Competent Business-Records Declarations Can Prove Online Arbitration Assent Without Discovery Absent a Genuine Factual Dispute

I. Introduction

In Cody Simensky v. Experian Information Solutions, Inc. (3d Cir. Dec. 29, 2025) (not precedential), the Third Circuit reversed a Western District of Pennsylvania order denying Experian’s motion to compel arbitration and permitting discovery on contract formation. The dispute arose from Cody Simensky’s Fair Credit Reporting Act (“FCRA”) allegations that Experian (and others) “mixed” his credit file with his brother’s and disseminated inaccurate information to third parties.

Experian argued that Simensky enrolled in “CreditWorks,” an online credit-monitoring service offered by Experian Consumer Services (“ECS”), and that the enrollment flow required clicking “Create Your Account” beneath text stating that by clicking, the user “accept[s] and agree[s]” to a hyperlinked “Terms of Use Agreement” containing an arbitration clause. The central issue on appeal was narrow: whether Experian adequately proved contract formation (mutual assent), specifically that Simensky himself created the CreditWorks account, such that arbitration must be compelled under the Federal Arbitration Act (“FAA”).

II. Summary of the Opinion

The Third Circuit held the District Court erred in (1) finding Experian’s declaration insufficient to establish that Simensky created the account and assented to arbitration, and (2) ordering discovery on contract formation. Applying the summary-judgment framework used for motions to compel arbitration when arbitrability is not apparent from the complaint, the court concluded there was no genuine dispute of material fact: Experian’s declarant was competent under Rule 56, and Simensky offered no concrete rebuttal—only speculation that someone else might have used his information. The case was remanded with instructions to grant the motion to compel arbitration.

III. Analysis

A. Precedents Cited

• Young v. Experian Info. Sols., Inc., 119 F.4th 314 (3d Cir. 2024)
  • Used for two key propositions: (1) appellate jurisdiction under 9 U.S.C. § 16(a), and (2) the procedural standard that a motion to compel arbitration is treated like summary judgment under Rule 56 when the complaint does not clearly establish arbitrability.
  • Also cited for limiting discovery: “discovery addressing a motion to compel arbitration is unnecessary when no factual dispute exists as to the existence or scope of the arbitration agreement.”
• Jaludi v. Citigroup, 933 F.3d 246 (3d Cir. 2019)
  • Cited (via Young) for the Rule 56 framing and the “no genuine dispute as to any material fact” standard governing compelled arbitration disputes at the threshold stage.
• Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156 (3d Cir. 2009)
  • Supplies the core FAA test: compel arbitration when (1) a valid agreement exists and (2) the dispute falls within its scope. The panel emphasized only prong (1) was contested.
  • Also supports the choice-of-law approach: state contract law governs agreement formation (here, Pennsylvania).
• Gasbarre Prods., Inc. v. Smith, 270 A.3d 1209 (Pa. Super. Ct. 2022)
  • Reinforces Pennsylvania’s contract-formation elements—manifestation of intent (mutual assent), definite terms, and consideration—framing the dispute as turning on mutual assent.
• Austin v. Experian Information Solutions, Inc., 148 F.4th 194 (4th Cir. 2025)
  • Highly influential persuasive authority: the Fourth Circuit reversed denial of Experian’s motion to compel arbitration based on an employee declaration akin to Dan Smith’s. The Third Circuit relied on Austin to validate that such declarations can establish enrollment date, process, and governing terms without requiring the declarant to witness the consumer’s click.
  • Also cited on reasonable notice/conspicuousness of online terms.
• Lamonaco v. Experian Information Solutions, Inc, 141 F.4th 1343 (11th Cir. 2025)
  • Another persuasive circuit analogue: an unrebutted Experian employee declaration was “competent” evidence satisfying Experian’s initial burden to prove an agreement.
• United States v. Donovan, 661 F.3d 174 (3d Cir. 2011) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)
  • Used to reject “metaphysical doubt” and require a nonmovant to respond with more than conjecture when opposing summary-judgment-type relief.
• In re Asbestos Prods. Liab. Litig. (No. VI), 837 F.3d 231 (3d Cir. 2016) and Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014)
  • Provide the Third Circuit’s formulation that speculative inferences do not create a genuine issue of material fact sufficient to defeat summary judgment.
• James v. Glob. TelLink Corp, 852 F.3d 262 (3d Cir. 2017)
  • Cited for online-contract notice principles, particularly that enforceability of “browsewrap” terms often turns on whether the hyperlink/terms are “reasonably conspicuous.” The panel used it (and Austin) to reject Simensky’s alternative notice challenge.

B. Legal Reasoning

1. Procedural posture: Rule 56 governs.

   Consistent with Young v. Experian Info. Sols., Inc., the court treated the motion to compel as a summary-judgment motion because the complaint did not itself “set forth clearly” that the claims were subject to arbitration. That framework matters because it fixes: (a) the moving party’s evidentiary burden, (b) what qualifies as a “genuine dispute,” and (c) when discovery is warranted.

