was sent, “she would have been within the group of U.S. PayPal account holders to whom” the email was sent. (Emphasis added.) PayPal does not have a more speci c record of sending that email notice to Kass or whether it was received, bounced back, or disappeared into cyberspace. Kass denied that she had ever received or known of the 2012 amendment to the User Agreement. By sworn declaration, Kass testi ed that she had never seen the amended User Agreement posted to PayPal’s website, that she did not receive an email notifying her of the amendment, and that she had never seen, known of, or agreed to the 2012 User Agreement with its mandatory arbitration clause. In its 2018 decision, the district court found that the undisputed facts showed that Kass had accepted the terms of the 2012 User Agreement, including the mandatory arbitration No. 22-2575 7 provision, and granted the motion to compel arbitration. Friends for Health, 2018 WL 2933608, at *7. The court determined that Kass’s “assertions” that she had never viewed the Policy Update on PayPal’s website and had not received the email notifying her of the 2012 amendments were insu cient to “create an issue of fact necessitating a trial.” Id. at *5. Focusing on whether PayPal sent and Kass received the purported email noti cation, the court turned to the “mailbox rule.” Id. at *6. Relying on our decisions in Ball v. Kotter, 723 F.3d 813 (7th Cir. 2013), and Tinder v. Pinkerton Security, 305 F.3d 728 (7th Cir. 2002), the court saw the mailbox rule as creating a rebuttable presumption that an email has been “properly sent, received, and read.” Id. “Kass’ conclusory statement that she did not receive the email, with nothing to bolster it,” the court concluded, “does not rebut this presumption.” Id. Disposing of Kass’s alternative arguments that she could not be bound to arbitrate, the court granted defendants’ motion to compel arbitration in June 2018. Id. at *7. 3 By May 2019, the parties had not yet begun arbitration. The district court dismissed the case without prejudice. Kass moved to reinstate the case, to stay it pending arbitration, and to allow Kass’s counsel to withdraw. The court granted those motions. Proceeding without a lawyer, Kass demanded 3 Because Kass has created a triable issue of material fact regarding receipt of PayPal’s email notification, we need not reach her additional contentions: (1) that PayPal’s ability to amend the User Agreement unilaterally is “unconscionable and unenforceable,” (2) that the 2012 User Agreement was “not an amendment at all, but rather a completely new agreement to which [Kass] did not assent,” (3) that Kass did not “knowingly and voluntarily consent to waive” Article III adjudication, and (4) that Kass’s claims against the Giving Fund do not fall within the scope of the 2012 PayPal User Agreement. 8 No. 22-2575 arbitration. In June 2020, an arbitrator ruled in defendants’ favor on all of Kass’s claims, including the claims she had brought in the district court and several she added before the arbitrator. 4 Defendants then moved the district court to con rm the arbitrator’s decision against Kass and to dismiss the charity plainti s’ claims for want of subject-matter jurisdiction. The district court rst found that it lacked subject-matter jurisdiction over the charity plainti s’ claims but retained jurisdiction over Kass’s claims. The court then con rmed the arbitrator’s award in favor of defendants. Friends for Health, 2022 WL 2799395, at *1. Kass has appealed; the charities have not. Kass challenges the district court’s decision to compel arbitration, its conclusion that it retained subject-matter jurisdiction over her claims, and its decision to a rm the arbitrator’s judgment. We must always ensure that there is subjectmatter jurisdiction, whether or not the parties challenge jurisdiction. E.g., Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461 (7th Cir. 2020), citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). We address rst whether the district court properly retained subject-matter jurisdiction over Kass’s claims. We conclude that it did. We then turn to whether Kass was properly compelled to arbitrate her claims. We conclude that she was not. Whether she was subject to mandatory arbitration under the 2012 User Agreement depends on whether Kass received an email from PayPal notifying her of that amendment. This is a question of fact that must be resolved by a trier of fact, not summarily by the court considering only 4 Kass’s additional claims included breach of contract, breach of fiduciary duty, consumer fraud under Illinois law, conversion, fraud, fraudulent conveyance, intentional and tortious interference, and unfair business practices. No. 22-2575 9 the paper record. Because we remand for a trial on that factual dispute, we do not reach Kass’s challenge to the district court’s decision to a rm the arbitrator’s judgment. 