IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

SHA-POPPIN GOURMET POPCORN LLC, 

an Illinois limited liability company, 

individually and on behalf of all others 

similarly situated,

 Plaintiff,

v.

JPMORGAN CHASE BANK, N.A., an Ohio 

corporation, and 

PHUNWARE, INC., a Delaware corporation, 

individually and on behalf of all others 

similarly situated, 

 

 Defendants. 

Case No. 20-cv-02523 

AJIRA AI LLC, an Illinois limited liability 

company, individually and on behalf of all 

others similarly situated,

 Plaintiff,

v.

JPMORGAN CHASE BANK, N.A., an Ohio 

corporation, and 

 

 Defendants. 

Case No. 20-cv-04428 

PLAINTIFFS’ JOINT RESPONSE IN OPPOSITION TO JPMORGAN CHASE BANK’S 

MOTION TO STAY FURTHER PROCEEDINGS AND COMPEL ARBITRATION

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i

TABLE OF CONTENTS 

BACKGROUND ............................................................................................................................ 2 

ARGUMENT ................................................................................................................................. 4 

A. Chase Has Not Demonstrated that Plaintiffs Agreed to the DSA ................................. 5 

B. The DAA’s Reference to the JAMS or AAA Rules Does Not “Clearly and 

Unmistakably” Delegate Scope Issues to an Arbitrator ................................................. 7 

C. Plaintiffs’ Claims Do Not Fall Under the Scope of the DAA’s 

Arbitration Agreement .................................................................................................... 14 

CONCLUSION ............................................................................................................................ 20 

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ii

TABLE OF AUTHORITIES 

Supreme Court Cases

AT & T Techs., Inc. v. Commc’ns Workers of Am., 

 475 U.S. 643 (1986) ........................................................................................................ 6, 8 

First Options of Chicago, Inc. v. Kaplan, 

 514 U.S. 938 (1995) ............................................................................................................ 8 

Henry Schein, Inc. v. Archer & White Sales, Inc., 

 139 S. Ct. 524 (2019) ........................................................................................................... 8 

Howsam v. Dean Witter Reynolds, Inc., 

 537 U.S. 79 (2002) ............................................................................................................ 14 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 

 460 U.S. 1 (1983) .............................................................................................................. 14 

Rent-A-Ctr., W., Inc. v. Jackson,

 561 U.S. 63 (2010) .......................................................................................................... 8, 9

Appellate Court Cases

Awuah v. Coverall N. Am., Inc., 

 554 F.3d 7 (1st Cir. 2009) .................................................................................................... 9 

Bazemore v. Jefferson Capital Sys., LLC, 

 827 F.3d 1325 (11th Cir. 2016) ........................................................................................... 7 

Campbell Soup Co. v. Wentz, 

 172 F.2d 80 (3d Cir.1948) ................................................................................................. 10 

CK Witco Corp. v. Paper Allied Indus., 

 272 F.3d 419 (7th Cir. 2001) ............................................................................................... 8 

Duthie v. Matria Healthcare, Inc., 

 540 F.3d 533 (7th Cir. 2008) ............................................................................................. 14 

Extra Equipamentos E Exportacao Ltda. v. Case Corp., 

 541 F.3d 719 (7th Cir. 2008) ............................................................................................. 11 

Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 

 374 F.3d 1 (1st Cir. 2004) .................................................................................................. 17 

Case: 1:20-cv-02523 Document #: 71 Filed: 11/02/20 Page 3 of 29 PageID #:664
iii

Gore v. Alltel Commc’ns, LLC, 

 666 F.3d 1027 (7th Cir. 2012) ............................................................................... 14, 15, 19 

JPay, Inc. v. Kobel, 

 904 F.3d 923 (11th Cir. 2018) ............................................................................................. 8 

Mason v. Midland Funding LLC, 

 815 F. App’x 320 (11th Cir. 2020) .................................................................................. 6, 7 

Rosenblum v. Travelbyus.com Ltd., 

 299 F.3d 657 (7th Cir. 2002) ...................................................................................... passim

Shriner v. Signal Fin. Co., 

 92 F. App’x 322 (7th Cir. 2003) ........................................................................................ 17 

Wachovia Bank, Nat. Ass’n v. Schmidt, 

 445 F.3d 762 (4th Cir. 2006) ....................................................................................... 19, 20 

Wisconsin Local Gov’t Prop. Ins. Fund v. Lexington Ins. Co., 

 840 F.3d 411 (7th Cir. 2016) ............................................................................................. 14 

Zurich Am. Ins. Co. v. Watts Indus., Inc., 

 466 F.3d 577 (7th Cir. 2006) ............................................................................................... 5 

District Court Cases

Allstate Ins. Co. v. Toll Bros., Inc., 

 171 F. Supp. 3d 417 (E.D. Pa. 2016) ........................................................................... 10, 11 

Ashworth v. Five Guys Operations, LLC, 

 No. CV 3:16-06646, 2016 WL 7422679 (S.D.W. Va. Dec. 22, 2016) ............................... 9 

Chong v. 7-Eleven, Inc., 

 No. CV 18-1542, 2019 WL 1003135 (E.D. Pa. Feb. 28, 2019) .................................. 10, 11 

Clements v. JPMorgan Chase Bank, N.A., 

 No. 18 C 660 (N.D. Ill. Dec. 12, 2018) ............................................................................. 14 

Davis v. Fenton, 

 26 F. Supp. 3d 727 (N.D. Ill. 2014) ................................................................................... 15 

Dill v. JPMorgan Chase Bank, N.A., 

 No. 19 CIV. 10947 (KPF), 2020 WL 4345755 (S.D.N.Y. July 29, 2020) ........................ 14 

Doe v. Natt, 

 No. 2D19-1383, 2020 WL 1486926 (Fla. Dist. Ct. App. Mar. 25, 2020) ............. 10, 12, 13 

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iv

Eiess v. USAA Fed. Sav. Bank, 

 404 F. Supp. 3d 1240 (N.D. Cal. 2019) ............................................................................. 11 

Friends for Health: Supporting N. Shore Health Ctr. v. PayPal, Inc., 

 No. 17 CV 1542, 2018 WL 2933608 (N.D. Ill. June 12, 2018) .......................................... 6 

Huron Consulting Grp. Inc. v. Gruner, 

 No. 17 C 6042, 2018 WL 572709 (N.D. Ill. Jan. 24, 2018) ........................................ 15, 17 

Info. Sys. Audit and Control Ass’n v. TeleCommc’n Sys., Inc., 

 No. 17 C 2066, 2017 WL 2720433 (N.D. Ill. June 23, 2017) ............................................. 9 

Ingalls v. Spotify USA, Inc., 

 No. C 16-03533 WHA, 2016 WL 6679561 (N.D. Cal. Nov. 14, 2016) ............................ 11 

In re Little, 

 610 B.R. 558 (Bankr. D.S.C. 2020) ................................................................................... 11 

In re: Zetia (Ezetimibe) Antitrust Litig., 

 No. 2:18MD2836, 2018 WL 4677830 (E.D. Va. Sept. 6, 2018) ....................................... 12 

