IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIAM BIERMANN, )

)

Plaintiff, )

)

v. ) Case No.: 20 C 2986

)

COMCAST CABLE )

COMMUNICATIONS )

MANAGEMENT, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

William Biermann is a former employee of Comcast Cable Communications 

Management, LLC. He claims Comcast unlawfully terminated his employment because 

of his age. Comcast has filed a motion to compel Biermann to arbitrate his age 

discrimination claim and to stay or dismiss the present lawsuit. At issue is whether the 

parties entered into a valid and enforceable arbitration agreement. 

Background

Biermann worked for Comcast from approximately 1988 to 2019. In April 2019, 

Comcast involuntarily terminated Biermann's employment. Biermann contends that 

Comcast terminated his employment because of his age, in violation of the Age 

Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. 

In May 2020, Biermann sued his former employer, Comcast, for employment 

discrimination in violation of the ADEA. Comcast contends that Biermann is obligated to 

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arbitrate his claims pursuant to the claimed arbitration agreement. 

On December 2, 2013, Comcast mailed its employees a letter and a 12-page

brochure to inform them about its new alternative dispute resolution program, Comcast 

Solutions, which included a mandatory arbitration agreement. The letter and the 

brochure announced to employees that Comcast was introducing a new program to 

address workplace legal issues. It offered employees who did not want to participate in 

the program an option to opt out. The December 2 letter stated as follows: 

If you decide you would like to participate in the program, you don't have 

to do anything. You will be automatically enrolled. 

If you prefer not to participate in the program, all you need to do is 

complete an "Opt Out" form, available on the Comcast Solutions page on 

TeamComcast, and return it no later than January 7, 2014 . . . . 

Def.'s Motion, Ex. A (emphasis omitted). In support of its present motion, Comcast has 

provided an affidavit from Vice President of Labor & Employee Relations Lynn Collins

stating that on December 2, 2013, Comcast mailed the letter and the Comcast Solutions 

brochure to all Illinois employees, including Biermann. Collins states that the company's 

records reflect that it sent the brochure to Biermann's correct mailing address. Id., Ex. E

¶¶ 5-6. A copy of the envelope addressed to Biermann is attached to Comcast's motion 

as Exhibit D. Biermann did not send in the opt-out form.

In addition, Collins says that on December 31, 2013, Comcast sent its employees

additional electronic correspondence regarding the Comcast Solutions program. A copy 

of the December 31 e-mail is attached to Comcast's motion as Exhibit C. According to 

Collins' affidavit, the e-mail was sent to Illinois employees, including Biermann, to the email addresses Comcast assigned to them during their employment. Def.'s Motion, Ex. 

E ¶ 10. The e-mail reminded the employees about the new program, Comcast 

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Solutions, and contained a hyperlink to the program brochure. Def.'s Motion, Ex. C. 

The e-mail also reminded employees that if they did not wish to participate in the 

program, they needed to complete an opt out form by the deadline. Id. Biermann did 

not return the opt-out form by the deadline. Def.'s Motion, Ex. E ¶ 12.

Biermann contends that his failure to return the opt-out form does not constitute 

acceptance because he was not aware of the Comcast Solutions materials and does 

not remember receiving them. He has provided his own affidavit in which he avers that 

he "do[es] not know whether the Comcast Solutions brochure was mailed to [his] home 

prior to January 7, 2014." Pl.'s Response, Ex. 1 ¶ 7. He also states that he has no 

recollection of receiving or opening the December 31 e-mail. Id. ¶ 8.

As indicated, Biermann did not opt out of the Comcast Solutions program or, in 

particular, the arbitration requirement. Comcast asserts that as a result, he accepted 

the terms of the alternative dispute resolution program, including the agreement to 

arbitrate disputes. 

Discussion

The Federal Arbitration Act (FAA) requires enforcement of valid arbitration 

agreements. 9 U.S.C. § 4. A motion to compel arbitration should be granted if the party 

seeking arbitration shows that (1) the parties agreed to arbitrate and (2) the dispute falls 

within the arbitration agreement. Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 297

(2010). 