5 III. Subject-Matter Jurisdiction In a July 2022 order, the district court (Judge Pacold) found that it did not have subject-matter jurisdiction over the charity plainti s’ claims but that it retained jurisdiction over Kass’s claims. The district court found that it lacked subject-matter jurisdiction over the claims of the charity plainti s on the theory that the arbitration provisions rendered CAFA jurisdiction frivolous. The district court took a di erent path with Kass, concluding that it had jurisdiction over her claims because “Kass denied that she had ever agreed to individual arbitration and, even if she had, she believed that the arbitration agreement was unenforceable.” For this reason, the court concluded, Kass’s invocation of subject-matter jurisdiction under CAFA was not frivolous. We agree with the conclusion about jurisdiction over Kass’s claims but not the rationale. The fact (or allegation) that the parties agreed to arbitrate their disagreements does not a ect subject-matter jurisdiction. Nor does subject-matter jurisdiction depend on the strength of arguments for and against arbitrability or a party’s subjective belief that she should be able to defeat the motion to compel arbitration. 5 Appellate jurisdiction is proper under 28 U.S.C. § 1291. The district court issued two separate judgments on the same day in 2022, one dismissing the charities’ claims and the other Kass’s claims. The two judgments add up to one final judgment that disposed of the entire case before the district court. 10 No. 22-2575 Arbitration o ers at most an a rmative defense. It may be waived by failing to assert it. Fed. R. Civ. P. 8(c)(1); see, e.g., Brickstructures, Inc. v. Coaster Dynamix, Inc., 952 F.3d 887, 888 (7th Cir. 2020) (defendant waived right to compel arbitration); Smith v. GC Servs. Ltd. P’ship, 907 F.3d 495, 497 (7th Cir. 2018) (same); Mautz & Oren, Inc. v. Teamsters, Chau eurs, & Helpers Union, Local No. 279, 882 F.2d 1117, 1126 (7th Cir. 1989) (party may waive arbitrability by failing to move “to compel arbitration” or to seek “a stay of the litigation pending arbitration” but raising arbitrability as a rmative defense is su cient). In her complaint, Kass could establish CAFA jurisdiction without being required to anticipate that defendants would raise arbitration as an a rmative defense. A plainti “need not anticipate or refute potential a rmative defenses.” Luna Vanegas v. Signet Builders, Inc., 46 F.4th 636, 640 (7th Cir. 2022); accord, Gomez v. Toledo, 446 U.S. 635, 640 (1980) (plainti need not anticipate a rmative defense and plead around it in complaint). As is true of most a rmative defenses, and certainly those that are waivable, an a rmative defense of arbitrability does not defeat subject-matter jurisdiction. See Automobile Mechanics Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 743 (7th Cir. 2007) (“Enforcement of a forum selection clause (including an arbitration clause) is not jurisdictional; it is a waivable defense that [defendant], in fact, waived.”); Leavell v. Kie er, 189 F.3d 492, 494–95 (7th Cir. 1999) (a rmative defense of statute of limitations does not a ect jurisdiction, and complaint need not anticipate such defense); International Union of Operating Engineers, Local 150 v. Rabine, 161 F.3d 427, 431 (7th Cir. 1998) (availability of defense to arbitration did not defeat jurisdiction over action to enforce arbitral award); see generally, e.g., Jogi v. Voges, 480 F.3d 822, 825–26 (7th Cir. 2007) (absence of valid cause of action does No. 22-2575 11 not a ect subject-matter jurisdiction), citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998); cf. Pratt Central Park Ltd. P’ship v. Dames & Moore, Inc., 60 F.3d 350, 353 (7th Cir. 1995) (a rming dismissal for lack of jurisdiction where contract contained valid