The Honorable Sandra Day O’Connor, Associate Justice of 

the United States Supreme Court (Ret.), sitting by designation

pursuant to 28 U.S.C. § 294(a).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3619

QUINTEN E. SPIVEY,

Plaintiff-Appellant,

v.

ADAPTIVE MARKETING LLC,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:07-CV-00779—Michael J. Reagan, Judge.

ARGUED MAY 18, 2010—DECIDED SEPTEMBER 20, 2010

Before O’CONNOR, Associate Justice, and KANNE and 

ROVNER, Circuit Judges.

O’CONNOR, Associate Justice (Ret.). Quinten E. Spivey

challenges the district court’s grant of summary judgment against him on his claims against Adaptive Mar-
2 No. 09-3619

keting for breach of contract and unjust enrichment.

Because we find that no reasonable jury could find in

favor of Spivey, we affirm the judgment of the district

court.

I

Appellant Spivey called a telemarketing number in

January 2003 and ordered an Atkins diet product. This

dispute arises from the rest of that telephone conversation.

A.

Adaptive has produced a partial recording of what it

alleges is the conversation between the telemarketer and

Appellant. According to the district court, the recording

is as follows:

Telemarketer: Thank you for your order. We’re

sending you a risk free 30-day membership to

HomeWorks, offering hundreds of dollars in savings

at stores like the Home Depot, K-Mart, Linens &

Things and many more. After 30 days, the service is

extended to a full year for just $8.00 per month, just

$96.00 annually. Billed in advance as HomeWorks

with the credit card you are using today. You will

be charged an annual fee at the end of your 30-day

trial period and at the beginning of each new membership year. If you want to cancel, simply call the

toll-free number that appears in your kit in the first

30 days and you will not be billed. If you don’t save
No. 09-3619 3

hundreds of dollars in your first year, just call and

you’ll get a full refund. So look for your kit in your

mail is that okay?

Male: Okay.

Spivey v. Adaptive Mktg., LLC, 660 F. Supp. 2d 940, 943-44

(S.D. Ill. 2009). Adaptive alleges that the male in the

conversation was Spivey. Spivey’s credit card statements show a charge of $96.00 by HomeWorks in

March 2003, a charge of $149.95 by HomeWorks due in

January 2004, charges of $199.95 in January 2005 and

January 2006, and an additional charge of an undetermined amount in January 2007. See Appellee’s Resp.

App. (RA) at 65-69. After Spivey called to protest the

January 2007 charge, $179.70 was refunded. Pl.’s Resp. to

Def.’s First Set of Interrogs. at 3, Appellant’s Appendix

[hereinafter App.] at 56.

In his first amended complaint, Spivey claimed that

he did not recall participating in the conversation and

could not confirm that the voice in the recording was

his. In later filings, Spivey admitted that the male voice

in the recording sounds like his voice with a cold, but

maintained that the short length of the male’s statement prevented him from conclusively determining

whether the voice was his. He continued to maintain

that he did not recall taking part in the conversation. Pl.’s

Resp. to Def.’s First Set of Reqs. for Admis. at 1, RA at 70.

The complaint also avers that Spivey did not receive

a “welcome kit” from Adaptive, as discussed in the

conversation, or, that if a welcome kit was delivered to

his home, it was designed to look like junk mail so that
4 No. 09-3619

he discarded it without opening it. In a later deposition, Appellee’s attorneys extensively questioned Spivey

about the welcome kit, as detailed below:

Q. Can you confirm or deny the welcome kit and the

terms and conditions contained in there that you

talk about in the other part of your Complaint?

A. Can I confirm or deny—

Q. That you received them.

A. I have no record of receiving them. No knowledge of receiving them.

Q. My question is, can you confirm or deny that you

received them? . . .

A. What I can confirm is that I do not have a file that

contains anything from Adaptive, and that it is

my general practice to open and review all the

mail that comes to my home. That’s—that’s all

I can confirm.

. . . .

Q. Can you tell me I did not receive that piece of mail?

A. I can tell you I did not receive that piece of mail.

Q. Okay. It didn’t show up at your house, and you

threw it away?

A. I do not believe that I did or would have done that.

Q. Okay. It’s your testimony and you’re swearing

under oath—you are taking the oath seriously,

I believe that. I just want to make sure I know

exactly what you’re saying. You’re telling me you
No. 09-3619 5

did not receive it. You’re not telling me I don’t

remember receiving it. Those are two different

things, in my mind.

