I N T H E

Indiana Supreme Court

Supreme Court Case No. 23S-CP-115

Tonia Land, individually and on behalf of all others 

similarly situated,

Appellant (Plaintiff below)

–v–

IU Credit Union,

Appellee (Defendant below)

Argued: June 29, 2023 | Decided: February 1, 2024

Appeal from the Monroe Circuit Court,

No. 53C06-2103-PL-562

The Honorable Holly M. Harvey, Judge

On Petition to Transfer from the Indiana Court of Appeals, 

No. 22A-CP-382

Opinion on Rehearing by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.
Indiana Supreme Court | Case No. 23S-CP-115 | February 1, 2024 Page 2 of 7

Goff, Justice.

The essential facts of this case are as follows: When Tonia Land first 

became a customer of IU Credit Union (IUCU), she received an account

agreement, the terms of which were “subject to change at any time.” App. 

Vol. II, p. 43. When Land later registered for online banking, she received

and accepted a second agreement, permitting IUCU to “modify the terms 

and conditions applicable to the Services from time to time.” Id. at 118. In 

2019, IUCU sent to Land a proposed change to these agreements (the 

Addendum). The terms of the Addendum would have (1) permitted either 

party to require arbitration for resolving disputes and (2) prohibited Land

from initiating or joining a class-action lawsuit. Id. at 127. Unless Land 

exercised her “right to opt out” of this arrangement within thirty days of 

receiving notice, the Addendum stated, its proposed terms would become 

binding. Id. Land, while never having exercised this right, later filed a 

class-action complaint against IUCU. Citing the Addendum, IUCU sought

to compel arbitration. 

On transfer, this Court held that, while IUCU provided Land with 

reasonable notice of its offer to amend the original agreements, Land’s 

subsequent silence and inaction did not—under Section 69 of the 

Restatement (Second) of Contracts—result in her assent to that offer. Land 

v. IU Credit Union, 218 N.E.3d 1282, 1291 (Ind. 2023).

IUCU now petitions for rehearing, claiming that the Court failed to 

address certain legal authorities and arguments raised on appeal and in 

the transfer proceedings. We hereby grant the petition to address these 

claims. While we affirm our original opinion in full, we leave open the 

possibility, in some future case, of adopting a different standard 

governing the offer and acceptance of unilateral contracts between 

businesses and consumers.

Discussion and Decision

IUCU raises two principal claims on rehearing: (1) that the Court failed 

to consider “two directly applicable authorities” supporting its argument 

that Land “assented to arbitration by failing to opt out” and by continuing 
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to use her accounts, and (2) that the Court failed to consider IUCU’s 

“alternative” argument that the agreements’ modification clauses 

precluded the need for Land’s assent to arbitration. Pet. for Reh’g at 5–6.

We address these arguments in turn. 

I. This Court did not improperly fail to address the 

supplemental authorities cited by IUCU. 

In its notice of additional authorities, filed during the proceedings on 

transfer, IUCU directed this Court’s attention to two legal authorities—

Cornell v. Desert Financial Credit Union, 524 P.3d 1133 (Ariz. 2023), and 

Section 3 of the Restatement of Consumer Contracts (RCC). Notice at 3. 

These authorities, IUCU explained, specifically supported the arguments 

it had raised in pages 39 through 41 of its appellee’s brief.1Id. IUCU now 

faults the Court for failing to consider these authorities in our opinion.2

Pet. for Reh’g at 6–8. But neither Cornell nor Section 3 of the RCC supports

the arguments IUCU had raised.

In Cornell, the plaintiff (a bank customer) signed an agreement which 

contained no arbitration clause but expressly allowed the bank to “change 

[the] terms and conditions” of the agreement “from time to time.” 524 

P.3d at 1135. The bank later updated the terms of the agreement by adding 

a mandatory arbitration clause, which customers could opt out of 

(without penalty) by giving notice within a prescribed period. Id. The 

plaintiff, while never having exercised her right to opt out, later filed a 

class-action claim against the bank, alleging illegal overdraft fees. Id. at 

1 “When pertinent and significant authorities come to the attention of a party after the party’s 

brief or Petition has been filed, or after oral argument but before decision,” our appellate rules 

allow a party to “promptly file with the Clerk a notice of those authorities setting forth the 

citations.” Ind. Appellate Rule 48. The notice must include “a reference either to the page of 

the brief or to a point argued orally to which the citations pertain, with a parenthetical or a 

single sentence explaining the authority.” Id.