Johnson v. JP Morgan Chase Bank, N.A., 

 No. EDCV172477JGBSPX, 2018 WL 4726042 (C.D. Cal. Sept. 18, 2018) .................... 14 

Meadows v. Dickey’s Barbecue Rests., Inc., 

 144 F. Supp.3d 1069 (N.D. Cal. Nov. 12, 2015) ............................................................... 12 

Mecum v. Weilert Custom Homes, LLC, 

 239 F. Supp. 3d 1093 (N.D. Ill. 2017) ................................................................................. 5 

Miracle-Pond v. Shutterfly, Inc., 

 No. 19 CV 04722, 2020 WL 2513099 (N.D. Ill. May 15, 2020) ........................................ 5 

Novak v. JP Morgan Chase Bank, NA, 

 No. 06-14862, 2008 WL 907380 (E.D. Mich. Mar. 31, 2008) .......................................... 14 

Nucap Indus., Inc. v. Robert Bosch LLC, 

 No. 15-CV-2207, 2015 WL 4038714 (N.D. Ill. July 1, 2015) .............................. 16, 18, 19 

O’Quinn v. Comcast Corp.,

 No. 10 C 2491, 2010 WL 4932665 (N.D. Ill. Nov. 29, 2010). ........................................ 6, 7 

Rensel v. Centra Tech, Inc., 

 No. 17-24500-CIV, 2018 WL 4410110 (S.D. Fla. June 14, 2018) ..................................... 7 

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v

Rui Chen v. Premier Fin. All., Inc., 

 No. 18-CV-3771 YGR, 2019 WL 280944 (N.D. Cal. Jan. 22, 2019) ................................. 7 

Sanchez v. J.P. Morgan Chase Bank, N.A., 

 No. 14-20468-CIV-MORENO, 2014 WL 4063046 (S.D. Fla. Aug. 15, 2014) ................ 14 

Scott v. JPMorgan Chase & Co., 

 No. 13 CIV. 646 KPF, 2014 WL 338753 (S.D.N.Y. Jan. 30, 2014) ................................. 14 

Sgouros v. TransUnion Corp., 

 817 F.3d 1029 (7th Cir. 2016) ................................................................................... 5, 6, 10 

Sherman v. AT & T Inc., 

 No. 11 C 5857, 2012 WL 1021823 (N.D. Ill. Mar. 26, 2012) ............................................. 6 

Slaughter v. Nat’l R.R. Passenger Corp., 

 No. 19-CV-2920 (APM), 2020 WL 2527193 (D.D.C. May 18, 2020) ............................. 17 

Snyder v. Wells Fargo Bank, N.A., 

 No. 11 CIV. 4496 SAS, 2011 WL 6382707 (S.D.N.Y. Dec. 19, 2011) ............................ 17 

Stone v. Wells Fargo Bank, N.A., 

361 F. Supp. 3d 539 (D. Md. 2019) ................................................................................... 11 

Sunmonu v. Chase Bank, N.A., 

 No. CV GLR-18-1695, 2019 WL 1258788 (D. Md. Mar. 19, 2019) ................................ 14 

State Court Cases

Ajamian v. CantorCO2e, L.P., 

 203 Cal. App. 4th 771, 790, 137 Cal. Rept. 3d 773, 789 (2012) ....................................... 13 

Bass v. SMG, Inc., 

 328 Ill. App. 3d 492, 765 N.E.2d 1079 (1st Dist. 2002) ................................................... 15 

Flandreau Pub. Sch. Dist. No. 50-3 v. G.A. Johnson Const., Inc., 

 2005 S.D. 87, 701 N.W.2d 430 ......................................................................................... 11 

Johnson-Linzy v. Conifer Care Communities A, LLC, 

 2020 COA 88, 469 P.3d 537 ........................................................................................ 11, 13 

Salsitz v. Kreiss, 

198 Ill.2d 1, 761 N.E.2d 724 (2001) .................................................................................. 14 

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vi

Other Authorities 

AAA Rules, Forms, & Fees,

https://www.adr.org/Rules .......................................................................................... passim 

JAMS ADR Rules, Clauses and Procedures, 

https://www.jamsadr.com/adr-rules-procedures/ ........................................................ passim

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1

These cases are about Defendant JPMorgan Chase Bank, N.A.’s (“Chase”) administration 

of a federal loan program designed to help small businesses—like plaintiffs Sha-Poppin Gourmet 

LLC and Ajira AI LLC (together, “Plaintiffs”)—survive the hardship wrought by the global 

COVID-19 pandemic. Plaintiffs allege that they timely submitted applications for loans under 

the Small Business Administration’s (“SBA”) Paycheck Protection Program (“PPP”) through 

Chase, but did not receive funding because Chase—acting contrary to the SBA’s instructions—

chose to submit the applications of its preferred clients first. Each of Plaintiffs’ claims against 

Chase concern the bank’s decision-making and processing of their PPP loan applications. 

 Rather than face these allegations, Chase has moved to force Plaintiffs into arbitration. 

The gist of its two identical motions is simple: Chase says that it only processed loan 

applications for its own customers, all of whom entered into agreements with the bank that, in 

turn, included arbitration clauses. While those agreements do not address the PPP (nor could 

they—they were drafted long before the PPP or even the pandemic existed), Chase posits that the 

clauses’ broad wording demonstrates Plaintiffs agreement to arbitrate the claims asserted here. 

But while federal courts interpret arbitration clauses generally, Chase fails to show that 

arbitration should be compelled for at least three reasons. 

 First, while Chase presents evidence showing Plaintiffs agreed to its Deposit Account 

Agreement (“DAA”) when they opened their deposit accounts, Chase fails to provide evidence 

showing that Sha-Poppin agreed to its Digital Service Agreement (“DSA”) and the DSA’s 

arbitration clause, or that Ajira agreed to its Online Services Agreement (“OSA”) and arbitration 

clause. It therefore fails to meet its burden to show that an agreement to arbitrate exists based on 

those documents. 

 Second, Chase says that the Court should compel arbitration because the DAA—a 

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2

document to which Plaintiffs acknowledge they agreed—delegates questions of arbitrability to 

the arbitrator, not the Court. This argument fails as well. The DAA simply provides a crossreference to two sets of arbitration rules that have competing stances on the issue of delegation. 

Many courts acknowledge that a cross reference to an arbitrator’s rules comes nowhere close to 

demonstrating an unsophisticated party’s—like the independent, small businesses at issue here— 

“clear and unmistakable” intent to delegate arbitrability. And that point aside, the DAA’s 

reference to materially different arbitration rules could not possibly demonstrate such intent here. 

 Third, Chase says that because the DAA’s arbitration clause uses broad “relating to” 

language, it must cover disputes addressing its processing of PPP applications because it only 

processed applications for its own banking clients. Not so. By its terms, the DAA only requires 

arbitration of claims relating to Chase’s clients’ deposit accounts and, here, Plaintiffs have no 

complaint about their accounts or any service relating to them. Even under the broad language 

used by the DAA, Chase cannot force them to arbitrate claims that they did not agree to 

arbitrate—particularly where the PPP has its own terms that do not reference the DAA or require 

arbitration. 

