In its motion to reconsider, McDonald’s argues that we erroneously relied on what we found to
be an inconsistent position that it had taken regarding the potential value of the plaintiffs’ claims
in cases essentially indistinguishable from that of Popovich. First, that finding was not essential
to the decision; Popovich met his burden of showing that his claim did not fall within the scope
of the Consumer Rules. But secondly, we do not agree with McDonald’s argument that its
positions were not inconsistent. In this regard, McDonald’s current motion essentially says
nothing new, so we need not address the particulars of its argument.

For these reasons, the Court denies defendants’ motions to reconsider [docket items 34-1

& 35-1].

WU

MATTHEW F. KENNELIY
United States District Ju
Date: March 20, 2002


‘Minute Order Fag (06/97)

United Sta.es District Court, Northern District of Mlinois

Name of Assigned Judge F Pa . Sitting Judge if Other
or Magistrate Judge | 777 atthe w F, Ke nnelly than Assigned Judge
CASE NUMBER 01 C 6622 DATE 3/21/2002
CASE Nick Popovich vs. McDonald’s Corporation, et al
TITLE
[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue___.

4 Oo Ruling/Hearingon____ssetfor_ at

(5) go Status hearing[held/continued to] [set for/re-set for] on ___ set for J at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor at

(7) ica Trial[set for/re-set for]on_ at

(8) ao [Bench/Jury trial] [Hearing] held/continuedto____at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUERCP4(m) (General Rule 21 ClFRCP41(a)\(1) CO FRCP41(a\(2).

ao) of [Other docket entry] Enter memorandum opinion and order. For these reasons, the Court denies
defendants’ motions to reconsider. (34-1,35-1) Status hearing set for 4/23/02 at 9:30 a.m.
(Related Case 01 C 8121)

(il) ff [For further detail see order attached to the original minute order.]

Y | Nonotices required, advised in open court.

No notices required.
req number of notices

Notices mailed by judge’s staff.

MAR 2 2 2002

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
courtroom
1? deputy’s

initials —
Date/timb Foveived int 2 —*

central Clerk's Office ‘mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION :
MAR 2 2 2007

NICK POPOVICH, )
)

Plaintiff, )

)

vs. ) Case No. 01 C 6622

)

McDONALD’S CORPORATION, )
SIMON MARKETING, INC., and )
JEROME P. JACOBSON, )
)

Defendants. )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Defendant McDonald’s Corporation, joined by defendant Simon Marketing, Inc., has
moved to reconsider the Court’s January 14, 2002 ruling denying defendants’ motions to stay the
proceedings and compel arbitration. That ruling was premised on our finding that the arbitration
procedure provided for in the parties’ contract was prohibitively expensive, thus rendering the
arbitration provision unenforceable. The contract (actually the rules of certain of the promotional
games involved in this lawsuit) incorporated the rules of the American Arbitration Association,
and those rules, we found, would have required Popovich to pay an exorbitant fee to arbitrate this
case.

McDonald’s has now offered to pay the arbitration fees to the extent they exceed those
provided for by the AAA’s Consumer Rules, which were reasonable but which, we found, did

not apply to Popovich’s claim. This is not a basis for reconsideration of the Court’s ruling. We

Ul,

agree with Popovich that McDonald’s offer, which is inconsistent with the parties’ contract,


amounts to an offer for a new contract. Popovich is under no obligation to accept McDonald’s
offer, and the Court is in no position to impose it, As a matter of elementary: contract law,
McDonald’s cannot unilaterally modify the existing agreement. See, e.g., Channel v. Citicorp.,
89 F.3d 379, 384 (7th Cir.1996); Ellman v. Janni, 21 Ill. App. 3d 353, 362, 157 N.E.2d 807, 813
(1959). The offer is logically indistinguishable from an offer by a defendant in a case for breach
of a contract without an arbitration requirement to submit the case to arbitration. In those
circumstances, as in the present case, a Court would have no basis to require the plaintiff to
forego judicial remedies and arbitrate the case. The same is true here. Like the Eleventh Circuit
in Perez v. Globe Airport Security Services, Inc., 253 F.3d 1280, 1287 (11th Cir. 2001), we will
not remake the parties’ agreement to include a provision requiring arbitration if McDonald’s
agrees to pay the expenses. Contrary to defendant’s argument, this case is not controlled by this
Court’s ruling in Phillips v. Associates Home Equity Services, Inc., 179 F. Supp. 2d 840 (N.D.
Ill. 2001), in which, after first declining to enforce an arbitration provision due to prohibitive
expense, we then compelled arbitration after the defendant offered to pay the fee. In Phillips, the
arbitration provision specifically contemplated that the defendant would pay the fees if requested
to do so. See id. at 843. No similar provision appears in the contract here; the contract
incorporates the AAA rules, which impose upon Popovich the fees in question. Finally, our
decision in Kennedy v. Conseco Finance Corp., No. 00 C 4399, 2000 WL 1760943 (N.D. Ill.
Nov. 30, 2000), a pre-Green Tree ruling, is not binding in the present case.

In the Court’s prior ruling, we concluded that the AAA’s Consumer Rules did not apply
because of the value of Popovich’s claim. McDonald’s had contended that the claim was worth

less than $10,000 (thus rendering the Consumer Rules applicable), but we rejected this argument.