Before compelling arbitration, a court must determine whether a valid arbitration 

agreement exists. Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530

(2019) (citing 9 U.S.C. § 2). An agreement to arbitrate is a contract; accordingly, 

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whether the parties entered into a valid agreement is a matter of state contract law. 

Hawkins v. Aid Ass'n for Lutherans, 338 F.3d 801, 806 (7th Cir. 2003). 

Comcast contends that an agreement to arbitrate was created via Biermann's 

tacit acceptance of the Comcast Solutions program, including the arbitration 

requirement. Biermann does not contend that his claim in this case falls outside the 

scope of the arbitration clause; rather, he argues that no valid binding arbitration 

agreement was created. His primary argument is that he never accepted Comcast's 

offer by failing to opt out because he was not aware of the arbitration materials that 

Comcast mailed on December 2, 2013 or the materials e-mailed on December 31, 

2013. In support, Biermann has offered an affidavit in which he states: 

I do not know whether the Comcast Solutions brochure was mailed to my 

home prior to January 7, 2014. However, I am certain that I never saw 

the Comcast Solutions brochure until after the termination of my 

employment in April, 2019. 

I have reviewed the e-mail dated December 31, 2013, sent to "Comcast 

Solutions" and attached as Exhibit C to Comcast's Motion to Compel 

Arbitration. I have searched my memory and my record and I have no 

recollection of receiving or opening this email while I was employed by 

Comcast.

Pl.'s Response, Ex. 1 ¶¶ 7-8. 

In support of its contention that an agreement was formed, Comcast relies upon 

the well-settled rule that mail properly addressed creates a presumption of delivery to 

the addressee, in this case Biermann. Hagner v. United States, 285 U.S. 427, 430

(1932); Boomer v. AT&T Corp., 309 F.3d 404, 415 (7th Cir. 2002); Pohlman v. NCR 

Corp., No. 12 C 6731, 2013 WL 3776965, at *3 (N.D. Ill. July 17, 2013). On this point, 

Comcast offers a copy of the postage-paid envelope that it sent to Biermann on 

December 2, 2013, enclosing Comcast Solutions letter and brochure. Def's Motion, Ex. 

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D. The copy of the envelope includes Biermann's correct mailing address. As indicated 

earlier, Comcast also offers a sworn declaration of its Vice President of Labor & 

Employees Relations, who states that the copy submitted to the Court is a "true and 

accurate copy of the envelope" sent to Biermann in December 2, 2013, with the 

Comcast Solutions brochure, and that it was Comcast's regular practice to generate and 

preserve a copy of the envelope. Def's Motion, Ex. E ¶ 8. This is sufficient to invoke 

the presumption of delivery. The presumption of delivery that applies to Comcast's

December 2 mailing also applies to its December 31 e-mail. See Ball v. Kotter, 723 

F.3d 813, 830 (7th Cir. 2013) (applying the presumption of delivery to properly sent emails). 

Biermann has not sufficiently rebutted the presumption of delivery. He does not 

contend that his street address listed on the regular mail envelope or his e-mail address 

are incorrect. Nor does he deny receiving the mailing or e-mailing from Comcast. 

Rather, he states only that he does not recall receiving these items or opening them. 

These statements by Biermann are insufficient to rebut the presumption of 

delivery. As the Seventh Circuit explained in Tinder v. Pinkerton Security, 305 F.3d 728

(7th Cir. 2002), an employee cannot rebut the presumption of delivery simply by stating 

that he does not recall receiving the documents, when the employer has offered 

evidence that it properly sent them. Id. at 735-36; see also Pohlman, 2013 WL 

3776965, at *4-5. In Tinder, the plaintiff submitted an affidavit in which she stated that 

she did not recall receiving or seeing the arbitration materials but did not deny receiving 

the correspondence. Tinder, 305 F.3d at 736. The Seventh Circuit held that the 

plaintiff's lack of recollection of receipt of the arbitration materials, without any 

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supporting evidence, was insufficient to create a genuine factual dispute regarding 

whether there was, in fact, an agreement to arbitrate. Id. The same is true with regard 

to the December 31 e-mail.