A. I don’t know if I can answer the question any

better than that. I have no recollection, no record

of receiving it.

Dep. of Quinten E. Spivey, July 9, 2009 at 29-31 [hereinafter

Spivey Dep.], App. at 430-32; see also Spivey Dep. at 15,

RA at 75; Spivey Dep. at 36, RA at 80.

In response to Spivey’s testimony about the welcome

kit, Adaptive proffered evidence as to its standard business practices. In an affidavit and deposition, Adaptive’s

Director of Affinity Marketing, Judy Muller, explained

that in instances like this one where Adaptive uses a

third party to market Adaptive’s products, the third party

solicits customers, but Adaptive remains responsible

for fulfillment, including shipment of membership materials and provision of customer service. Muller Aff. at 2,

App. at 514. Specifically, Muller testified that fulfillment

includes sending the customer a “self-mailer, 11 by 17

postcard essentially,” that contains a list of “benefit

providers, a membership card with a membership ID

number, terms and conditions, and an 800 number to

access the program, as well as a website URL to access

the program.” Spivey, 660 F. Supp. 2d at 947 (quoting

Muller Dep.). Muller further testified that after a sale

is loaded into Adaptive’s database, the fulfillment materials are mailed and usually reach the customer in seven

to ten business days. Id. She also explained that Adaptive’s “corporate policy” is to send renewal notices for

annual billings. Id.
6 No. 09-3619

Adaptive provided a copy of the Membership Agreement that was effective for the period in which Spivey

allegedly joined the HomeWorks program and that Adaptive alleges it mailed to Spivey. In relevant part, the

Agreement provides:

TERMS OF MEMBERSHIP AND MEMBERSHIP

AGREEMENT . . . UPON ENROLLMENT, YOU

AGREE TO THESE TERMS AND CONDITIONS.

WE URGE YOU TO READ THIS MEMBERSHIP

AGREEMENT CAREFULLY AND IF YOU HAVE

ANY QUESTIONS, CALL OUR CUSTOMER SERVICE REPRESENTATIVES AT THE NUMBERS

LISTED ON YOUR MEMBERSHIP CARD.

. . . .

2. Membership Term. Your Membership is effective

for a period of twelve months following the membership enrollment date under the annual membership

plan or for the period agreed upon under the installment membership plan authorized by You. . . .

3. Renewal of Membership. Unless You notify Us

that You wish to terminate this Agreement and

cancel Your Membership by following the instructions

below, your Membership will be renewed automatically and You will be charged the then-effective Membership Fee which will appear on your statement.

4. Payment of Enrollment Fee. The payment of your

trial period and Enrollment Fee . . . is made automatically by a direct charge(s) to the billing source

authorized by You in accordance with the payment
No. 09-3619 7

terms to which You agreed. We reserve the right to

increase or decrease the Enrollment Fee for each

renewal Membership Term effective upon renewal

of your Membership. Under the monthly billing

plan, We may, at our discretion, increase the

monthly Enrollment Fee once in any twelve month

period not more than $2.00 per month. . . .

. . . .

7. Entire Agreement. This Agreement contains all of

the Terms of Membership and no representations,

inducements, promises or agreements concerning

the Membership not included in this Agreement

shall be effective or enforceable. . . .

. . . .

9. TERMINATION OF MEMBERSHIP. YOU MAY

TERMINATE THIS AGREEMENT AND YOUR MEMBERSHIP AT ANY TIME BY CALLING US AT THE

TOLL FREE NUMBER ON YOUR MEMBERSHIP

CARD OR BY NOTIFYING US IN WRITING AT

MEMBERSHIP SERVICES, P.O. BOX 24311, OMAHA,

NEBRASKA. YOUR CANCELLATION WILL BE

EFFECTIVE PROMPTLY UPON THE RECEIPT OF

YOUR CANCELLATION NOTICE . . . . Doc. No. 122-2,

VTRU 01697-01698.

Spivey, 660 F. Supp. 2d at 944-45. On these facts and as

detailed below, the district court granted Adaptive’s

motion for summary judgment on all claims.
8 No. 09-3619

B.

