Terry Kass v. PayPal Inc.

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 plaintiff 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 Pay- Pal’s then-current User Agreement, which did not require

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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 mishan- dled charitable donations she had made through PayPal, so she joined with several charities in filing a class action lawsuit against PayPal and its charitable arm, PayPal Charitable Giv- ing Fund. Defendants moved to compel arbitration, arguing that Kass and the charity plaintiffs were all bound by the man- datory arbitration clause in the later User Agreement. The dis- trict 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 arbi- tration, where defendants prevailed. In 2022, the district court (Judge Pacold) ultimately affirmed 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 first 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 arbitra- tion provision. Friends for Health, 2018 WL 2933608, at *6. In finding 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 Agree- ment 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.

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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 then- existing 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 web- site. 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 e- mail 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 Decem- ber 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 encourag- ing her to make year-end donations to charities through the Giving Fund. Following a link in those emails, Kass found

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profiles on the Giving Fund website for thirteen charities to which she wished to donate. Each profile 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 thir- teen 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- file 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 char- ities 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, filed 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.

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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 plaintiffs had consented to the arbi- tration 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 plaintiffs had accepted when they created their PayPal ac- counts. 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 plaintiff Kass. The man- datory arbitration provision had not been in the earlier User Agreement Kass accepted when she created her PayPal ac- count 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 offered 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 Agree- ment, it posts a summary of significant 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

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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 effect, 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 indefinite account limitation.” McElmeel fur- ther said that because Kass’s PayPal “account was open and not subject to an indefinite 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 specific 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 declara- tion, Kass testified that she had never seen the amended User Agreement posted to PayPal’s website, that she did not re- ceive an email notifying her of the amendment, and that she had never seen, known of, or agreed to the 2012 User Agree- ment with its mandatory arbitration clause. In its 2018 decision, the district court found that the undis- puted facts showed that Kass had accepted the terms of the 2012 User Agreement, including the mandatory arbitration

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provision, and granted the motion to compel arbitration. Friends for Health, 2018 WL 2933608, at *7. The court deter- mined 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 insufficient to “create an issue of fact necessitating a trial.” Id. at *⁵. Fo- cusing on whether PayPal sent and Kass received the pur- ported email notification, 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 cre- ating 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 presump- tion.” 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 unilat- erally 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 “know- ingly 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.

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arbitration. In June 2020, an arbitrator ruled in defendants’ fa- vor 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- firm the arbitrator’s decision against Kass and to dismiss the charity plaintiffs’ claims for want of subject-matter jurisdic- tion. The district court first found that it lacked subject-matter jurisdiction over the charity plaintiffs’ claims but retained ju- risdiction over Kass’s claims. The court then confirmed the ar- bitrator’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 ar- bitration, its conclusion that it retained subject-matter juris- diction over her claims, and its decision to affirm the arbitra- tor’s judgment. We must always ensure that there is subject- matter jurisdiction, whether or not the parties challenge juris- diction. 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 first 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 arbi- tration 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 fidu-

ciary duty, consumer fraud under Illinois law, conversion, fraud, fraudu- lent conveyance, intentional and tortious interference, and unfair business practices.

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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 affirm 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 plaintiffs’ 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 plaintiffs on the the- ory that the arbitration provisions rendered CAFA jurisdic- tion frivolous. The district court took a different path with Kass, concluding that it had jurisdiction over her claims be- cause “Kass denied that she had ever agreed to individual ar- bitration and, even if she had, she believed that the arbitration agreement was unenforceable.” For this reason, the court con- cluded, 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 affect subject-matter jurisdiction. Nor does subject-matter ju- risdiction 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.

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Arbitration offers at most an affirmative 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, Chauffeurs, & Helpers Union, Local No. 279, 882 F.2d 1117, 1126 (7th Cir. 1989) (party may waive arbitrability by failing to move “to compel arbitra- tion” or to seek “a stay of the litigation pending arbitration” but raising arbitrability as affirmative defense is sufficient). In her complaint, Kass could establish CAFA jurisdiction with- out being required to anticipate that defendants would raise arbitration as an affirmative defense. A plaintiff “need not an- ticipate or refute potential affirmative 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) (plaintiff need not an- ticipate affirmative defense and plead around it in complaint). As is true of most affirmative defenses, and certainly those that are waivable, an affirmative defense of arbitrability does not defeat subject-matter jurisdiction. See Automobile Mechan- ics 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. Kieffer, 189 F.3d 492, 494–95 (7th Cir. 1999) (affirmative defense of statute of limitations does not affect ju- risdiction, 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 ar- bitration did not defeat jurisdiction over action to enforce ar- bitral award); see generally, e.g., Jogi v. Voges, 480 F.3d 822, 825–26 (7th Cir. 2007) (absence of valid cause of action does

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not affect subject-matter jurisdiction), citing Steel Co. v. Citi- zens 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) (affirming dismissal for lack of jurisdiction where contract contained valid limitation-of-liability clause that would keep damages below limit for diversity jurisdic- tion). 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 findings of fact for clear error and rul- ings 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, plaintiff could not appeal the dis- trict court’s decision to compel arbitration in 2018. She had to go through the arbitration and await a final judgment approv- ing the arbitrator’s award before she could challenge the orig- inal 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).

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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 first 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 identifies a genuine dispute of material fact regarding whether the parties agreed to arbitrate in the first place, there must be a trial on that issue. 9 U.S.C. § 4 (“If the making of the arbitration agree- ment … 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 ar- bitrability without a trial, as with summary judgment mo- tions, we view the evidence and draw all reasonable infer- ences 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 state- law 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 Sys- tems, LP, 637 F.3d 801, 809 (7th Cir. 2011) (in absence of dis- pute over choice of law, courts apply law of forum state to decide whether parties agreed to submit disputes to arbitra- tion).

