Lukis v. Whitepages Incorporated

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEPHANIE LUKIS, MANTAS NORVAISAS, and )

SHAWN BROWN, individually and on behalf of all )

others similarly situated, ) 19 C 4871

)

Plaintiffs, ) Judge Gary Feinerman

)

vs. )

)

WHITEPAGES INCORPORATED, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Stephanie Lukis brought this putative class action against Whitepages Inc. in the Circuit

Court of Cook County, alleging violations of the Illinois Right of Publicity Act (“IRPA”), 765

ILCS 1075/1 et seq. Doc. 1-1. Whitepages removed the suit under the Class Action Fairness

Act (“CAFA”), 28 U.S.C. § 1332(d). Doc. 1. Last year, the court denied Whitepages’s motion

to dismiss for failure to state a claim and lack of personal jurisdiction, Docs. 36-37 (reported at

454 F. Supp. 3d 746 (N.D. Ill. 2020)), and later denied its motions for reconsideration, leave to

appeal, and summary judgment, Docs. 87-88 (reported at 2020 WL 6287369 (N.D. Ill. Oct. 27,

2020)). Earlier this year, the court denied Whitepages’s motion to compel arbitration of or

transfer Lukis’s claim and granted Lukis’s motion to amend the complaint to add two new

plaintiffs, Mantas Norvaisas and Shawn Brown. Docs. 174-175 (reported at __ F. Supp. 3d __,

2021 WL 1600194 (N.D. Ill. Apr. 23, 2021)). Following that ruling, Plaintiffs filed an amended

complaint joining Norvaisas and Brown, Doc. 176, and Whitepages invoked § 16(a)(1) of the

Federal Arbitration Act (“FAA”), 9 U.S.C. § 16(a)(1), to appeal the denial of its motion to

arbitrate Lukis’s claim, Doc. 181. See Lukis v. Whitepages Inc., No. 21-1798 (7th Cir.).

Several motions are before the court. First, Whitepages moves to dismiss all Plaintiffs’

claims under Civil Rule 12(b)(1) for lack of standing. Doc. 182. Second, Whitepages moves to

dismiss the claims of Norvaisas and Brown under Rule 12(b)(2) for lack of personal jurisdiction.

Ibid. Third, Whitepages moves to dismiss the claims of Norvaisas and Brown based on an

arbitration provision in its Terms of Use or to transfer those claims to the Western District of

Washington under 28 U.S.C. § 1404(a) based on a forum selection clause in the Terms. Ibid.

Finally, Whitepages moves to stay the litigation entirely pending its appeal or, in the alternative,

to stay the litigation as to Lukis and limit proceedings on the claims of Norvaisas and Brown to

the issue of whether they agreed to arbitrate their claims. Doc. 184. Whitepages moved for a

protective order pending the outcome of those motions, Doc. 189, which the court granted in

part, limiting discovery (other than certain merits discovery ordered weeks earlier) to

arbitrability issues. Doc. 193 (reported at 2021 WL 2012238 (N.D. Ill. May 20, 2021)).

Whitepages’s motion to stay the litigation is granted as to Lukis but denied as to

Norvaisas and Brown, though discovery will remain limited to arbitrability issues. Whitepages’s

motions to dismiss based on standing and personal jurisdiction are denied. The court defers

ruling on Whitepages’s motion to compel arbitration of or transfer the claims of Norvaisas and

Brown pending further proceedings on whether they agreed to Whitepages’s Terms of Use, and

thus to the arbitration provision and forum selection clause.

Background

The court assumes familiarity with its prior opinions and reviews the general factual

background, which for purposes of the pending motions is undisputed, only briefly. Whitepages

operates a website that sells background reports on people. Doc. 76 at ¶¶ 1, 6. Searching the

website for a person’s name reveals free information tied to that name. Id. at ¶ 4. Whitepages

offers more detailed reports for a fee, which it promotes by inviting users to purchase them when

viewing a free preview. Id. at ¶ 5; Doc. 80 at ¶¶ 20, 29. The complaint alleges that Whitepages

violated the IRPA by using Plaintiffs’ identities to promote the sale of its paid reports. Doc. 176

at ¶¶ 52-58; see 765 ILCS 1075/30(a) (“A person may not use an individual’s identity for

commercial purposes during the individual’s lifetime without having obtained previous written

consent … .”); id. § 1075/5 (defining “commercial purpose” to include “advertising or promoting

products, merchandise, goods, or services”). The court will review additional relevant facts as

needed in the discussion that follows.