 For all these reasons, Chase’s motion should be denied. 

BACKGROUND 

The pertinent background to Chase’s motion is not complicated. As set out in the 

respective Complaints, Plaintiffs and other small businesses turned to Chase in order to apply for 

PPP loans. Per the requirements set out by the SBA, Chase, as an SBA-approved lender, was 

required to process those loan applications on a first-come, first-served basis. Because it did not 

do so—and, as widely reported in the media, processed the loans of its favored customers first—

Plaintiffs and other small businesses received smaller loan amounts than they would have had 

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Chase processed applications as it was supposed to do. 

 Plaintiff Sha-Poppin is a small Illinois business (having only five employees) that, going 

into 2020, maintained a deposit account at Chase. (Sha-Poppin v. Chase, et al., No. 20-cv-2523, 

dkt. 1 at ¶¶ 56, 59 (N.D. Ill. Apr. 24, 2020).) When Plaintiff’s proprietor, Stacy HawkinsArmstrong, first opened Sha-Poppin’s Chase account, she simply signed the paperwork that was 

presented to her; she did not have an attorney (or anyone else) present to negotiate or review the 

terms of her business’s deposit account. (Declaration of Stacy Hawkins-Armstrong (“HawkinsArmstrong Decl.”) at ¶ 5.) Nor did she think or expect that the DAA applied to anything other 

than her business’s deposit account and the services related to it. (Id.) Later, Ms. HawkinsArmstrong also signed up for some of Chase’s online services using her computer. (Id. at ¶ 6.) 

She has no recollection of being presented with any terms during that process, nor does she recall 

how or whether she “clicked boxes” during that signup process or indicated her assent to 

anything in particular. (Id.) 

 The same is true for Plaintiff Ajira. Ajira is also a small Illinois business (having only 

one employee) that submitted a PPP loan application through Chase. (Ajira AI v. Chase, et al., 

No. 20-cv-04428, dkt. 1 at 39 (N.D. Ill. July 29, 2020).) Ajira also maintained Chase deposit 

accounts, also did not have legal representation in any way when opening its accounts, and also 

understood that the DAA only applied to its deposit accounts. (Declaration of Sandeep Mehta 

(“Mehta Decl.”) at ¶ 4.) Likewise, Sandeep Mehta—Ajira’s CEO—signed up for certain online 

services with Chase, but has no recollection of that signup process or the presentation of any 

terms applicable to those services.1 (Id. at ¶ 5.) 

1

 Ajira’s CFO, Ash Perti, was also a signer on Ajira’s Chase accounts. But like Mr. Mehta, he did 

not have legal representation when signing for Ajira on any Chase account or service, nor does he recall 

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 As set out in their respective Complaints, Plaintiffs applied for PPP loans through Chase. 

During the online application process, they each submitted their applications (using the federal 

form from the SBA) and were presented with the PPP application’s terms and requirements, 

which only incorporated and reiterated the SBA’s terms and requirements for PPP loan 

applications. (Hawkins-Armstrong Decl. ¶ 7; Mehta Decl. ¶ 6; see also Ex. A to Mehta Decl 

(Apr. 23, 2020 email from Chase stating “As a reminder, this is a U.S. SBA program that Chase 

facilitates as an SBA lender. The requirements and availability of funds under this program are 

driven by the SBA. To help you better understand these requirements as they currently stand, we 

recommend you review the program details available at SBA.gov or Treasury.gov.”); Ex. C to 

Hawkins-Armstrong Decl. (PPP application); Ex. B to Mehta Decl. (PPP application).) At no 

point in the application process were Plaintiffs’ deposit accounts, the DAA, or any arbitration 

agreement referenced. (Hawkins-Armstrong Decl. ¶ 7; Mehta Decl. ¶ 6.) No additional terms 

were referenced in subsequent communications from Chase about the PPP application process. 

(Hawkins-Armstrong Decl. ¶ 7; Mehta Decl. ¶ 6.) 

ARGUMENT 

Chase’s motion falters on three grounds. First, and as an initial matter, while Plaintiffs do 

not challenge that they agreed to the DAA, Chase fails to show that Plaintiffs agreed to be bound 

by the DSA or OSA arbitration clauses.2

 Second, the DAA does not evidence Plaintiffs’ “clear 

and unmistakable” intent to delegate issues of arbitrability to the arbitrator—so the Court must 

decide all issues of arbitrability. And third, by its terms the DAA only covers disputes relating to 

being presented with any specific terms when using Chase’s online services. (See Declaration of Ash 

Perti.)

2

 As referenced below, if the Court finds that Chase showed Plaintiffs did agree to the DSA or 

OSA, those agreements’ arbitration provisions mirror the DAA’s in all meaningful respects, so the second 

and third arguments would apply as well. 

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Plaintiffs’ deposit accounts; because this case does not cover disputes relating to those accounts, 

there is no basis to compel arbitration. 

A. Chase Has Not Demonstrated that Plaintiffs Agreed to the DSA or OSA. 

 While Plaintiffs do not dispute Chase’s narrative—and presentation of evidence—

relating to their agreement to the DAA (which governs Plaintiffs’ deposit accounts), (see, e.g.,

Sha-Poppin v. Chase, et al., No. 20-cv-2523, dkt. 60-1 at p. 8 of 237 (Oct. 15, 2020) (ShaPoppin’s signature card acknowledging receipt of the DAA)), Chase fails to show that Plaintiffs 

agreed to the DSA or OSA and, in turn, that they agreed to those agreements’ arbitration clauses. 

 As the party seeking to compel arbitration, Chase has the burden of establishing that an 

agreement to arbitrate exists. Mecum v. Weilert Custom Homes, LLC, 239 F. Supp. 3d 1093, 

1094–95 (N.D. Ill. 2017) (citing Zurich Am. Ins. Co. v. Watts Indus., Inc., 466 F.3d 577, 581 (7th 

Cir. 2006)). For online arbitration—or any other online—agreements, “[t]his is a factintensive inquiry: [the court] cannot presume that a person who clicks on a box that appears on a 

computer screen has notice of all contents not only of that page but of other content that requires 

further action (scrolling, following a link, etc.).” Sgouros v. TransUnion Corp., 817 F.3d 1029, 

1034–35 (7th Cir. 2016) (applying Illinois law and affirming denial of motion to compel 

arbitration). Thus, “the precise wording and format” is critical to whether an online agreement is 

enforceable click- or browsewrap. Miracle-Pond v. Shutterfly, Inc., No. 19 CV 04722, 2020 WL 

2513099, at *4 (N.D. Ill. May 15, 2020) (applying Illinois law). 

 Here, for Sha-Poppin’s purported agreement to the DSA, Chase relies on a single 

paragraph from the declaration of Nicholas Sergi, which states: 

On March 19, 2018, the Chase.com User ID for Stacy L. Hawkins Armstrong, 

which is affiliated with Sha-Poppin’s account, was used to agree to Chase’s [DSA]. 

