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Plaintiff’s powerpoint sways Illinois Appellate Court to deny motion to compel arbitration 

9/18/24

By: Donald Patrick Eckler and Sophie Stevanovich

In accordance with the recent decision from the Seventh Circuit in Wallrich v. Samsung Electronics America, Inc., 106 F.4th 609 (7th Cir. 2024), a party seeking to stay proceedings and compel arbitration cannot succeed if it is unable to show that the opposing party assented to the arbitration provision. Such was the holding Gaines v. Ciox Health, LLC, 2024 IL App (5th) 230565 affirming the circuit court’s denial of a motion to compel arbitration. 

Ciox Health, LLC provides an electronic delivery service for medical records. As part of his law practice, Brent Gaines received records through Ciox’s electronic delivery service and was subsequently charged fees by Ciox. Gaines brought suit, claiming that these fees were unlawful. In response, Ciox moved to compel arbitration pursuant to a purported arbitration agreement in the Terms and Conditions of Ciox’s electronic delivery service. Supporting its motion, Ciox provided a declaration from Ciox’s vice president of collections and billing, Jason Martin, who explained that Gaines accepted the Terms and Conditions on Ciox’s electronic delivery portal and detailed the visual appearance of the Terms and Conditions on the portal.

The circuit court denied Ciox’s motion to compel arbitration, noting that Ciox did not sufficiently show that Martin had personal knowledge about Gaines’s particular use of Ciox’s electronic delivery platform. Additionally, the circuit court emphasized that Ciox did not provide internal documents to support its assertions of how Gaines allegedly interacted with the Terms and Conditions on the portal. The court contrasted this with the evidence provided by Gaines, consisting of a PowerPoint presentation, showing that by using the self-registration process, Gaines did not need to view the Terms and Conditions in order to register online for Ciox’s electronic delivery service.  

On appeal, the appellate court affirmed the denial of the motion to compel arbitration. In addressing Ciox’s arguments and evidence, the court noted that Ciox failed to provide any documents that show how a user would interact with the portal via the self-registration process and how the alleged Terms and Conditions would appear on the portal. The court also noted that Martin’s assertions lacked supporting documents that were related specifically to Gaines’s use of Ciox’s electronic delivery portal. Rather, Martin provided an “exemplar,” consisting of a screenshot referencing a different plaintiff, in an attempt to demonstrate how Gaines allegedly viewed and accepted the Terms and Conditions, including the arbitration provision—the court found this evidence insufficient. The court highlighted the fact that the arbitration provision in the Terms and Conditions was not distinguishable from the other provisions and required scrolling in order to view it. On the other hand, like the circuit court, the appellate court favored Gaines’s PowerPoint presentation that demonstrated how one could register for Ciox’s electronic delivery service without ever viewing or agreeing to the Terms and Conditions. 

This case highlights that to have a valid agreement to arbitrate under Illinois contract law, defendants should provide case-specific evidence of how that plaintiff would be able to access, view, and accept the arbitration provision. 

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG attorney.