Discussion

I. Motion to Stay

The court begins with Whitepages’s motion to stay, as that motion implicates the court’s

ability to address the other pending motions. As noted, Whitepages moves to stay this litigation

in its entirety based on its appeal of decision denying arbitration of Lukis’s claim, or, in the

alternative, to stay Lukis’s claim and limit proceedings on the claims of Norvaisas and Brown to

the question whether they agreed to arbitrate their claims. Doc. 184 at 1; Doc. 185 at 6, 8.

The motion is granted as to Lukis’s claim. A notice of appeal under § 16(a) of the FAA

“divests the district court of the power to proceed with the aspects of the case that have been

transferred to the court of appeals.” Bradford-Scott Data Corp. v. Physician Computer Network,

Inc., 128 F.3d 504, 506 (7th Cir. 1997). There is an exception to this rule: “Either the court of

appeals or the district court may declare that the appeal is frivolous, and if it is the district court

may carry on with the case.” Ibid. Lukis opposes a stay of her claim, arguing that Whitepages’s

appeal is frivolous. Doc. 199 at 1-2.

In the sanctions context, and so in this context as well, “[a]n appeal is frivolous ‘when the

result is obvious or when the appellant’s argument is wholly without merit.’” BLET GCA UP v.

Union Pac. R.R. Co., 988 F.3d 409, 414 (7th Cir. 2021) (quoting Arnold v. Villarreal, 853 F.3d

384, 389 (7th Cir. 2017)). Although the court believes that it correctly denied Whitepages’s

motion to compel arbitration of Lukis’s claim, it hesitates to say that the result was “obvious” or

that Whitepages’s views were “wholly without merit.” Specifically, while it was

straightforwardly plain that Whitepages waived its right to arbitrate Lukis’s claim through its

lengthy and unjustified delay in moving to compel arbitration, the threshold question—whether

the parties may or did delegate to the arbitrator the issue of waiver through litigation conduct—

was complex, even if the answer was ultimately clear under the FAA and relevant precedents.

2021 WL 1600194, at *3-6. Lukis’s claim is therefore stayed pending Whitepages’s appeal, and

the rest of this opinion addresses only the claims of Norvaisas and Brown.

Norvaisas’s and Brown’s claims will move forward in this court. There is no question

that their claims remain properly within this court’s jurisdiction, as the claims do not fall within

the “aspects of the case involved in [Whitepages’s] appeal.” Griggs v. Provident Consumer

Disc. Co., 459 U.S. 56, 58 (1982); cf. Wis. Mut. Ins. Co. v. United States, 441 F.3d 502, 505 (7th

Cir. 2006) (holding that, in a case where multiple litigants intend to file notices of appeal, the

filing of an appeal by one litigant does not divest the district court of jurisdiction over the claims

involving the other litigants). Analogously, when a district court enters partial final judgment as

to one party under Rule 54(b) and an appeal is taken, there is no question that proceedings

continue as to the remaining parties before the district court. See Doe v. City of Chicago, 360

F.3d 667, 673 (7th Cir. 2004) (“[W]henever there are multiple parties, an order that finally

resolves a party’s liability is eligible to be made final, and therefore appealable, under Rule

54(b), though the case continues in the district court between the other parties.”).

In seeking a stay of Norvaisas’s and Brown’s claims, Whitepages argues that a stay

would be more efficient because all three Plaintiffs ultimately intend to move together for class

certification. Doc. 185 at 7-8; see Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power

to stay proceedings is incidental to the power inherent in every court to control the disposition of

the causes on its docket with economy of time and effort for itself, for counsel, and for

litigants.”). This argument falters because, as explained below, arbitrability issues concerning

the claims of Norvaisas and Brown must be addressed through further proceedings. So the

quickest route to “simplify the issues in question and streamline the trial,” In re Groupon

Derivative Litig., 882 F. Supp. 2d 1043, 1045 (N.D. Ill. 2012), is to work toward resolving those

arbitrability issues while Whitepages’s appeal pends before the Seventh Circuit.