During the enrollment process, the Chase.com User ID for Stacy L. Hawkins 

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Armstrong was required to and did affirmatively click boxes acknowledging that 

the user had read and accepted the [DSA]. 

(Sha-Poppin v. Chase, et al., No. 20-cv-2523, dkt. 60-1 at p. 103 of 237 (Oct. 15, 2020) .) But 

unlike Chase’s presentation of the actual signature card that evidenced her receipt of the DAA, 

none of Chase’s declarants provide any detail on the “boxes” that Ms. Armstrong purportedly 

clicked, how she was “required” to click them, how doing so “acknowledg[ed] that she had read 

and accepted the [DSA],” whether and how the DSA was provided to her (Was it on the same 

webpage? Available via a hyperlink or a scroll box? Or was it just a textual reference, similar to 

how the DAA and DSA generically cross-reference the JAMS or AAA rules?), or any details at 

all about the webpage Chase says that Ms. Armstrong used. Plaintiff, for her part, does not recall 

being presented with, or asked to agree to, any terms whatsoever. (Hawkins-Armstrong Decl. ¶ 

6.) The same is true for Chase’s attempt to show Ajira’s agreement to the OSA, which mirrors 

the arguments and declarant testimony addressed above. (See Ajira AI v. Chase, et al., No. 20-

cv-04428, dkt. 16 at p. 106 of 244 (Oct. 14, 2020).) Plaintiffs therefore dispute that they agreed 

to be bound by the terms of any version of the DSA or OSA when using Chase’s online services. 

Because Chase’s argument asks this Court to “presume” Plaintiffs’ knowing acceptance 

of the DSA and OSA, and their arbitration provisions, it should be rejected. Sgouros, 817 F.3d at 

1034–35. Indeed, similar “evidentiary gaps” routinely preclude the enforcement of online 

agreements and, consequently, underlie the denial of motions to compel arbitration.3 Mason v. 

3

 The decisions cited by Chase, (Sha Poppin Mot. at 11-12; Ajira Mot. at 11), engaged in similar 

analyses to determine whether a purported clickwrap agreement was enforceable. See, e.g., Sherman v. AT 

& T Inc., No. 11 C 5857, 2012 WL 1021823, at *3 (N.D. Ill. Mar. 26, 2012) (discussing, inter alia, 

language of clickwrap agreement and presence of hyperlinked terms); Friends for Health: Supporting N. 

Shore Health Ctr. v. PayPal, Inc., No. 17 CV 1542, 2018 WL 2933608, at *5 (N.D. Ill. June 12, 2018) 

(discussing testimony describing how enrollees were given the opportunity to review terms “either 

through a scroll box or through a link to the user agreement.”). And in O’Quinn v. Comcast Corp., a 

customer was held to an arbitration agreement after signing what amounted to multiple signature cards, in 

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7

Midland Funding LLC, 815 F. App’x 320, 325–26 (11th Cir. 2020) (denying motion to compel 

where defendant failed to offer sufficient proof of clickwrap agreement); see also, e.g., 

Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1330 (11th Cir. 2016) (affirming denial 

of motion to compel where declarant stated that “he ‘was able to ascertain that Plaintiff had 

applied for the [credit card] over the internet’ and that plaintiff ‘accepted the terms governing her 

account’ . . . [but did not] explain how he knows this, nor [did] he substantiate the claim with 

documentary proof.”); Rui Chen v. Premier Fin. All., Inc., No. 18-CV-3771 YGR, 2019 WL 

280944, at *3 (N.D. Cal. Jan. 22, 2019) (denying motion to compel where “[d]efendants [had] 

not offered evidence explaining the design and content of the webpage or how the [underlying 

agreement, which contained an arbitration provision] appeared on the [defendant’s] website”); 

Rensel v. Centra Tech, Inc., No. 17-24500-CIV, 2018 WL 4410110, at *14 (S.D. Fla. June 14, 

2018) (denying motion to compel arbitration where defendant did not “produce any evidence that 

substantiated [its] assertion” that plaintiff agreed to arbitration via a clickwrap agreement). 

 The result should be the same here. Chase presents no actual evidence demonstrating 

Plaintiffs’ assent to be bound by the DSA. It has therefore failed to meet its burden of 

demonstrating an agreement to arbitrate based on that document. 

B. The DAA’s Reference to the JAMS or AAA Rules Does Not “Clearly and 

Unmistakably” Delegate Scope Issues to an Arbitrator. 

Next, Chase says that DAA’s cross-reference to the JAMS or AAA rules evidences 

addition to specific declarant testimony about the way Comcast ensured customers would in fact review 

an online version of the agreement to arbitrate. No. 10 C 2491, 2010 WL 4932665, at *3 (N.D. Ill. Nov. 

29, 2010); O’Quinn v. Comcast Corp., No. 10-cv-2491, dkt. 18 (declaration of Wendy Farley) (N.D. Ill. 

Jul. 27, 2010) (declaration from Comcast executive presenting evidence of (i) multiple documents signed 

by the plaintiff acknowledging receipt of agreement and plaintiff’s agreement to be bound, along with (ii) 

Comcast practice of requiring installation technician to “allow the customer to review the [agreement] 

online”).

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8

Plaintiffs’ intent to delegate the issue of arbitrability to the arbitrator.4 (Mot. at 12–13.) But the 

question is an open one in this Circuit—particularly under the facts at issue here—and there is 

every reason to reject the argument Chase advances. 

“[T]he question of arbitrability . . . is undeniably an issue for judicial determination.” AT 

& T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986). Parties can overcome 

this presumption by agreement. But unlike issues whose outcome cheats in favor of arbitration, 

see, e.g., CK Witco Corp. v. Paper Allied Indus., 272 F.3d 419, 421 (7th Cir. 2001), the Supreme 

Court has “consistently held” that the question of arbitrability requires a “clear and 

unmistakable” manifestation of the parties’ intent to delegate the issue to the arbitrator, Henry 

Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019) (citing First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)), which is a “heightened standard,” Rent-ACtr., W., Inc. v. Jackson, 561 U.S. 63, 69 n.1 (2010). An express delegation clause—i.e., an 

explicit contractual agreement stating the parties’ agreement that an arbitrator, and not the court, 

will decide issues of arbitrability—manifests the “clearest possible intent” to delegate questions 

of arbitrability to the arbitrator. JPay, Inc. v. Kobel, 904 F.3d 923, 939 (11th Cir. 2018), cert. 

denied, 139 S. Ct. 1545, 203 L. Ed. 2d 711 (2019). Indeed, those clauses—and not a crossreference to an arbitrator’s rules—underlie the Supreme Court’s “clear and unmistakable” 

precedent.5 See, e.g., Rent-A-Ctr., 561 U.S. at 66–67 (holding that a provision giving the 

4

 If the Court finds that Sha-Poppin agreed to the DSA, all the arguments stated in this section 

apply equally to that agreement, which includes the same cross reference to the JAMS and AAA 

procedural rules. The same should hold for Ajira: the OSA uses slightly different language, but also cross 

references the competing JAMS and AAA procedural rules.