limitation-of-liability clause that would keep damages below limit for diversity jurisdiction). The district court thus properly retained subject-matter jurisdiction over Kass’s claims. We turn to whether she was properly compelled to arbitrate them. 6 IV. Analysis A. Standard of Review and the Mailbox Rule On appeal from a district court’s ruling on a motion to compel arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., we review ndings of fact for clear error and rulings on questions of law de novo. A.D. v. Credit One Bank, N.A., 885 F.3d 1054, 1059 (7th Cir. 2018). Under the terms of the Federal Arbitration Act, plainti could not appeal the district court’s decision to compel arbitration in 2018. She had to go through the arbitration and await a nal judgment approving the arbitrator’s award before she could challenge the original order compelling arbitration. See 9 U.S.C. § 16(b). To compel arbitration, a party must show (1) an agreement to arbitrate, (2) a dispute within the scope of the arbitration agreement, and (3) a refusal by the opposing party to proceed to arbitration. Druco Rests., Inc. v. Steak N Shake Enters., Inc., 765 F.3d 776, 781 (7th Cir. 2014), quoting Zurich American Ins. Co. v. Watts Industries, Inc., 466 F.3d 577, 580 (7th Cir. 2006). 6 The charity plaintiffs have not appealed, though the principles in the text above would also seem to apply to jurisdiction over their claims. 12 No. 22-2575 Because “arbitration agreements are contracts, a ‘party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” A.D., 885 F.3d at 1060, quoting Scheurer v. Fromm Family Foods LLC, 863 F.3d 748, 752 (7th Cir. 2017) (internal quotation marks omitted); see also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The key issue in this case centers on the rst element—whether there was an agreement to arbitrate. Where “the making of the agreement for arbitration … is not in issue,” the court shall order “the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4. But if the party opposing arbitration identi es a genuine dispute of material fact regarding whether the parties agreed to arbitrate in the rst place, there must be a trial on that issue. 9 U.S.C. § 4 (“If the making of the arbitration agreement … be in issue, the court shall proceed summarily to the trial thereof.”); Tinder v. Pinkerton Security, 305 F.3d 728, 735 (7th Cir. 2002). When a trial court has decided the issue of arbitrability without a trial, as with summary judgment motions, we view the evidence and draw all reasonable inferences in favor of the party opposing arbitration. Id. at 735. “When deciding whether the parties agreed to arbitrate a certain matter, courts generally should apply ordinary statelaw principles that govern the formation of contracts.” Druco, 765 F.3d at 781. The parties have relied on Illinois law here, and we do the same. See Faulkenberg v. CB Tax Franchise Systems, LP, 637 F.3d 801, 809 (7th Cir. 2011) (in absence of dispute over choice of law, courts apply law of forum state to decide whether parties agreed to submit disputes to arbitration). No. 22-2575 13 The Appellate Court of Illinois laid out applicable law in a rming a decision not to compel arbitration in Arbogast v. Chicago Cubs Baseball Club, LLC, 194 N.E.3d 534 (Ill. App. 2021). The court summarized: The existence of a contract, its terms, and the parties’ intent are questions of fact to be determined by a trier of fact. Pepper Construction Co. v. Palmolive Tower Condominiums, LLC, 2016 IL App (1st) 142754, ¶ 81, 405 Ill. Dec. 748, 59 N.E.3d 41. Only when no factual dispute exists does the issue of a contract’s existence become a question of law for the court. Hany v. General Electric Co., 221 Ill. App. 3d 390, 397, 163 Ill. Dec. 790, 581 N.E.2d 1213 (1991). * * * For a transaction to constitute a contract, the basic requirements are the existence of an o er, acceptance, and consideration. Melena v. Anheuser-Busch, Inc., 219 Ill. 2d 135, 151, 301 Ill. Dec. 440, 847 N.E.2d 99 (2006). For a contract to be enforceable, there must also be mutual assent as to the contract’s terms. Urban Sites of Chicago, LLC v. Crown Castle USA, 2012 IL App (1st) 111880, ¶ 51, 365 Ill. Dec. 876, 979 N.E.2d 480 (citing Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 30, 161 Ill. Dec. 335, 578 N.E.2d 981 (1991)). “‘An o er is an expression by one party of his assent to certain de nite terms, provided that the other party involved in the bargaining transaction will likewise express his assent to the identically same terms. An o er looks forward to an agreement—to mutual expression of 14 No. 22-2575 assent.’” Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill. App. 2d 2, 8, 176 N.E.2d 1 (1961) (quoting 1 Arthur L. Corbin, Corbin on Contracts § 11, at 23 (1950)). Whether parties have mutually assented to the terms of a contract is a question of fact. Calo, 31 Ill. App. 2d at 18, 176 N.E.2d 1. Whether mutual assent or an intent to accept exists is determined by an objective standard. McCarty v. Verson Allsteel Press Co., 89 Ill. App. 3d 498, 511, 44 Ill. Dec. 570, 411 N.E.2d 936 (1980). In other words, it is not necessary that the parties share the same subjective understanding as to the contract’s terms, as it su ces if their conduct objectively indicates an agreement to the terms of the purported contract. Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d 306, 313–14, 113 Ill. Dec. 252, 515 N.E.2d 61 (1987). Only the parties’ overt acts and the communications between them may be considered in determining whether and upon what terms they have entered into a contract. Motorola Solutions, Inc. v. Zurich Insurance Co., 2015 IL App (1st) 131529, ¶ 133, 393 Ill. Dec. 173, 33 N.E.3d 917. 194 N.E.3d at 542–43 (whether plainti had agreed to arbitration clause depended on disputed facts). PayPal does not contend that Kass expressly manifested her agreement to the mandatory arbitration clause in the later User Agreement. It contends instead that it retained the right, in e ect, to propose amendments that would take e ect if they were communicated to Kass by email and if she took no No. 22-2575 15 a rmative steps to reject them, such as by cancelling her PayPal account or opting out of the arbitration clause. 7 When the question of objective manifestation of assent turns on whether a communication was received by the party against whom enforcement of a contractual term is sought, the trier of fact may nd help in the “mailbox rule.” The district court relied on our decisions in Ball v. Kotter, 723 F.3d 813 (7th Cir. 2013), and Tinder v. Pinkerton Security, 305 F.3d 728 (7th Cir. 2002), when applying the mailbox rule to the facts here. Friends for Health, 2018 WL 2933608, at *6. Unfortunately, some language in Ball strayed beyond the facts before the court and seems to have misled the district court’s understanding of the mailbox rule in this case. We said in Ball: “A presumption exists that [the communications] were all properly sent, received, and read.” 723 F.3d at 830. Properly received and read, yes, but not “properly sent.” In Ball, the administrators of an estate sued an attorney and real-estate agent who had represented the decedent in property transactions that seemed to be at odds with the decedent’s will. 723 F.3d at 815. Analyzing a claim against the real-estate agent for breach of duciary duty, which hinged in part on whether “the decedent had competent and independent advice” regarding the transactions, we found that the decedent “had a full understanding of all relevant facts” in part because his attorney had sent him multiple letters and emails explaining in detail the nature of the real-estate transactions. Id. at 825, 829–30, citing In re Estate of Long, 726 N.E.2d 187, 7 PayPal has not pursued on appeal a theory that posting the amended User Agreement on its website was sufficient notice to Kass so that her failure to act accepted the arbitration clause. 16 No. 22-2575 191–93 (Ill. App. 2000). The administrators argued, however, that the evidence was insu cient to show that the decedent had received and understood those communications. Id. at 831. We disagreed, both because the decedent’s own communications and “conduct indicate[d] that he [had] received and read them,” and because the mailbox rule created “a presumption … that the emails were received and read.” Id. at 831. There was no a rmative evidence that the letters and emails were not read and understood that would have rebutted that presumption. Id. at 830. That articulation of the Illinois mailbox rule was essentially correct. Where a communication is shown to have been properly sent, Illinois law presumes that it was received. Weisberg v. Handy & Harman, 747 F.2d 416, 421 (7th Cir. 1984) (“Illinois