That said, and by the same token, the court grants Whitepages’s request to limit the

proceedings to matters concerning arbitrability, absent further court order or the parties’

agreement. Indeed, the court already limited discovery on the claims of Norvaisas and Brown in

that manner. 2021 WL 2012238, at *2. That limit will remain in place.

II. Standing

A federal court has subject matter jurisdiction over a claim only if the plaintiff has Article

III standing to bring it. See MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 935

F.3d 573, 581 (7th Cir. 2019). “[T]he ‘irreducible constitutional minimum’ of standing consists

of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation

omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “To establish injury in

fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that

is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at

1548 (quoting Lujan, 504 U.S. at 560).

A challenge to standing “can take the form of a facial or a factual attack on the plaintiff’s

allegations.” Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020) (citing

Apex Dig., Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009)). Whitepages

mounts only a facial attack on the claims of Norvaisas and Brown, arguing that they “have failed

to plead a concrete injury to establish Article III standing.” Doc. 183 at 12. Whitepages thus

“tests whether the [complaint’s] allegations, taken as true, support an inference that the elements

of standing exist.” Bazile, 983 F.3d at 279.

In evaluating a facial attack on standing, the court must “accept all well-pleaded factual

allegations as true and draw all reasonable inferences in favor of the plaintiff.” Prairie Rivers

Network v. Dynegy Midwest Generation, LLC, __ F.4th __, 2021 WL 2644219, at *2 (7th Cir.

June 28, 2021). Norvaisas and Brown allege that they discovered that Whitepages used their

identities in advertisements, that they never provided consent for Whitepages to do so, that this

use caused them emotional distress, and that they do not want Whitepages to use their identities

for any commercial purpose. Doc. 176 at ¶¶ 30, 32, 34, 36, 37, 39, 41, 43. Whitepages argues

that those alleged injuries “are, at best, abstract and constitute nothing more than … technical

statutory violations.” Doc. 183 at 12.

To be concrete, the plaintiff’s injury “must be de facto; that is, it must actually exist,”

meaning that it must be “real, and not abstract.” Spokeo, 136 S. Ct. at 1548 (internal quotation

marks omitted). Both “tangible” and “intangible” injuries, even those that are “difficult to prove

or measure,” can be concrete. Id. at 1549. An “intangible harm” constitutes an injury in fact if it

“has a close relationship to a harm that has traditional been regarded as providing a basis for a

lawsuit in English or American courts.” Ibid.; see also ibid. (stating that “the law has long

permitted recovery by certain tort victims even if their harms may be difficult to prove or

measure”). That historical inquiry “asks whether plaintiffs have identified a close historical or

common-law analogue for their asserted injury.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

__ (2021). For example, in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020)

(Barrett, J.), the Seventh Circuit held that “unwanted text messages can constitute a concrete

injury-in-fact” because “[t]he common law has long recognized actions at law against defendants

who invaded the private solitude of another by committing the tort of ‘intrusion upon

seclusion.’” Id. at 462-63 (citing Restatement (Second) of Torts § 652B (ALI 1977)).

Violations of the IRPA are an easy case under the governing test. The common law

recognized a “right of publicity,” also called the “appropriation of likeness” tort. Douglass v.

Hustler Mag., Inc., 769 F.2d 1128, 1138 (7th Cir. 1985) (referring to “the commercial-

appropriation branch of the right of privacy—what is sometimes called the ‘right of publicity,’”

meaning “the right to prevent others from using one’s name or picture for commercial purposes

without consent”); see also Restatement (Second) of Torts § 652C (ALI 1977) (“One who

appropriates to his own use or benefit the name or likeness of another is subject to liability to the

other for invasion of his privacy.”). The IRPA codified that common law tort, providing that

“[t]he right to control and to choose whether and how to use an individual’s identity for

commercial purposes is recognized as each individual’s right of publicity,” 765 ILCS 1075/10,

and that “[t]he rights and remedies provided for in this Act are meant to supplant those available

under the common law,” id. § 1075/60. Indeed, when introducing the IRPA in the Illinois

General Assembly, its sponsor stated: “[W]hat this legislation does is it codifies the common law

right of publicity in Illinois.” H.R. Journal, 90th Gen. Assemb., Reg. Sess. 224, 225 (Ill. Apr. 24,

1997). Given this backdrop, the Seventh Circuit and the Appellate Court of Illinois

unsurprisingly have recognized the continuity between the common law and the IRPA. See

Dancel v. Groupon, Inc., 949 F.3d 999, 1009 (7th Cir. 2019) (“[T]he IRPA has supplanted the

common law right of publicity.”); Blair v. Nev. Landing P’ship, 859 N.E.2d 1188, 1192 (Ill.