5

 Chase suggests that the OSA includes something resembling an express delegation clause, which

says that it applies to “the applicability of this arbitration clause.” (Ajira Mot. at 13.) But the clause falls 

short of stating the parties’ clear and unmistakable agreement that an arbitrator will decide arbitrability 

issues; instead, it only points the reader back to the OSA’s arbitration provision and its competing crossCase: 1:20-cv-02523 Document #: 71 Filed: 11/02/20 Page 15 of 29 PageID #:676
9

arbitrator “and not any federal, state, or local court or agency . . . exclusive authority to resolve 

any dispute relating to [arbitrability]” clearly and unmistakably delegated arbitrability). 

Less clear is the situation we have here, where the DAA is silent on the issue of who 

should decide arbitrability but states that if a claim is filed with either JAMS or AAA, then the 

selected “organization will apply its code of procedures.” (Dkt. 60-1 at p. 30 of 237.) Neither the 

Supreme Court nor the Seventh Circuit has determined whether a cross reference to an 

arbitrators’ procedural rules (much less competing sets of rules) counts as a “clear and 

unmistakable” expression of delegation. Info. Sys. Audit and Control Ass’n v. TeleCommc’n Sys., 

Inc., No. 17 C 2066, 2017 WL 2720433, at *2 (N.D. Ill. June 23, 2017). Still—at least in those 

cases involving two sophisticated parties and a single referenced set of arbitration rules—many 

courts have held that it does. Id. 

But the issue is not so black and white. Several courts have called out this “consensus 

view” as nothing more than a creature of its own momentum—one that is “incongruous with 

case law mandating delegation clauses be clear and unmistakable,” particularly where, like here, 

the party being forced to arbitration is not sophisticated. Ashworth v. Five Guys Operations, 

LLC, No. CV 3:16-06646, 2016 WL 7422679, at *3 (S.D.W. Va. Dec. 22, 2016) (opining that 

the consensus view “border[s] on the absurd”). See also Awuah v. Coverall N. Am., Inc., 554 

F.3d 7, 10–11 (1st Cir. 2009) (expressing doubt that a mere cross reference to the AAA rules was 

clear and unmistakable evidence of franchisees’ intent to delegate question of arbitrability). As 

one court summed up:

[I]t may be a difficult proposition to say that the text of an arbitration clause itself, 

when found among contract boilerplate, may constitute clear and unmistakable 

evidence of an unsophisticated party’s intentions. But incorporating forty pages of 

references to the JAMS and AAA rules. (See Ajira v. Chase, No. 20-cv-4428, dkt. 16 at p. 149 of 244 

(N.D. Ill. Oct. 14, 2020).) Thus, it does not clearly and unmistakably show an intent to delegate.

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arbitration rules into an arbitration clause is tantamount to inserting boilerplate 

inside of boilerplate, and to conclude that a single provision contained in those rules 

amounts to clear and unmistakable evidence of an unsophisticated party’s intent 

would be to take “a good joke too far.” 

Allstate Ins. Co. v. Toll Bros., Inc., 171 F. Supp. 3d 417, 429 (E.D. Pa. 2016) (citing Campbell 

Soup Co. v. Wentz, 172 F.2d 80, 83 (3d Cir. 1948). This more circumspect approach—which 

calls for a thoughtful (and actual) analysis of the contracting parties’ intent—is in accord with 

the Seventh Circuit’s instruction in Sgouros that courts “cannot presume that a person who clicks 

on a box that appears on a computer screen has notice of all contents not only of that page but of 

other content that requires further action.” 817 F.3d at 1035. Indeed, that warning should apply 

with considerable force here, where the underlying arbitration clause does not provide a 

hyperlink or instruction about how to locate the applicable procedural rules, a reference or 

specific direction to a rule about delegation, or even an explanation of which of the AAA or 

JAMS rulesets (there are many6) might apply. (Dkt. 60-1 at p. 30 of 237.) Doe v. Natt, No. 

2D19-1383, 2020 WL 1486926, at *7 (Fla. Dist. Ct. App. Mar. 25, 2020), reh’g denied, 299 So. 

3d 599 (Fla. Dist. Ct. App. 2020) (agreement’s generic reference to AAA rules “strikes us as a 

rather obscure way of evincing ‘clear and unmistakable evidence’ that the parties intended to 

preclude a court from deciding an issue that would ordinarily be decided by a court.”). 

To be sure, there is considerable—and growing—support for the view that a simple 

cross-reference to the AAA (or some other arbitrators’) rules does not satisfy the Supreme 

Court’s “clear and unmistakable” requirement in cases where at least one party is 

unsophisticated. See, e.g., Chong v. 7-Eleven, Inc., No. CV 18-1542, 2019 WL 1003135, at *10 

6

 JAMS has around 16 different sets of rules, guidelines, protocols, and procedures. JAMS ADR 

Rules, Clauses and Procedures, available at https://www.jamsadr.com/adr-rules-procedures/. The AAA 

has 7 sets of rules. Rules, Forms, & Fees, available at https://www.adr.org/Rules.

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(E.D. Pa. Feb. 28, 2019) (quoting Allstate Ins., 171 F. Supp. 3d at 428) (“[A] cross-reference to a 

set of arbitration rules containing a provision that vests an arbitrator with the authority to 

determine his or her own jurisdiction does not automatically constitute clear and unmistakable 

evidence that the parties intended to arbitrate threshold questions of arbitrability—at least where 

those parties are unsophisticated.”); Stone v. Wells Fargo, 361 F. Supp. 3d 539, 555 (D. Md. 

2019) (“It strains credulity to believe that the consumer knew—much less intended—that the 

cross-reference directed an arbitrator to decide arbitrability.”); Eiess v. USAA Fed. Sav. Bank, 

404 F. Supp. 3d 1240, 1253 (N.D. Cal. 2019) (quoting Ingalls v. Spotify USA, Inc., No. C 16-

03533 WHA, 2016 WL 6679561, at *4 (N.D. Cal. Nov. 14, 2016) (“[A] majority of the lower 

courts in the Ninth Circuit have ‘held that incorporation of the AAA rules was insufficient to 

establish delegation in consumer contracts involving at least one unsophisticated party.’”); 

Johnson-Linzy v. Conifer Care Communities A, LLC, 2020 COA 88, ¶ 19, 469 P.3d 537, 542 

(“Expecting a consumer in Johnson-Linzy’s position to read and reconcile [procedural rules of 

arbitration], and, based on that evaluation, definitively conclude that she is consenting to forgo 

judicial review of the agreement’s enforceability, simply does not meet [the] threshold.”); In re 

Little, 610 B.R. 558, 568 (Bankr. D.S.C. 2020) (following Stone v. Wells Fargo Bank); 

Flandreau Pub. Sch. Dist. No. 50-3 v. G.A. Johnson Const., Inc., 2005 S.D. 87, 701 N.W.2d 430, 

437 n.6 (distinguishing between express delegation clauses and the incorporation of AAA rules). 