courts employ a presumption that ‘a letter, properly addressed and with proper postage is presumed received by the addressee in due course.’”), quoting Liquorama, Inc. v. American Nat’l Bank & Trust, 408 N.E.2d 373, 375 (Ill. App. 1980); see also Credit Union 1 v. Carrasco, 107 N.E.3d 1021, 1026 (Ill. App. 2018); Tabor & Co. v. Gorenz, 356 N.E.2d 1150, 1154 (Ill. App. 1976). What matters in this case is that the presumption simply is not conclusive. “The presumption is not conclusive and may be rebutted by evidence that the correspondence was not received by the addressee.” First Nat’l Bank of Antioch v. Guerra Constr. Co., 505 N.E.2d 1373, 1376 (Ill. App. 1987). Under Illinois law, if the addressee denies receiving the communication, the presumption is rebutted. Whether the communication was received “becomes a question of fact to be decided by the trier of fact.” Liquorama, 408 N.E.2d at 375; see also Talmage v. Union Cent. Life Ins. Co., 43 N.E.2d 575, 582 (Ill. App. No. 22-2575 17 1942) (evidence of proper mailing and denial of receipt posed question for trier of fact). Unfortunately, in an earlier passage in Ball, we added one verb that stretched the mailbox rule beyond its recognized scope. We wrote that a “presumption exists that” a communication was “properly sent, received, and read.” 723 F.3d at 830, citing Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000) (emphasis added). The district court here relied on this language in Ball, but neither Kennell nor any Illinois case supports a presumption that a communication was “properly sent.” See Kennell, 215 F.3d at 829 (“A jury generally is permitted to infer that information sent via a reliable means … was received.”); Credit Union 1, 107 N.E.3d at 1026–27 (presumption not triggered where defendant denied receipt by a davit and plainti o ered no “proof that the item was contained in [a] properly addressed envelope with adequate postage a xed and that it was deposited in the mail”), quoting Tabor & Co., 356 N.E.2d at 1154; Liquorama, 408 N.E.2d at 376 (fact that letter was incorrectly addressed barred “use of the presumption, rendering the question of receipt an issue for the trier of fact”). Even the facts in Ball did not support such a presumption of proper dispatch. There was no dispute in Ball that the communications in question were in fact sent, and there was no direct evidence that they were not received, read, and understood. 723 F.3d at 816–18, 830. 8 Presuming that a communication was not only properly received and read but was also properly sent puts the cart 8 The same was true in Tinder, where the relevant communication, a brochure announcing a mandatory arbitration program, was “definitely sent.” 305 F.3d at 736. 18 No. 22-2575 before the horse. Before we may presume receipt, there must be su cient evidence that the communication in question was sent. In resolving a motion to compel arbitration, a court may apply the mailbox rule as a matter of law only where there exists no genuine dispute of material fact that the relevant communication was sent. See Tinder, 305 F.3d at 735, citing 9 U.S.C. § 4. And in any event, if the addressee denies receipt, then the critical issue of whether the communication was in fact received must be decided by a trier of fact. Liquorama, 408 N.E.2d at 375; see also 9 U.S.C. § 4 (noting jury trial may be available to try issue of agreement to arbitrate); Bazemore v. Papa John’s U.S.A., Inc.,— F.4th —, —, 2023 WL 4631540, at *1– 2 (6th Cir. 2023) (reversing order compelling arbitration where plainti denied ever having seen arbitration agreement bearing his electronic signature: “We see no reason whatever that would prevent a reasonable fact nder from believing Bazemore’s testimony—which means that his testimony created a genuine issue of material fact.”). As we explain next, however, the mistaken language in Ball does not a ect the result here. B. Whether Kass Agreed to the 2012 Amendment to the User Agreement Whether the district court properly ordered arbitration of Kass’s claims depends rst on whether the undisputed evidence shows that PayPal sent her notice of the 2012 amendment. PayPal’s evidence says that it “would have” sent Kass an email in October 2012 notifying her of the mandatory arbitration provision because notice of the amended agreement was emailed “to active PayPal users, such