The district court first assessed Spivey’s claim that

Adaptive breached an oral contract formed during the

telemarketing call by charging an annual fee in subsequent years higher than the $96 annual charge mentioned in the telemarketing call. In response, Adaptive

pointed to the Written Agreement, which expressly permits increases to the annual enrollment fee. To determine whether Adaptive had breached an oral contract

in charging more than $96 per year, the district court

had to examine whether there was an oral contract that

could have been breached. Citing Illinois law, the court

noted that Spivey, as the party seeking relief from an

alleged breach, bears the burden of establishing both

the existence and terms of the oral agreement. Id. at 945.

The district court noted Spivey’s “reservations” as to

whether the call had in fact occurred, but explained

that “[i]n order for Spivey’s breach of contract claim to

go forward, the Court must assume that the conversation, as memorialized above, occurred and that Spivey

accepted a trial membership in HomeWorks. If Spivey

maintains otherwise, then there was no contract to

breach, and his claim must be dismissed.” Id. at 946. The

court accordingly assumed that the conversation had

occurred and resulted in the following terms:

Spivey agreed to accept a risk-free 30-day membership in HomeWorks, which, after the 30-day trial

period would be extended to a full year for $8.00 per

month, or $96.00 annually. Spivey would be charged

an annual fee at the end of the trial period and at the
No. 09-3619 9

beginning of each membership year. Spivey would not

be charged if he canceled within the trial period and

would receive a full refund if he canceled within

the first year. A kit would be mailed to Spivey. 

Id. The court then turned to the question of whether

Spivey was bound by the terms of the written agreement

that Adaptive allegedly mailed as part of its welcome kit.

In weighing Spivey’s testimony about whether he

received the agreement against Adaptive’s testimony

about its business practices regarding mailing welcome

kits, the district court relied on precedents from this

circuit holding that “[w]here a letter is properly

addressed and mailed, there is ‘a presumption that it

reached its destination in usual time and was actually

received by the person to whom it was addressed,’ ”

Boomer v. AT&T Corp., 309 F.3d 404, 415 n.5 (7th Cir. 2002)

(quoting Hagner v. United States, 285 U.S. 427 (1932)). The

district court relied on the Muller deposition as evidence of Adaptive’s mailing practices. See Godfrey v.

United States, 997 F.2d 335, 338 (7th Cir. 1993) (holding

that a presumption of receipt exists where there is “proof

of procedures followed in the regular course of operations which give rise to a strong inference that the [correspondence] was properly addressed and mailed”).

The deposition combined with Adaptive’s presentation

of Spivey’s accurate home address provided to the telemarketer, Spivey’s equivocal deposition responses to

questions asking whether he denied receiving the welcome kit, and Spivey’s failure to contend that he did not

receive the diet product he ordered in the same tele-
10 No. 09-3619

phone call to support a presumption that Spivey received the welcome kit.

The district court then relied on two decisions of this

circuit, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.

1996), and Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th

Cir. 1997), to conclude that Spivey was bound by the

terms of the written agreement because Adaptive invited

acceptance by conduct—in this instance, inaction. The

district court explained, “By not calling the toll-free

number in the first 30 days (or even in the first year)—as

advised by the telemarketer and set forth in the agreement—Spivey accepted the offered services and the

terms and conditions under which they were offered.”

Spivey, 660 F. Supp. 2d at 949. Spivey, the court held,

had a “clear mechanism and reasonable opportunity to

reject” the service, and having failed to do so, he “is

bound by the written terms provided after the transaction.” Id.

The court also noted that the terms of the alleged oral

agreement and the written agreement were not contradictory because the oral agreement did not suggest that

the annual price would be forever static at $96 per year.

The oral agreement’s silence on future increases or decreases, the court held, meant that the written agreement’s provision allowing for the increase of the annual

charge did not contradict the oral agreement. Id. at 950.

Based on its analysis of the existence, applicability, and

specific terms of the written agreement, the district court

held that there was no genuine issue of material fact in

dispute, and Adaptive was entitled to summary judgment. Id. The court, however, also provided a second,
No. 09-3619 11

independent theory for dismissing Spivey’s claims: the

voluntary payment doctrine.

Pursuant to the voluntary payment doctrine, a commonlaw doctrine incorporated into Illinois law, “a plaintiff

who voluntarily pays money in reply to an incorrect or

illegal claim of right cannot recover that payment unless

he can show fraud, coercion, or mistake of fact.” Randazzo

v. Harris Bank Palatine, N.A., 262 F.3d 663, 666 (7th Cir.