Further, courts have reached this conclusion both in cases involving consumer contracts and 

those involving smaller and unsophisticated business entities, like independent business owners 

or franchisees.7 See, e.g., Meadows v. Dickey’s Barbecue Rests., Inc., 144 F. Supp.3d 1069, 

7

 The Seventh Circuit has suggested that the hallmark of sophistication is legal representation. 

Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 724-25 (7th Cir. 2008). Here, as 

noted above, both Plaintiffs are small businesses—each with five employees or less—that did not have 

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12

1078–79 (N.D. Cal. Nov. 12, 2015) (finding no clear and unmistakable evidence that franchisees 

intended an arbitrator to decide questions of arbitrability even though the AAA rules were 

incorporated in the arbitration provision because the franchisees were “far less sophisticated” 

than the franchisor-defendant.). 

Further, and beyond the question of whether a cross-reference to rules of arbitration 

satisfies the Supreme Court’s requirement of “clear and unmistakable” language, the DAA’s 

stance on delegation is itself ambiguous. As Chase recounts, the DAA lets the party filing a 

claim in arbitration choose JAMS or AAA, which will determine the “code of procedures” that 

will apply for any filed arbitration.8 (Mot. at 12–13.) But those rulesets treat the issue of 

delegation differently.9 JAMS Comprehensive Arbitration Rule 11(b) provides that disputes over 

the scope of the agreement “shall be submitted to and ruled on by the Arbitrator,” which is 

phrased in “mandatory terms.” In re: Zetia (Ezetimibe) Antitrust Litig., No. 2:18MD2836, 2018 

WL 4677830, at *6 (E.D. Va. Sept. 6, 2018), report and recommendation adopted sub nom. In re 

Zetia (Ezetimibe) Antitrust Litig., No. 2:18MD2836, 2018 WL 6795836 (E.D. Va. Dec. 6, 2018). 

But AAA Commercial Arbitration Rule 7(b) “is permissive, not mandatory,” id., and only notes 

that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any 

objections with respect to the existence, scope, or validity of the arbitration agreement or to the 

legal teams or personnel assist in their interactions with Chase. (Hawkins-Armstrong Decl. ¶ 7; Mehta 

Decl. ¶ 6.)

8

 The fact that the DAA provides for elective (rather than mandatory) arbitration adds additional 

ambiguity on the delegation issue. Specifically, the DAA states that the AAA or JAMS rules apply only 

when an arbitration is commenced (i.e., the applicability of those rules are “conditional on there being an 

arbitration”), which is “not a very helpful answer”—much less a “clear and unmistakable” one—to the 

question of who the parties intended to decide arbitrability. Natt, 2020 WL 1486926, at *7-10.

9

 For the purposes of this argument we assume Chase intended the JAMS Comprehensive 

Arbitration Rules & Procedures and the AAA Commercial Arbitration Rules and Mediation Procedures to 

apply, given those rules correspond to the specific rules cited by Chase. (See Sha Poppin Mot. at 12-13.) 

But as noted supra note 3, the DAA doesn’t specify which rules apply. 

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arbitrability of any claim or counterclaim,” AAA Rule 7(b). The AAA rule, then, only “confers 

an adjudicative power upon the arbitrator, but . . . does not purport to make that power exclusive 

. . . [and does not] purport to contractually remove that adjudicative power from a court of 

competent jurisdiction.” Natt, 2020 WL 1486926, at *7. See also Ajamian v. CantorCO2e, L.P., 

203 Cal. App. 4th 771, 790, 137 Cal. Rept. 3d 773, 789 (2012) (emphasis in original) (AAA Rule 

7(b) “tells the reader almost nothing, since a court also has power to decide such issues, and 

nothing in the AAA rules states that the . . . arbitrator, as opposed to the court, shall determine 

those threshold issues, or has exclusive authority to do so, particularly if litigation has already 

been commenced.”) (emphasis in original). Thus, because the DAA presents competing options 

for how the issue of delegation might proceed—i.e., it either must or may go to the arbitrator—it 

does not evidence any particular intent, much less a “clear and unmistakable” one. See JohnsonLinzy, 469 P.3d at 542 (“The incorporation of [two] sets of rules cannot ‘plainly and 

unambiguously empower an arbiter to decide arbitrability.’”) (citation omitted). 

In sum, while Chase asks the Court to rubberstamp this issue, an evaluation of the 

parties’ actual agreement fails to evidence a “clear and unmistakable” intent—particularly on the 

part of Plaintiffs—to delegate the issue of arbitrability. The Court must make the determination 

itself. 

C. Plaintiffs’ Claims Do Not Fall Under the Scope of the DAA’s Arbitration 

Agreement. 

Finally, Chase argues that because the DAA’s arbitration clause10 includes broad 

10 While Chase has not demonstrated its burden to hold Plaintiffs to the DSA’s or OSA’s arbitration 

clauses for the reasons described supra, the arguments discussed herein apply equally to Chase’s onesentence argument pertaining to the scope of the DSA’s and OSA’s arbitration provisions, which like the

DAA’s, only concerns claims “related to” specific Chase-related services—and not Chase’s 

administration of a federal loan program. (See Sha Poppin Mot. at 15; Ajira Mot. at 15.) In its Motion 

against Ajira, Chase suggests the OSA’s reach is broader than the DSA’s (saying that it applies to “any 

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“relating to” language, it sweeps in all disputes having any relation whatsoever with Plaintiff’s 

deposit account. While the law certainly treats such language expansively, Chase cannot force 

Plaintiffs to arbitrate claims—including those at issue here—that they did not agree to arbitrate.11

Unlike the presumption for gateway issues, questions as to the “scope of arbitrable issues 

should be resolved in favor of arbitration.” Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1032 

(7th Cir. 2012) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–

25 (1983)). “But that general preference yields to explicit contrary contractual language.” 

Wisconsin Local Gov’t Prop. Ins. Fund v. Lexington Ins. Co., 840 F.3d 411, 415 (7th Cir. 2016). 

This is because “arbitration is a matter of contract and a party cannot be required to submit to 

arbitration any dispute which he has not agreed so to submit.” Duthie v. Matria Healthcare, Inc., 

540 F.3d 533, 536 (7th Cir. 2008) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 

83 (2002)); see also Salsitz v. Kreiss, 198 Ill.2d 1, 13, 761 N.E.2d 724, 731 (2001) (“The parties 

to an agreement are bound to arbitrate only those issues they have agreed to arbitrate, as shown 

online service”), but, in reality, the scope of each agreement covers a defined and overlapping set of 

services. (See Ajira v. Chase, No. 20-cv-4428, dkt. 16 at p. 2 (defining “Online Service”) and 116 of 244

(N.D. Ill. Oct. 14, 2020.)

11 Chase’s brief begins with an impressive footnote. (Sha Poppin Mot. at 1 n.1.) But its cases, which 

deal with the DAA, have no application here because they pertain to claims expressly and obviously 

covered by that agreement (i.e., ones concerning the parties’ deposit accounts). See, e.g., Clements v. 