App. 2006) (“To allege a statutory claim of appropriation of likeness under the [IRPA], one must

set forth essentially the same three elements that were required for a common-law claim of

appropriation of likeness.”).

It necessarily follows, under the analysis articulated in Spokeo and recently reiterated in

TransUnion, that an IRPA violation inflicts a concrete injury-in-fact under Article III. This

defeats Whitepages’s facial attack on Norvaisas’s and Brown’s standing. (As noted, Whitepages

removed the suit under CAFA. Doc. 1. The amended complaint invokes CAFA as well,

Doc. 176 at ¶ 3, and its class allegations convey an intent to seek certification of a Rule 23(b)(3)

class with Norvaisas and Brown as lead plaintiffs, id. at ¶¶ 47 (alleging predominance), 49

(alleging superiority).)

III. Personal Jurisdiction

Whitepages next argues that the court lacks personal jurisdiction over Whitepages as to

the claims of Norvaisas and Brown. Doc. 183 at 13. As Whitepages recognizes, the court

rejected a materially identical argument as to Lukis’s claim, 454 F. Supp. 3d at 756-60, and so

Whitepages reasserts the defense “to preserve the issue for appeal,” Doc. 183 at 13 n.6. As

explained in the court’s prior ruling, exercising personal jurisdiction over Whitepages does not

violate due process because “Whitepages purposefully directed its activities towards Illinois;

[Norvaisas’s and Brown’s] alleged injuries arise from its forum-related activities; and exercising

personal jurisdiction over it would not offend traditional notions of fair play and substantial

justice.” 454 F. Supp. 3d at 757. The court adheres to that ruling here.

IV. Arbitration Provision and Forum Selection Clause

Whitepages moves to dismiss or transfer the suit based on certain dispute resolution

provisions set forth in the Terms of Use on its website. Doc. 183 at 13-20. Those provisions

include an arbitration clause, which states in relevant part: “ANY DISPUTE, CLAIM OR

CONTROVERSY BETWEEN YOU AND WHITEPAGES RELATING IN ANY WAY TO

THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SERVICES OR CONTENT

… WILL BE RESOLVED BY BINDING ARBITRATION IF IT CANNOT BE RESOLVED

THROUGH NEGOTIATION … .” Doc. 90-1 at p. 14, § 12.10. The provisions also include a

forum selection clause directing any non-arbitrable “Dispute”—as “Dispute” is defined in the

Terms—to “the courts in the state of Washington, King County, or the United States District

Court for the Western District of Washington.” Ibid.

Before proceeding, the court pauses to consider the appropriate way to understand

Whitepages’s arbitration motion. In denying Whitepages’s motion to compel arbitration of

Lukis’s claim, the court cited Halim v. Great Gatsby’s Auction Gallery, Inc., 516 F.3d 557, 561

(7th Cir. 2008), for the proposition that the motion was properly viewed as a motion to compel

arbitration and stay the judicial proceedings. 2021 WL 1600194, at *1. Whitepages takes issue

with that characterization, arguing that where, as here, the potential arbitration is to take place

outside the judicial district, the district court cannot compel arbitration and instead must dismiss

the suit for improper venue under Rule 12(b)(3). Doc. 183 at 14.

There is precedent to support both positions. In Halim, the Seventh Circuit affirmed an

Illinois district court’s decision to compel arbitration and stay the judicial proceedings, reasoning

that “the proper course of action when a party seeks to invoke an arbitration clause is to stay the

proceedings rather than to dismiss outright.” 516 F.3d at 561. The parties’ arbitration agreement

in Halim directed that the arbitration take place in Georgia, see Halim v. Great Gatsby’s Auction

Gallery, Inc., No. 03 C 8414 (N.D. Ill.), ECF No. 3 at 6 (“[T]he subject agreement … contains a

binding arbitration provision that states that all disputes between Halim and Gatsby must be

resolved through binding arbitration and such arbitration will be held in Atlanta, Georgia.”), so