2 While we appreciate vigorous legal advocacy, we strongly caution IUCU’s counsel against

the indecorous tone of argument in their rehearing petition.
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1136. The bank moved to compel arbitration. Id. The plaintiff responded 

by arguing that she never assented to the arbitration clause. Id. In rejecting 

the plaintiff’s argument, the Supreme Court of Arizona adopted Section 3 

of the RCC to hold that a business may modify a contract if (1) the 

contract’s original terms contained an express modification clause; (2) the 

business gave, and the consumer received, reasonable notice of the 

modification and an opportunity to opt out with no penalty; and (3) the 

consumer continued the business relationship past a reasonable opt-out 

period. Id. at 1135 (citing RCC § 3 (Am. L. Inst., Tentative Draft No. 2, 

2022)). 

Importantly, the Cornell court expressly held that its ruling applied 

only to “on-going, at-will, consumer-business relationships” that “consist 

of the day-to-day offer and acceptance of unilateral contracts.” Id. 

(emphasis added); see also RCC § 3 (specifying its applicability to a 

“standard contract term in a consumer contract governing an ongoing 

relationship”). By contrast, the Cornell court emphasized at length, a party 

may not modify the original terms of a bilateral contract—absent an 

express provision for unilateral modification—without an additional offer, 

acceptance, and consideration. 524 P.3d at 1136, 1137–38.

It would certainly be fair to characterize the relationship between Land 

and IUCU as an “on-going, at-will, consumer-business relationship.” See 

id. at 1135. But IUCU, in that section of its appellee’s brief referred to in its 

notice of additional authorities, disclaimed—repeatedly—its authority 

under the original agreements’ change-in-terms clauses to “unilaterally 

impose the Arbitration [Addendum] on anyone.” Appellee’s Br. at 39. 

Those agreements, IUCU emphasized instead, were “necessarily 

bilateral,” and the issue in this case, IUCU insisted, was “whether the 

parties can enter into a new contractual amendment regarding arbitration 

by establishing the three essential elements of any contract under standard 

contract law—offer, acceptance, and consideration.” Id. at 40, 41 (emphasis 
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added).3 This emphasis on the bilateral nature of the agreements aligns 

with IUCU’s reliance on Section 69 of the Restatement (Second) of 

Contracts, which recognizes a party’s silence as acceptance in only a few 

exceptional circumstances—and which we expressly based our holding 

on. Id. at 37. By contrast, Section 3 of the RCC recognizes silence by 

acceptance as the default rule, so long as the offeree received reasonable 

notice and an opportunity to opt out without penalty and continued 

business with the offeror. 

To be sure, Section 3 of the RCC may very well offer “an effective 

modification procedure that fairly balances the public policies of economic 

efficiency and consumer protection.” See Cornell, 524 P.3d at 1139. And we 

recognize the practical difficulties that businesses may face in securing 

affirmative consent to contract modifications from existing customers. For 

these reasons, we leave open the possibility of adopting Section 3 of the 

RCC in some future case. But, given IUCU’s arguments on appeal and on 

transfer, neither Section 3 of the RCC nor Cornell apply to this case. We 

thus did not improperly fail to consider those authorities. 

II. This Court did not improperly fail to consider 

IUCU’s “alternative” argument on appeal. 

IUCU also faults the Court for failing to consider its “alternative” 

argument that it “properly applied” the agreements’ modification clauses 

“when it added an additional forum of arbitration to an already existing 

term establishing a forum for resolving disputes.” Pet. for Reh’g at 16. 