JPMorgan Chase Bank, N.A., No. 18 C 660, slip op. at 3–14 (N.D. Ill. Dec. 12, 2018) (case about 

“allegedly fraudulent debts against [plaintiff’s] checking account”); Dill v. JPMorgan Chase Bank, N.A., 

No. 19 CIV. 10947 (KPF), 2020 WL 4345755, at *7 (S.D.N.Y. July 29, 2020) (case about checks 

purchased from deposit accounts); Sunmonu v. Chase Bank, N.A., No. CV GLR-18-1695, 2019 WL 

1258788, at *1 (D. Md. Mar. 19, 2019) (case about Chase’s alleged failure to deliver funds from 

plaintiff’s deposit account); Johnson v. JP Morgan Chase Bank, N.A., No. EDCV172477JGBSPX, 2018 

WL 4726042, at *1 (C.D. Cal. Sept. 18, 2018) (case about overdraft fees on deposit account); Sanchez v. 

J.P. Morgan Chase Bank, N.A., No. 14-20468-CIV-MORENO, 2014 WL 4063046, at *1 (S.D. Fla. Aug. 

15, 2014) (case about Chase’s lowering limits on debit card tied to deposit account); Scott v. JPMorgan 

Chase & Co., No. 13 CIV. 646 KPF, 2014 WL 338753, at *1 (S.D.N.Y. Jan. 30, 2014), aff’d, 603 F. 

App’x 33 (2d Cir. 2015) (case about overdraft protection services and fees related to deposit account); 

Novak v. JP Morgan Chase Bank, NA, No. 06-14862, 2008 WL 907380, at *1 (E.D. Mich. Mar. 31, 2008) 

(case about unauthorized withdrawafrom deposit account).

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by the clear language of the agreement and their intentions expressed in that language. An 

arbitration agreement will not be extended by construction or implication.”). Thus, while 

arbitration provisions using broad terms—such as “relating to” or “arising from”—are 

interpreted generously, those terms are necessarily bound by the objects to which they apply. 

Huron Consulting Grp. Inc. v. Gruner, No. 17 C 6042, 2018 WL 572709, at *8 (N.D. Ill. Jan. 24, 

2018) (citing and discussing Bass v. SMG, Inc., 328 Ill. App. 3d 492, 498, 765 N.E.2d 1079, 

1085 (1st Dist. 2002); Davis v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014)). In other words, 

“relating to” or “arising from” language extends only to disputes that have their “origin or 

genesis” in the subjects to which that language refers. Gore, 666 F.3d at 1033. 

While the DAA’s arbitration agreement is broad, it is—by its terms—broadly related to 

the DAA and, thus, does not cover claims related to Chase’s administration of a federal loan 

program, which has its own set of terms and requirements. The Seventh Circuit’s decision in 

Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657 (7th Cir. 2002) helps explain why. In 

Rosenblum, the plaintiff sold his business to the defendant via a purchase agreement and, as a 

condition precedent to the sale, executed an employment agreement that allowed the plaintiff to 

continue working for his old business. Id. at 660. The employment agreement—but not the 

purchase agreement—included an arbitration clause, which broadly provided that “any matter in 

dispute under or relating to this Agreement shall . . . be finally resolved by binding arbitration.” 

Id. The defendant failed to make the payments required under the parties’ purchase agreement, 

so the plaintiff sued. Id. The defendant moved to dismiss in favor of arbitration. Id. at 661. The 

district court granted the motion, concluding that “[t]he arbitration provision here is a broad one: 

it covers all matters relating to the employment agreement.” Id. (citation omitted). Plaintiff 

appealed. 

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The Seventh Circuit reversed. On review, the appellate court acknowledged the two 

agreements were “related;” after all, one agreement was a condition precedent to the other, and 

the plaintiff would not have been employed or sought employment by the defendant but for the 

purchase agreement. Id. at 663. Still, the court found that the employment agreement’s 

“arbitration clause applie[d], by its terms, to ‘any matter in dispute under or relating 

to this Agreement’ . . . [and] therefore cover[ed] all aspects of Mr. Rosenblum’s employment 

relationship with Travelbyus.” Id. at 664 (emphasis in original). Thus—and despite the 

relationship between the purchase and the plaintiff’s employment—the appellate court held that 

the employment agreement’s “arbitration clause [was] not susceptible to an interpretation that 

include[d] [the purchase agreement], which [had] nothing to do with Mr. Rosenblum's 

employment with Travelbyus. To include Mr. Rosenblum’s claims within the scope of [the] 

arbitration clause would expand the operation of that clause beyond its express terms and beyond 

the intent of the parties.” Id. 

This Court addressed a similar situation in Nucap Industries, Inc. v. Robert Bosch LLC, 

No. 15-CV-2207, 2015 WL 4038714 (N.D. Ill. July 1, 2015) (Gottschall, J.). That case involved 

an intellectual property dispute between two parties that had previously entered into a number of 

purchase agreements, which contained arbitration clauses utilizing broad “arising out of or 

relating to” language. Id. at *1–2, 4. The defendant moved to compel arbitration based on those 

agreements. Id. The court acknowledged that the purchase orders were “related” to the terms 

underlying the intellectual property agreement, because “but for the former, the latter never 

would have existed.” Id. at *7. Nevertheless, the court declined to compel based on this “causal 

link” between the two because, as in Rosenblum, “there [was] no indication that the parties 

intended” their agreements governing the purchase orders should encompass down-the-road 

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agreements relating to separate matters. Id. (citing Rosenblum, 299 F.3d at 663). 

Several other courts have reached the same result: Where an arbitration agreement 

broadly covers any claims or disputes “relating to” a particular agreement, courts will enforce 

those agreements by their terms and, as a result, only apply them to disputes “relating to,” 

“regarding,” or “arising out of” that agreement—but not to claims concerning a different 

agreement altogether. See, e.g., Huron Consulting Grp., 2018 WL 572709, at *10 (finding that 

the relevant arbitration agreement provided “no indication of the parties’ intent to arbitrate 

claims for breach of [a separate agreement],” and reasoning that the presence of allegations 

regarding the “breach of [the first agreement, which] may include similar factual allegations to 

[a] claim for breach of the [second agreement] [did] not mean that the arbitration clause in the 

[first] agreement necessarily extends to both.”); Shriner v. Signal Fin. Co., 92 F. App’x 322, 326 

(7th Cir. 2003) (citation omitted) (discussing similar application of Indiana law, where court of 

appeals addressed clause covering “[a]ny controversy or claim arising out of or relating to this 

Agreement” and “ found that the provision governed disputes arising out of the agreement, [but] 

not the parties’ employment relationship in general.”); Fit Tech, Inc. v. Bally Total Fitness 

Holding Corp., 374 F.3d 1, 9–10 (1st Cir. 2004) (finding that broad arbitration clause covering 

“[a]ny controversy or claim arising out of or relating [an] Employment Agreement” only referred 

to, and thus required arbitration of, disputes arising under or related to that agreement); Snyder v. 