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The Appellate Court of Illinois laid out applicable law in affirming 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 deter- mined 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 offer, acceptance, and consideration. Melena v. An- heuser-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 offer is an expression by one party of his assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express his assent to the identically same terms. An offer looks for- ward to an agreement—to mutual expression of

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assent.’” Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill. App. 2d 2, 8, 176 N.E.2d 1 (1961) (quoting 1 Ar- thur L. Corbin, Corbin on Contracts § 11, at 23 (1950)). Whether parties have mutually as- sented 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 ex- ists 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 under- standing as to the contract’s terms, as it suffices if their conduct objectively indicates an agree- ment 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 plaintiff had agreed to arbitra- tion 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 effect, to propose amendments that would take effect if they were communicated to Kass by email and if she took no

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affirmative steps to reject them, such as by cancelling her Pay- Pal 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 find help in the “mailbox rule.” The dis- trict 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 under- standing 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 de- cedent’s will. 723 F.3d at 815. Analyzing a claim against the real-estate agent for breach of fiduciary duty, which hinged in part on whether “the decedent had competent and independ- ent advice” regarding the transactions, we found that the de- cedent “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,

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191–93 (Ill. App. 2000). The administrators argued, however, that the evidence was insufficient to show that the decedent had received and understood those communications. Id. at 831. We disagreed, both because the decedent’s own commu- nications and “conduct indicate[d] that he [had] received and read them,” and because the mailbox rule created “a pre- sumption … that the emails were received and read.” Id. at 831. There was no affirmative evidence that the letters and emails were not read and understood that would have rebut- ted that presumption. Id. at 830. That articulation of the Illinois mailbox rule was essen- tially correct. Where a communication is shown to have been properly sent, Illinois law presumes that it was received. Weis- berg v. Handy & Harman, 747 F.2d 416, 421 (7th Cir. 1984) (“Il- linois courts employ a presumption that ‘a letter, properly ad- dressed and with proper postage is presumed received by the addressee in due course.’”), quoting Liquorama, Inc. v. Ameri- can 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 Illi- nois law, if the addressee denies receiving the communica- tion, the presumption is rebutted. Whether the communica- tion was received “becomes a question of fact to be decided by the trier of fact.” Liquorama, 408 N.E.2d at 375; see also Tal- mage v. Union Cent. Life Ins. Co., 43 N.E.2d 575, 582 (Ill. App.

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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 communi- cation was “properly sent, received, and read.” 723 F.3d at 830, citing Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000) (em- phasis added). The district court here relied on this language in Ball, but neither Kennell nor any Illinois case supports a pre- sumption that a communication was “properly sent.” See Ken- nell, 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 trig- gered where defendant denied receipt by affidavit and plain- tiff offered no “proof that the item was contained in [a] properly addressed envelope with adequate postage affixed 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 let- ter 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 com- munications in question were in fact sent, and there was no direct evidence that they were not received, read, and under- stood. 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

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before the horse. Before we may presume receipt, there must be sufficient 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 plaintiff denied ever having seen arbitration agreement bearing his electronic signature: “We see no reason whatever that would prevent a reasonable factfinder from believing Bazemore’s testimony—which means that his testimony cre- ated a genuine issue of material fact.”). As we explain next, however, the mistaken language in Ball does not affect the re- sult 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 first on whether the undisputed evi- dence shows that PayPal sent her notice of the 2012 amend- ment. PayPal’s evidence says that it “would have” sent Kass an email in October 2012 notifying her of the mandatory arbi- tration provision because notice of the amended agreement was emailed “to active PayPal users, such as Ms. Kass, in Oc- tober 2012.” The declarations by Squires and McElmeel sup- port this assertion.

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PayPal’s evidence does not establish with certainty that the email notification was sent specifically 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 (plaintiff showed sufficient evidence of mailing with testi- mony that it followed usual office practice in particular case of notice to defendant). Here, the Squires and McElmeel dec- larations provide the needed evidence about both PayPal’s usual practice in emailing amendments to the User Agree- ment and the use of that practice with the 2012 amendment. Kass has not offered evidence contradicting defendants’ evi- dence 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 notification 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 communi- cation was sent. Under Illinois law, however, even where the presumption is triggered, if the intended recipient denies receipt, that de- nial 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 re- ceiving it. She testified 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

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whether Kass should be charged with having received notice of the arbitration amendment. Defendants resist this conclusion. Relying on Tinder, de- fendants argue that Kass’s “conclusory denial that she saw or received the email is insufficient to create a triable issue.” We disagree. There is nothing conclusory about such a factual de- nial. See Lindsey v. Bd. of Educ. of City of Chicago, 468 N.E.2d 1019, 1024 (Ill. App. 1984) (differentiating 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 com- pelling arbitration where plaintiff testified he never saw arbi- tration agreement). In effect, 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 plaintiff there did not actually deny hav- ing received notice of the mandatory arbitration agreement at issue in that case. Rather, her affidavit said only that she did “‘not recall seeing or reviewing the Arbitration Program bro- chure’” that the defendant had shown was “definitely sent.” 305 F.3d at 735–36 (emphasis added). Because the plaintiff “asserted only that she [did] not remember receiving or see- ing the brochure,” we held that her affidavit 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 offered evidence that flatly 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 is- sue and such further proceedings as may be necessary, con- sistent with this opinion.

Footnotes

[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 dis- missing the charities’ claims and the other Kass’s claims. The two judg- ments add up to one final judgment that disposed of the entire case before the district court.

[6] The charity plaintiffs have not appealed, though the principles in the text above would also seem to apply to jurisdiction over their claims.

[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.

[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.