2001) (citing Smith v. Prime Cable of Chi., 658 N.E.2d 1325,

1329-30 (Ill. App. Ct. 1995)). The district court held that

the doctrine applied to this case because Spivey voluntarily paid credit card charges for HomeWorks in 2003,

2004, 2005, and 2006 and did not challenge any of the

charges when they appeared. Spivey, 660 F. Supp. 2d at

951. The court rejected Spivey’s mistake of fact defense,

which rested on the claim that Spivey believed that

his wife, a school teacher, had made the charges. The

court held Spivey “made no effort to discover the nature

of the charge to his credit card and paid it ‘in silence.’ As

a result, [his claim] does not come within the ‘mistake

of fact’ exception to the voluntary payment doctrine.” Id.

Finally, as relevant to this appeal, the district court

rejected Spivey’s unjust enrichment claim because such

a claim is impermissible where a contract governs the

relationship between the parties, and the voluntary

payment doctrine would preclude payment anyway. Id.

at 952.

The district court entered summary judgment for

Adaptive on all counts, and Spivey appealed.
12 No. 09-3619

Spivey initially filed this suit as a class action, but the dis- 1

trict court dismissed it before a class was certified. See Spivey,

660 F. Supp. 2d at 952-53.

II

The district court’s jurisdiction in this case arose

from 28 U.S.C. § 1332(d)(2)(A), as amended by the Class

Action Fairness Act of 2005, which requires, among

other things, diversity of citizenship among the parties.1

This court has jurisdiction under 28 U.S.C. § 1291, and

because this is a diversity case, we apply Illinois law.

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

We review the district court’s grant of summary judgment de novo, and we must construe all facts and reasonable inferences in the light most favorable to the

non-moving party. Goelzer v. Sheboygan Cty., 604 F.3d 987,

992 (7th Cir. 2010). Summary judgment is appropriate “if

the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to summary judgment as a matter of law.” Fed. R.

Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

A factual dispute is “material” only if the dispute’s resolution might change the outcome of the suit under the

governing law. Stokes v. Bd. of Educ. of the City of Chi., 599

F.3d 617, 619 (7th Cir. 2010); see Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual issue

is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.; Stokes, 599 F.3d at 619.
No. 09-3619 13

Spivey argues that the district court erred: 1) in presuming that Spivey received the written terms from

Adaptive; 2) by finding that the written agreement governed the relationship between the parties; and 3) in

applying the voluntary payment doctrine to bar recovery. Because we decide this case under the voluntary

payment doctrine, we need not address the district

court’s alternative holdings on the existence and implications of an oral and written contract. The voluntary

payment doctrine precludes Spivey from recouping

his 2003-2006 payments to Adaptive under any theory,

and we therefore affirm the district court’s grant of summary judgment for Adaptive.

III

The voluntary payment doctrine has long been recognized in common law and accepted by the Illinois

courts whose jurisprudence we apply in this diversity

action. The doctrine, stated succinctly, maintains that

“[a]bsent fraud, coercion or mistake of fact, monies paid

under a claim of right to payment but under a mistake

of law are not recoverable.” Randazzo, 262 F.3d at 668

(quoting Smith v. Prime Cable of Chi., 658 N.E.2d 1325, 1330

(Ill. App. 1995)); see also Harris v. ChartOne, 841 N.E.2d

1028, 1031 (Ill. App. 2005) (“It has been a universally

recognized rule that absent fraud, duress, or mistake

of fact, money voluntarily paid on a claim of right to

the payment cannot be recovered on the ground that the

claim was illegal.”). The doctrine “applies to any cause

of action which seeks to recover a payment on a claim
14 No. 09-3619

of right, whether that claim is premised on a contractual

relationship or a statutory obligation . . . .” Id.

The Illinois courts have explained that the reason for

the rule is:

quite obvious when applied to a case of payment on a

mere demand of money unaccompanied with any

power or authority to enforce such demand, except

by a suit at law. In such case, if the party would

resist an unjust demand, he must do so at the threshold. The parties treat with each other on equal terms,

and if litigation is intended by the one of whom the

money is demanded, it should precede payment.