Wells Fargo Bank, N.A., No. 11 CIV. 4496 SAS, 2011 WL 6382707, at *4 (S.D.N.Y. Dec. 19, 

2011) (“[J]ust because the IRA agreement contains a broad arbitration clause, does not mean that 

Snyder can be forced to arbitrate claims arising out of a related but distinct contract.”). See also 

Slaughter v. Nat’l R.R. Passenger Corp., No. 19-CV-2920 (APM), 2020 WL 2527193, at *5 

(D.D.C. May 18, 2020) (rejecting as untenable argument that broad arbitration clause covered 

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18

any possible dispute between the parties). 

Here, as in Rosenblum and Nucap, the DAA’s arbitration clause covers “any claims or 

disputes arising from or relating to this agreement.”12 (Sha Poppin Mot. at 14 (emphasis added).) 

Thus, while the DAA’s arbitration clause undoubtedly covers “all aspects” of Plaintiffs’ deposit 

accounts, Chase identifies nothing other than a “causal link” between it and the claims at issue 

here, which concern Chase’s administration of a federal loan program under a completely 

different set of terms and obligations. Nucap, 2015 WL 4038714, at *7. Neither the DAA nor its 

arbitration clause says anything about its application to other services offered by Chase, much 

less Chase’s obligation to comply with the rules and regulations concerning a federal loan 

program (aimed at addressing fallout from a global pandemic) that hadn’t yet come into 

existence. Chase identifies no reason for the Court to balloon the arbitration clause beyond its 

express terms and, as such, its reach is limited to claims “related to” the DAA or Plaintiffs’

deposit accounts. And because the PPP loan application is a separate agreement with separate 

terms, it is not part of, nor does it “relate to” services pursuant to the DAA. 

Nothing raised by Chase suggests a different result. For example, Chase points out that 

“but for [its deposit] account, [Plaintiff] would not and could not have applied for a PPP loan 

through Chase.” (Sha Poppin Mot. at 14.) This mirrors the arguments rejected in Rosenblum and 

Nucap where, like here, the defendants argued that arbitration should be compelled because the 

agreements with arbitration clauses came first; were, strictly speaking, “but for” causes of the 

plaintiffs’ claims (i.e., they formed the relationship between the two parties); and included 

12 There are other terms of the arbitration clause, but all are narrower and describe aspects of the 

DAA and its related services. (See dkt. 60-1 at p. 30 of 237.) Consistent with Plaintiffs’ expectations, 

(Hawkins-Armstrong Decl. ¶ 7; Mehta Decl. ¶ 6), none attempt to reach beyond the deposit account or its 

related agreement. 

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arbitration agreements that covered all claims “related to” the parties’ prior agreements. But 

here, as in Rosenblum and Nucap, the agreements relating to the PPP loan application made no 

reference to the DAA (or any other loan program or product), and the terms of the PPP

application—just like the communications that Chase sent to Plaintiffs about their applications, 

(Ex. A to Hawkins-Armstrong Decl.; Ex. A to Mehta Decl.)—do not include an arbitration 

clause.13 Thus, because the DAA is, by its terms, limited to disputes “relating to or arising from” 

that agreement, it is not “broad enough to encompass” Plaintiff’s claims relating to the PPP. 

Nucap, 2015 WL 4038714, at *5 (citing Gore, 666 F.3d at 1033). 

These same considerations apply to Chase’s one other argument, where it notes that 

certain of Plaintiffs’ claims allege supporting details about the parties’ banking relationship. 

(Mot. at 15.) The Fourth Circuit’s decision in Wachovia Bank, Nat. Ass’n v. Schmidt, 445 F.3d 

762 (4th Cir. 2006) is also instructive on this issue. In that case, the parties “had two distinct 

relationships:” one relating to a loan, and one relating to an investment, for which the loan was 

ultimately used. Id. at 768. While there was undoubtedly crossover between the roles, the court 

noted that the bank’s “two roles as lender and adviser were distinct.” Id. The loan document 

included a broad arbitration clause, which the bank tried to enforce when Schmidt brought 

claims relating to its provision of financial advice. Id. at 765. But because “the Schmidt 

Defendants’ state-court claims derive[d] solely from actions Wachovia took as a financial 

advisor,” rather than from the defendants’ provision of the loan, the court affirmed the lower 

court’s refusal to compel arbitration. Id. at 769. The same holds here. Chase played two roles 

13 The terms that applied to Plaintiff’s PPP loan application were limited to the “requirements and 

instructions” for the program provided by the SBA, along with a few “general information” provided by 

Chase. (See Ex. B to Hawkins-Armstrong Decl.) 

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20

with respect to Plaintiffs: deposit account provider and processor for their PPP loan applications. 

Because these roles are distinct and Plaintiffs’ claims relate solely to the latter, the fact that PPP 

loan funds were supposed to find their way into a deposit account (just as Schmidt used 

Wachovia’s loans in connection with Wachovia’s financial advice) does not make this claim 

“about” that account or services “related to” that account. 

In sum, because Plaintiffs’ claims regarding Chase’s handling of PPP loan applications 

do not “relate to” the DAA or their deposit accounts, Chase lacks any basis to compel arbitration 

based on the DAA’s arbitration clause. 

CONCLUSION 

For all the reasons discussed herein, the Court should deny Chase’s motion to compel 

arbitration. 

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21

Respectfully submitted, 

SHA-POPPIN GOURMET POPCORN LLC, 

individually and on behalf of all others similarly 

situated,

Dated: November 2, 2020 By: /s/ Benjamin Thomassen 

 One of Plaintiff’s Attorneys 

Jay Edelson 

jedelson@edelson.com 

Benjamin H. Richman 

brichman@edelson.com 

Christopher L. Dore 

cdore@edelson.com 

Ari J Scharg 

ascharg@edelson.com 

Benjamin S. Thomassen 

bthomassen@edelson.com 

Daniel J. Schneider 

dschneider@edelson.com 

EDELSON PC

350 North LaSalle Street, 14th Floor 

Chicago, Illinois 60654 

Tel: 312.589.6370 

Fax: 312.589.6378 

Counsel for Plaintiff Sha Poppin Gourmet Popcorn 

LLC and the Putative Class 

AJIRA AI LLC, individually and on behalf of all 

others similarly situated,

Dated: November 2, 2020 By: /s/ Kasif Khowaja 

 One of Plaintiff’s Attorneys 

Kasif Khowaja 

THE KHOWAJA LAW FIRM LLC

8 South Michigan Avenue, Suite 2600 

Chicago, Illinois 60603 

Tel: 312.201.0575 

kasif@khowajalaw.com 

Matthew R. McCarley (Pro Hac Vice Pending) 

Case: 1:20-cv-02523 Document #: 71 Filed: 11/02/20 Page 28 of 29 PageID #:689
22

Texas Bar No. 24041426 

FEARS NACHAWATI, PLLC

5473 Blair Road 

Dallas, Texas 75231 

Tel: 214.890.0711 

Fax: 214.890.0712 

mmccarley@fnlawfirm.com 

Counsel for Plaintiff Ajira AI LLC and the Putative 

Class 

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