Halim supports the view that a district court can compel arbitration and stay the case regardless

of the arbitral locale. Other decisions support the contrary view that a Rule 12(b)(3) dismissal is

the appropriate course when the arbitral locale is outside the district. See Faulkenberg v. CB Tax

Franchise Sys., LP, 637 F.3d 801, 808 (7th Cir. 2011) (“[W]e have held that a Rule 12(b)(3)

motion to dismiss for improper venue, rather than a motion to stay or to compel arbitration, is the

proper procedure to use when the arbitration clause requires arbitration outside the confines of

the district court’s district.”); Cont’l Cas. Co. v. Am. Nat. Ins. Co., 417 F.3d 727, 733 (7th Cir.

2005) (“The district court ultimately dismissed this case because the [agreements] required

arbitration in other districts. … [W]e have held that such dismissal properly is requested under

Rule 12(b)(3).”) (citations omitted).

The Supreme Court’s decision in Atlantic Marine Construction Co. v. United States

District Court for the Western District of Texas, 571 U.S. 49 (2013), appears to resolve the

dispute in favor of Halim and against Faulkenberg and Continental Casualty. A key premise of

Faulkenberg was that “a motion to dismiss based on a contractual arbitration clause is

appropriately ‘conceptualized as an objection to venue, and hence properly raised under Rule

12(b)(3).’” Faulkenberg, 637 F.3d at 807 (quoting Auto. Mechs. Local 701 Welfare & Pension

Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007)). But Atlantic

Marine made clear that only federal venue laws, and not contractual forum selection clauses,

govern whether venue is proper in a particular district: “Section 1406(a) and Rule 12(b)(3) allow

dismissal only when venue is ‘wrong’ or ‘improper.’ Whether venue is ‘wrong’ or ‘improper’

depends exclusively on whether the court in which the case was brought satisfies the

requirements of federal venue laws, and those provisions say nothing about a forum-selection

clause.” 571 U.S. at 55. Atlantic Marine thus casts substantial doubt on decisions, like

Faulkenberg, that are premised on the notion that arbitration and forum selection clauses affect

the propriety of venue and thus fall within the writ of Rule 12(b)(3) and 28 U.S.C. § 1406(a). Cf.

Brickstructures, Inc. v. Coaster Dynamix, Inc., 952 F.3d 887, 890 (7th Cir. 2020) (rejecting a

party’s argument that a motion invoking an arbitration provision must be brought under Rule

12(b)(3), and holding that the “motion to compel arbitration was in substance a motion under § 4

of the FAA,” though the arbitration agreement did not indicate any arbitral locale).

Regardless of how to properly style Whitepages’s arbitration motion, circumstances

make it appropriate to defer resolving the motion. Section 2 of the FAA states, in relevant part:

A written provision in any … contract evidencing a transaction involving

commerce to settle by arbitration a controversy thereafter arising out of such

contract or transaction … shall be valid, irrevocable, and enforceable, save

upon such grounds as exist at law or in equity for the revocation of any

contract.

9 U.S.C. § 2. Section 2 “mandates enforcement of valid, written arbitration agreements,”

Tinder v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002), and “embodies both a liberal federal

policy favoring arbitration and the fundamental principle that arbitration is a matter of contract,”

Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012) (quotation marks omitted).

That said, “because arbitration is a matter of contract, a party cannot be required to submit to

arbitration any dispute which he has not agreed so to submit.” Ibid. (internal quotation marks

omitted). Accordingly, “[u]nder the FAA, arbitration should be compelled if three elements are

present: (1) an enforceable written agreement to arbitrate, (2) a dispute within the scope of the

arbitration agreement, and (3) a refusal to arbitrate.” Scheurer v. Fromm Family Foods LLC,

863 F.3d 748, 752 (7th Cir. 2017).

Courts “evaluate agreements to arbitrate under the same standards as any other contract,”

Tinder, 305 F.3d at 733, which include “all general principles of state law,” Green v. U.S. Cash

Advance Ill., LLC, 724 F.3d 787, 791 (7th Cir. 2013). In particular, “[t]o determine whether a

contract’s arbitration clause applies to a given dispute, federal courts apply state-law principles

of contract formation.” Gore, 666 F.3d at 1032; see also Faulkenberg, 637 F.3d at 809

(“Whether the parties have validly agreed to arbitrate is governed by state-law principles of

contract formation.”). Whitepages argues that Illinois law governs the issue of contract

formation, Doc. 183 at 16, and Norvaisas and Brown do not dispute that assertion, Doc. 198 at 4,

so the court will apply Illinois law.