When the person making the payment can only be

reached by a proceeding at law, he is bound to make

his defense in the first instance, and he cannot postpone the litigation by paying the demand in silence

or under a reservation of right to litigate the claim,

and afterward sue to recover the amount paid.

Smith, 658 N.E.2d at 1330 (quoting 66 Am. Jur. 2d Restitution & Implied Contracts § 94, at 1035-36 (1973)). As this

court explained in Randazzo, the voluntary payment

doctrine “ensures that those who desire to assert a legal

right do so at the first possible opportunity; this way,

all interested parties are aware of that position

and have the opportunity to tailor their own conduct accordingly.” Randazzo, 262 F.3d at 668.

Adaptive raises the voluntary payment doctrine as an

affirmative defense to Spivey’s claim. In response,

Spivey does not contest that his credit card statements

reflected a charge by HomeWorks Plus in 2003, 2004,
No. 09-3619 15

2005, and 2006; nor does he contest that he made payments to Adaptive via his credit card company in

those years. As the district court noted, the charges,

exemplified by the 2006 charge, were visible on Spivey’s

statement as HomeWorks Plus and provided an accompanying phone number to call about that specific charge.

Spivey, 660 F. Supp. 2d at 951.

In response, Spivey asserts that he paid the charges

under a mistake of fact—a recognized exception to

the applicability of the voluntary payment doctrine. See

Randazzo, 262 F.3d at 668. The mistake Spivey alleges,

however, is not one having to do with the actions of

the Appellee. Spivey claims that he “believed that

HomeWorks Plus was a product that his wife, a school

teacher, had purchased.” Appellant’s Br. at 37. Although

Spivey is certainly correct that “HomeWorks Plus”

bears a similarity to the “homework” often assigned by

teachers, Spivey cannot overcome the voluntary payment defense because he made an erroneous assumption

for four years that could have been easily clarified, as

it ultimately was, by discussing the charge with his wife

and making a call to the phone number provided on

his bill.

The relevant facts regarding the basis for and means

to challenge the HomeWorks charge were neither obscured, nor inaccessible. Goldstein Oil Co. v. Cook Cty., 509

N.E.2d 538, 542 (Ill. App. Ct. 1987) (rejecting plaintiff’s

claim that the voluntary payment doctrine was inapplicable because “the facts were not obscured nor were

they inaccessible as plaintiff claims” and in fact the rele-
16 No. 09-3619

vant information was available “from [plaintiff’s] own

client”); see also Randazzo, 262 F.3d at 667 (explaining that

the voluntary payment doctrine “holds that a person who

voluntarily pays another with full knowledge of the

facts will not be entitled to restitution”). As the district

court noted, the charge by Adaptive provided the name

of the charge as HomeWorks Plus—the name of the

product discussed in the telemarketing phone call—and

provided a telephone number next to the charge for

customers to call. Spivey, 660 F. Supp. 2d at 951.

In the five years during which HomeWorks charges

appeared on Spivey’s credit card bills, “he made no

effort to discover the nature of the charge to his credit

card and paid it ‘in silence.’ To the extent that Spivey

was ignorant of the charges on his credit card statement,

it was because he failed or refused to apprise himself

of that knowledge and he must bear the consequences.”

Id. at 951-52. As the Illinois courts have explained, “[I]t is

no exception to the voluntary-payment doctrine when

the plaintiff makes no effort to ascertain the factual basis

of the [charge] but pays it anyway.” Harris, 841 N.E.2d

at 1032; see also Goldstein Oil Co., 509 N.E.2d at 542.

Where, as here, “the plaintiff’s lack of knowledge could

be attributed to its lack of investigation into the defendant’s claim of liability and the basis upon which the

defendant was seeking the [payment],” Harris, 841

N.E.2d at 1032, the Illinois courts have rejected a mistake

of fact claim. So do we.

We therefore affirm the district court’s grant of summary judgment for Adaptive on the ground that the
No. 09-3619 17

voluntary payment doctrine applies in this case and

precludes Spivey from recovering the payments to

Adaptive.

IV

Because we hold that the voluntary payment doctrine

bars Spivey’s claims, we need not and do not reach

the alternative contract-based grounds for the district

court’s entry of summary judgment for Adaptive. For

the reasons stated above, we affirm the judgment of

the district court.

AFFIRMED.

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