2. Contract formation is governed by Pennsylvania law; only mutual assent was disputed.

   Applying Kirleis v. Dickie, McCamey & Chilcote, P.C. and Gasbarre Prods., Inc. v. Smith, Experian had to show mutual assent, definite terms, and consideration by a preponderance of the evidence. The District Court effectively accepted that the online flow and terms would establish assent if Simensky created the account; the appeal therefore turned on identity/attribution of the click.

3. Rule 56(c)(4) “personal knowledge” does not require witnessing the consumer’s click.

   The District Court denied the motion because the declarant (ECS Director Dan Smith) had “no firsthand knowledge” that Simensky created the account. The Third Circuit rejected this as an overly demanding view of Rule 56(c)(4). The panel emphasized Smith’s role supporting enrollment, his familiarity with the enrollment data captured, and his reliance on business records maintained in the ordinary course. That foundation was enough to testify competently to (i) what the enrollment process required, (ii) the membership details recorded for Simensky, and (iii) what terms were presented at the relevant time.

   The court aligned itself with the approach taken by the Fourth and Eleventh Circuits in Austin v. Experian Information Solutions, Inc. and Lamonaco v. Experian Information Solutions, Inc, treating such declarations as adequate proof of online enrollment and assent when unrebutted.

4. Speculation about fraud/third-party account creation is not a “genuine dispute.”

   Critically, Simensky did not deny opening the CreditWorks account; the District Court inferred a denial from his citations to other cases. The Third Circuit held that, under United States v. Donovan (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.), a nonmovant must do more than raise “metaphysical doubt.” Under In re Asbestos Prods. Liab. Litig. (No. VI) (quoting Halsey v. Pfeiffer), speculative inferences cannot defeat summary-judgment-type relief.

   On this record, the possibility that someone else used Simensky’s personal information to enroll was conjecture without supporting facts. Without a factual rebuttal (e.g., affidavit denying enrollment, evidence of compromised credentials, proof of impossible location/time, etc.), no triable issue existed.

5. No discovery absent a factual dispute; notice challenge also fails.

   Because there was no genuine dispute about the existence of the agreement, discovery was “unwarranted” under Young v. Experian Info. Sols., Inc.. Separately, the court rejected an alternative argument that the website failed to provide sufficient notice of the terms, pointing to the conspicuous on-page disclosure and hyperlink, relying on Austin v. Experian Information Solutions, Inc. and comparing with the notice-focused discussion in James v. Glob. TelLink Corp.

C. Impact

• Higher bar for “identity-of-clicker” challenges without evidence.

  The decision signals that plaintiffs resisting arbitration in online-enrollment cases must offer competent, specific rebuttal evidence—not insinuations that someone else might have enrolled using their information. Mere theoretical fraud possibilities will not justify denying a motion to compel or authorizing discovery.

• Affidavits grounded in enrollment operations and business records are likely sufficient.

  The opinion reinforces a practical evidentiary pathway for companies: a declaration from an operations custodian with familiarity with enrollment mechanics, coupled with business-record extracts and screenshots/representations of the interface and terms in effect at the time, can carry the movant’s burden.

• Discovery on formation is constrained under the FAA when the record is one-sided.

  By tying discovery limits to the absence of a “genuine dispute,” the opinion supports early resolution of arbitration motions and reduces the ability to use discovery as leverage where the opponent cannot identify a concrete factual conflict.

• Convergence with other circuits in CreditWorks arbitration litigation.

  Although nonprecedential, the Third Circuit’s explicit reliance on Austin and Lamonaco contributes to an emerging cross-circuit consensus about the adequacy of Experian-style enrollment declarations and online notice in this product context.

IV. Complex Concepts Simplified

Motion to compel arbitration treated like summary judgment (Rule 56)

When arbitrability is not clear from the complaint, the court evaluates the motion like summary judgment: the movant must show there is no genuine dispute of material fact that an arbitration agreement exists and covers the dispute.

“Personal knowledge” in affidavits (Rule 56(c)(4))

“Personal knowledge” can include knowledge gained through one’s job responsibilities and review of business records. It does not always require eyewitness observation of the underlying event (like physically seeing a user click a button).

Mutual assent

The parties must objectively indicate agreement to the contract. In online settings, clicking an “I agree”-type button after being presented with terms (or a conspicuous link to them) commonly supplies assent.

Browsewrap vs. clickwrap (online-contract notice)

“Clickwrap” typically requires an affirmative click to accept terms; “browsewrap” attempts to bind users through passive website use. Courts scrutinize whether terms (or a hyperlink) were reasonably conspicuous and whether the user took an action that objectively manifests assent.

“Metaphysical doubt” / speculation

A party cannot defeat summary judgment by suggesting hypothetical alternatives without evidence. The opponent must point to concrete facts that create a real dispute requiring a hearing or trial.

V. Conclusion

The Third Circuit’s decision centers on an evidentiary and procedural rule with broad practical consequences in online arbitration disputes: a competent declaration grounded in enrollment operations and business records can establish account creation and assent to arbitration, and courts should not permit discovery or deny arbitration based on speculative doubts about who clicked “Create Your Account.” Even as a nonprecedential disposition, the opinion meaningfully aligns Third Circuit practice with parallel Fourth and Eleventh Circuit CreditWorks decisions, strengthening the enforceability of well-designed, conspicuously presented online arbitration agreements when the opposing party offers no factual rebuttal.