Whitepages presents two grounds for finding that Norvaisas and Brown assented in a

contractual sense to its Terms of Use and thus to the arbitration provision. The first ground starts

with the fact that in July 2020, Plaintiffs’ counsel—Roberto Costales—purchased a Whitepages

product and clicked through the Terms while researching Lukis’s opposition to Whitepages’s

summary judgment motion. Doc. 131-2 at 13 (12:19-23). At that time, Lukis was the only

plaintiff, and the motion to add Norvaisas and Brown as plaintiffs would not be filed until

months later, in early November 2020. Doc. 97. Whitepages nonetheless argues that Costales’s

actions in July 2020 bound Norvaisas and Brown to the Terms because Costales “was acting as

the agent for his putative class representative clients (including Norvaisas and Brown) when he

agreed to be bound by Whitepages’ Terms.” Doc. 183 at 18. Norvaisas and Brown counter that

they were not clients of Costales in July 2020, Doc. 198 at 2, and Costales avers that he had not

even made their acquaintance at that time, Doc. 198-1 at ¶¶ 2-3.

Norvaisas and Brown have the better of this argument. Before class certification, there is

no class and no class counsel. See Daniels v. Bursey, 430 F.3d 424, 428 (7th Cir. 2005) (“Since

a class was never certified, appellants were not members of a class, and therefore could not be

bound [by a settlement agreement].”); Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609,

616 (7th Cir. 2002) (“[U]ntil certification there is no class action but merely the prospect of one;

the only action is the suit by the named plaintiff[].”). Putative class counsel therefore does not

represent absent members of the putative class or act as their agent. See ABA Formal Op. 07-

445 (2007) (“Before the class has been certified by a court, the lawyer for plaintiff will represent

one or more persons with whom a client-lawyer relationship clearly has been established. As to

persons who are potential members of a class if it is certified, however, no client-lawyer

relationship has been established.”). Any contrary rule would have absurd consequences,

allowing attorneys to ratify contracts on behalf of hundreds, thousands, or even millions of

people just by filing a class action complaint.

In its reply brief, Whitepages substantially shifts gears, arguing that Norvaisas and Brown

impliedly ratified all past actions of Costales when they agreed to become his clients and

putative class representatives. Doc. 207 at 10-11. That argument is doubly forfeited. First, it

appears initially in a reply brief. See O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020) (“[W]e

have repeatedly recognized that district courts are entitled to treat an argument raised for the first

time in a reply brief as waived.”); Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he

district court is entitled to find that an argument raised for the first time in a reply brief is

forfeited.”). Second, Whitepages cites no Illinois authority addressing when a principal is bound

by the past acts of an agent—and, in particular, by acts taken before the agency relationship even

arose—which also forfeits the point. See Williams v. Bd. of Educ. of Chi., 982 F.3d 495, 511

(7th Cir. 2020) (“[P]erfunctory and underdeveloped arguments, and arguments that are

unsupported by pertinent authority, are waived.”).

Whitepages’s second ground for contract formation is that Norvaisas’s and Brown’s own

actions in browsing its website assented to the Terms of Use, and thus to the arbitration

provision, because they “would have navigated to a page that made the Terms available.”

Doc. 183 at 16. The complaint’s allegations plainly suggest that Norvaisas and Brown visited

the Whitepages website. Doc. 176 at ¶¶ 10, 30, 37. And Whitepages presents evidence that the

bottom of every webpage contains a link to the Terms. Doc. 90-1 at ¶ 6.

The question here is whether those facts demonstrate that Norvaisas and Brown assented

to the Terms. “Formation of a contract requires mutual assent in virtually all jurisdictions;

Illinois courts use an objective approach to that question.” Sgouros v. TransUnion Corp., 817

F.3d 1029, 1034 (7th Cir. 2016). The inquiry is an objective one, measured from the perspective

of “a reasonable person in [the consumer’s] shoes.” Id. at 1035. In terminology some courts

have adopted, Whitepages asserts that Norvaisas and Brown entered into “‘browsewrap’

agreements,” which can form when companies “post terms and conditions on a website via a

hyperlink at the bottom of the screen” and a person browses the website. Meyer v. Uber Techs.,

Inc., 868 F.3d 66, 75 (2d Cir. 2017).