Those clauses, IUCU insists, “allowed [it] to ‘unilaterally’ amend” the 

agreements’ existing terms “without the need to establish Land’s assent to 

3 See also Appellee’s Br. at 40 (insisting that IUCU’s “right to freedom of contract does not 

depend in any way on the ‘change in terms’ clause, nor does that clause . . . serve in any [way] 

to limit IUCU’s or Land’s freedom to enter into new agreements of any type, including 

arbitration agreements”); id. at 41 (relying on “Indiana contract law rather than the ‘change in 

terms’ provision in the Agreement to establish it entered into a new contractual amendment 

requiring arbitration”).
Indiana Supreme Court | Case No. 23S-CP-115 | February 1, 2024 Page 6 of 7

the change.” Id. (citing Appellee’s Br. at 42, 47–48) (bold emphasis added, 

italics omitted). 

We view this claim as nothing more than a variation of IUCU’s first 

argument, signaling a labored attempt to litigate theories that IUCU 

expressly rejected on direct appeal. 

In her appellant’s brief, Land argued that the agreements’ modification 

clauses did not permit IUCU’s unilateral addition of the arbitration 

Addendum. Appellant’s Br. at 35–41. In response, IUCU insisted that it 

was “not relying on the change in terms clause as the basis for its ability 

to add an arbitration provision.” Appellee’s Br. at 45 (emphasis added). 

Instead, IUCU emphasized, it was “relying on standard Indiana contract 

law” and the parties’ “freedom” to contract “to support its ability to enter 

into arbitration agreements with its members.” Id. Thus, IUCU concluded, 

“interpretation of the change in terms clause is irrelevant to the Court’s 

ultimate decision in this case.” Id. (emphasis added). To be sure, if the 

Court were to have found otherwise, IUCU asked us to “reject Land’s 

suggested interpretation” of the change-in-terms clauses. Id. at 46. But 

ultimately, we chose the former option. See Land, 218 N.E.3d at 1287 n. 3 

(declining to address Land’s argument “that the terms of the original 

account Agreement did not permit the unilateral addition of the 

Addendum” because we “resolve[d] this case in her favor on other 

grounds”). So, IUCU can’t now complain that the Court’s opinion 

improperly omitted its “alternative argument” from consideration.4

4

IUCU also argues that subsection 69(1)(a) of the Restatement imposed on Land a duty to opt 

out to avoid assenting to the Addendum and that the parties’ “previous dealings” under 

subsection 69(1)(c) gave Land clear notice that continued use of the account without opting 

out would amount to acceptance. Pet. for Reh’g at 12–14. But IUCU raised no arguments 

under subsection 69(1)(a) in its appellee’s brief or transfer petition, thus waiving the issue on 

rehearing. See Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct. App. 2003). And even if Land had 

“necessarily” agreed in the original contracts “to be bound by any change in terms as long as 

she maintained her banking relationship with IUCU,” Pet. for Reh’g at 11, that arguably 

defeats the purpose of giving her the right to “opt out” of the Addendum. In any case, IUCU, 

to reiterate, repeatedly disclaimed its authority under the original change-in-terms clauses to 

“unilaterally impose the Arbitration Provision on anyone.” Appellee’s Br. at 39.
Indiana Supreme Court | Case No. 23S-CP-115 | February 1, 2024 Page 7 of 7

Conclusion

We recognize the practical difficulties that businesses may face in 

securing affirmative consent to contract modifications from existing 

customers. And for that reason, we leave open the possibility of adopting, 

in some future case, a different standard governing the offer and 

acceptance of unilateral contracts between businesses and consumers. But 

given IUCU’s emphasis on the bilateral nature of the agreements here, and 

its persistent disavowal of authority to unilaterally impose the arbitration 

Addendum, we find no merit in IUCU’s arguments on rehearing. We thus

affirm our original opinion in full.

Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.

A T T O R N E Y S F O R A P P E L L A N T

Tyler B. Ewigleben

Lisa M. LaFornara

Vess A. Miller

Lynn A. Toops

Cohen & Malad, LLP

Indianapolis, Indiana

Matthew R. Gutwein

DeLaney & DeLaney LLC

Indianapolis, Indiana

John Steinkamp

John Steinkamp & Associates, P.C.

Indianapolis, Indiana

A T T O R N E Y S F O R A P P E L L E E

James R. Branit

Phillip G. Litchfield

Litchfield Cavo LLP

Chicago, Illinois