as Ms. Kass, in October 2012.” The declarations by Squires and McElmeel support this assertion. No. 22-2575 19 PayPal’s evidence does not establish with certainty that the email noti cation was sent speci cally to Kass, but Illinois courts recognize that the sending of a communication can be shown “by evidence of corroborating circumstances tending to establish the fact that the custom as to [sending] has been followed in a particular case….” Tabor & Co., 356 N.E.2d at 1154; accord, First Nat’l Bank of Antioch, 505 N.E.2d at 1376–77 (plainti showed su cient evidence of mailing with testimony that it followed usual o ce practice in particular case of notice to defendant). Here, the Squires and McElmeel declarations provide the needed evidence about both PayPal’s usual practice in emailing amendments to the User Agreement and the use of that practice with the 2012 amendment. Kass has not o ered evidence contradicting defendants’ evidence tending to show that the email was probably sent to her. Because the only evidence in the record tends to show that PayPal followed its customary noti cation practices when it announced the 2012 User Agreement, the mailbox rule’s presumption is triggered. We therefore presume that the email was received by Kass, but without relying on the overly broad language in Ball about presuming a communication was sent. Under Illinois law, however, even where the presumption is triggered, if the intended recipient denies receipt, that denial rebuts the presumption. Whether the communication was in fact received must then be decided by a trier of fact. E.g., Liquorama, 408 N.E.2d at 375; Talmage, 43 N.E.2d at 582. That is the case here. Kass expressly denies receiving the email. She did not testify only that she did not remember receiving it. She testi ed that she did not receive it. A trier of fact must therefore weigh PayPal’s evidence of custom and practice against Kass’s denial of receipt and determine 20 No. 22-2575 whether Kass should be charged with having received notice of the arbitration amendment. Defendants resist this conclusion. Relying on Tinder, defendants argue that Kass’s “conclusory denial that she saw or received the email is insu cient to create a triable issue.” We disagree. There is nothing conclusory about such a factual denial. See Lindsey v. Bd. of Educ. of City of Chicago, 468 N.E.2d 1019, 1024 (Ill. App. 1984) (di erentiating between a “factual denial” or “factual defense” and a “conclusory” one). When a party denies signing a contract, committing a crime, or doing anything else, the denial is an assertion of fact. And far from being conclusory, such a denial can create a genuine dispute of fact. Accord, Bazemore, — F.4th at —, 2023 WL 4631540, at *2 (applying Kentucky law, reversing order summarily compelling arbitration where plainti testi ed he never saw arbitration agreement). In e ect, PayPal asks us to change Illinois law, to treat the presumption triggered by the mailbox rule as irrebuttable. That is not our role. Where there is such a denial of receipt, Illinois law requires a trial of the factual issue. Tinder did not hold otherwise. The plainti there did not actually deny having received notice of the mandatory arbitration agreement at issue in that case. Rather, her a davit said only that she did “‘not recall seeing or reviewing the Arbitration Program brochure’” that the defendant had shown was “de nitely sent.” 305 F.3d at 735–36 (emphasis added). Because the plainti “asserted only that she [did] not remember receiving or seeing the brochure,” we held that her a davit did “not raise a genuine issue whether the brochure was distributed to her.” Id. at 736 (applying Wisconsin law in way that is consistent with Illinois law); see also Talmage, 43 N.E.2d at 582 No. 22-2575 21 (presumption “not rebutted by testimony that [letter] could not be found” years after sending where “there was no direct denial” of receipt). Because Kass o ered evidence that atly denied that she received the notice from PayPal of the mandatory arbitration clause, Illinois law requires that a trier of fact decide whether she received the notice. The judgment of the district court is VACATED and the case is REMANDED for a trial on that issue and such further proceedings as may be necessary, consistent with this opinion.
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