For these reasons, the Court concludes that Comcast's mailing and e-mailing of 

the Comcast Solutions letter and brochure was a valid offer, and Biermann's silence

following delivery of the letter and brochure (or, in the e-mail, the links to the brochure)

constitutes acceptance. See, e.g., First Nat. Bank of Chi. v. Atl. Tele-Network Co., 946 

F.2d 516, 519 (7th Cir. 1991); Boomer v. AT&T Corp., 309 F.3d 404, 415 (7th Cir. 

2002); Gupta v. Morgan Stanley Smith Barney, LLC, 934 F.3d 705, 714 (7th Cir. 2019). 

In Gupta, applying the Illinois law to facts very similar to those in this case, the Seventh 

Circuit held that silence and inaction in response to an e-mailed arbitration agreement 

constituted acceptance of the agreement to arbitrate. Gupta, 934 F.3d at 713-14. The 

court concluded that the plaintiff's silence after he was given a reasonable opportunity to 

opt out, along with his continued employment, amounted to acceptance of the 

agreement to arbitrate. Id. The same is true in this case. Biermann's silence and 

inaction, combined with his continued employment, constituted acceptance of 

Comcast's arbitration agreement. 

With regard to the December 31 e-mail, Biermann also argues that because the 

e-mail did not refer to the arbitration terms but instead contained only a hyperlink, it did

not constitute a valid offer. Even if this were so, it would not make a difference; as the 

Court has indicated, an agreement was formed by Biermann's tacit acceptance of the 

offer contained in the December mailing. But that aside, Biermann's argument 

regarding hyperlinks lacks merit. In analyzing online contracts, the Seventh Circuit has

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concluded that Illinois' general contract principles also govern the contracts formed 

online. Sgouros v. TransUnion Corp., 817 F.3d 1029, 1034 (7th Cir. 2016). The court 

in Sgouros reasoned that online agreements, just like any other agreements, should 

place a reasonable person on notice of all the terms and conditions of an agreement.

Sgouros, 817 F.3d at 1035. And the court recognized that where the terms are 

contained in a hyperlink, courts generally look at whether the online communications 

direct the recipients to read them. Id. Here, though the body of the e-mail did not 

contain the arbitration terms but instead only a hyperlink to brochure containing those 

terms, the e-mail clearly directed the recipients to read the terms and reminded them

about their right to opt out of the Comcast Solutions Program by the deadline. The 

December 31 e-mail stated: 

Information regarding a new program called Comcast Solutions was 

recently mailed to your home address. To ensure you received this 

important program information, we are sending this reminder email along 

with a link to the program brochure that you should have received in hard 

copy at your home. . . . 

Def.'s Motion, Ex. C. These statements, combined with the hyperlink, were

sufficient to place a reasonable person on notice that the hyperlink contained 

important terms and conditions. 

Finally, Biermann contends that the Comcast Solutions program, including the 

arbitration requirement, is procedurally unconscionable because he was not made 

aware of the program and his ability to opt out. Under Illinois law, procedural 

unconscionability refers to circumstances when a contract term is "so difficult to find, 

read, or understand that the plaintiff cannot fairly be said to be have aware he was 

agreeing to it." Razor v. Hyundai Motor Am., 222 Ill. 2d 75, 101, 854 N.E.2d 607, 623 

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(2006). In deciding whether an arbitration provision is procedurally unconscionable,

Illinois courts consider all the circumstances surrounding the agreement, including 

whether each side had a reasonable opportunity to review and understand its terms. 

Tortoriello v. Gerald Nissan of N. Aurora, Inc., 379 Ill. App. 3d 214, 228, 882 N.E.2d 

157, 171 (2008) (citing Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1, 857 N.E.2d 250 

(2006)). Here there is no question that Biermann was presented at least twice with the 

opportunity to review the Comcast Solutions information. He cannot sustain a 

contention that he could not find, read, or understand the Comcast Solutions program 

and his ability to opt out. His contention that the Comcast Solutions program is 

procedurally unconscionable lacks merit.

Conclusion 

For these foregoing reasons, the Court grants Comcast's motion to compel 

arbitration and stays further proceedings pending arbitration of Biermann's claims. The 

Clerk is directed to administratively terminate the case. The parties are directed to file a 

joint status report on April 30, 2021.

Date: November 23, 2020 ________________________________

MATTHEW F. KENNELLY

 United States District Judge 

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