Determining whether an internet user has agreed to online terms of service is “a fact-

intensive inquiry.” Sgouros, 817 F.3d at 1034-35. Determining whether a user entered into a

browsewrap agreement is especially fact-dependent: “Because no affirmative action is required

by the website user to agree to the terms of a contract other than his or her use of the website, the

determination of the validity of a browsewrap contract depends on whether the user has actual or

constructive knowledge of a website’s terms and conditions.” Van Tassell v. United Mktg. Grp.,

LLC, 795 F. Supp. 2d 770, 790 (N.D. Ill. 2011). Accordingly, as Whitepages suggests, the

proper course is to allow further factual development via discovery concerning Norvaisas’s and

Brown’s use of and activity on the Whitepages website. Doc. 183 at 18-19; Doc. 207 at 13-14.

Section 4 of the FAA anticipates the possibility of factual disputes as to contract

formation, providing: “If the making of the arbitration agreement … be in issue, the court shall

proceed summarily to the trial thereof.” 9 U.S.C. § 4; see Deputy v. Lehman Bros., 345 F.3d

494, 509-10 (7th Cir. 2003) (“Section 4 … required the court to hold a trial if the making of the

arbitration agreement was in issue.”); Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, __ (9th

Cir. 2021) (“[O]nce a district court concludes that there are genuine disputes of material fact as

to whether the parties formed an arbitration agreement, the court must proceed without delay to a

trial on arbitrability and hold any motion to compel arbitration in abeyance until the factual

issues have been resolved.”). The court therefore will defer ruling on Whitepages’s arbitrability

motion pending further proceedings on whether Norvaisas and Brown entered into an agreement

to arbitrate. See Gupta v. Morgan Stanley Smith Barney, LLC, 2018 WL 2130434, at *3 (N.D.

Ill. May 9, 2018) (adopting this procedural approach).

For the same reasons, a ruling on Whitepages’s alternative request to transfer the claims

of Norvaisas and Brown to the Western District of Washington pursuant to the forum selection

clause would also be premature. The forum selection clause can bind Norvaisas and Brown only

if they ratified the Terms. See Atlantic Marine, 571 U.S. at 62 (“When the parties have agreed to

a valid forum-selection clause, a district court should ordinarily transfer the case to the forum

specified in that clause.”) (emphasis added). Because contract formation remains unresolved, the

question whether the forum selection clause in fact covers Norvaisas’s and Brown’s claims is not

properly before the court.

Granted, in a prior ruling, the court held that Lukis’s IRPA claim is not a “Dispute”

covered by the forum selection clause. 2021 WL 16001944, at *10. Unlike Norvaisas and

Brown, however, Lukis conceded contract formation, so to resolve whether her suit should be

transferred pursuant to the forum selection clause, the court had to determine whether her claim

qualified as a “Dispute” within the meaning of the clause. The present motion does not yet

present that question because contract formation remains unresolved.

Before concluding, it bears mention that today’s result is wholly consistent with the

court’s denial of Whitepages’s motion to compel arbitration of Lukis’s claim without allowing

for further discovery on contract formation. /d. at *7. As just noted, Lukis did not challenge

contract formation; rather, as to arbitration, she argued only that Whitepages had waived its right

to compel arbitration. Doc. 103 at 1-4. There was thus no possible need for further discovery on

the question whether Lukis had assented to the arbitration provision in the Terms of Use.

Conclusion

Whitepages’s motion to stay pending its appeal is granted as to Lukis’s claim and denied

as to the claims of Norvaisas and Brown, though litigation on those claims will be limited for the

time being to arbitrability issues. Whitepages’s motions to dismiss the claims of Norvaisas and

Brown based on standing and personal jurisdiction are denied. The court defers ruling on

Whitepages’s motions based on the arbitration provision and forum selection clause, pending

further proceedings on the issue of contract formation between Whitepages, on the one hand, and

Norvaisas and Brown, on the other.

eh {t—

July 16, 2021

United States District Judge

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