Faked It? Your Contract Won’t Make It
The US Court of Appeals for the Seventh Circuit affirmed a district court ruling denying a defendant’s motion to enforce an arbitration clause in a software license agreement that the defendant’s employee entered into using a fake company name at the defendant’s direction. CCC Intelligent Sols. Inc. v. Tractable Inc., Case No. 19-1997 (7th Cir. June 6, 2022) (Easterbrook, Brennan, St. Eve, JJ.)
CCC Intelligent Solutions and Tractable are competitors that provide customers, including insurance companies, with cost estimates to repair damaged cars and trucks. Both companies supply software that applies algorithms to data generated by body shops and other repair centers. CCC provides the software to customers under terms in a license agreement. The license prohibits disassembling the software code or incorporating it into other software, forbids assignment of the license without CCC’s consent and includes a representation that the customer is not acting as an agent of any third party. The license also includes an arbitration clause. A Tractable employee obtained a license to CCC’s software under a fake business name, “JA Appraisal,” using a false mailing address and email address. The employee gave the software to Tractable, which disassembled the software and incorporated CCC’s proprietary algorithms into its own product. CCC became aware of Tractable’s improper use of its software and filed a lawsuit in the district court.
Tractable moved to compel arbitration under the terms of the agreement, arguing that JA Appraisal was its agent and that Tractable was therefore a party to the license agreement. The district court denied Tractable’s motion. The district court found that a reasonable jury could find that CCC did not intend to grant Tractable a license, and that CCC could have reasonably believed it was doing business with JA Appraisal based on JA Appraisal’s representations and the agreement’s non-assignment provisions. Tractable appealed.
The Seventh Circuit addressed whether Tractable was a party to the contract. The Court first assessed whether it was publicly known that Tractable did business under the JA Appraisal name. The Court found (and Tractable’s counsel admitted) that it was not possible for CCC to discover that Tractable used that name. Tractable, based on a comment to § 163 of the Restatement of Contracts, argued that § 163 provides that a party’s acceptance of a contract is not effective if it was induced by a misrepresentation of an essential term of the contract by the other party. The cited comment provides an exception to this rule, stating that “the mere fact that a party is deceived as to the identity of the other party” does not bring a case within the auspices of § 163 “unless it affects the very nature of the contract.”
The Seventh Circuit rejected Tractable’s reliance on the comment. The Court found that JA Appraisal’s identity affected the very nature of the contract and therefore the exception recited in the comment did not apply. The Court explained that the exception to § 163 covers situations when a party failed to know the “full truth” about its trading partner. The Court pointed out that no such situation existed here because CCC did not know that Tractable would be its trading partner, particularly since Tractable told its employee to pretend to represent a small, independent appraiser. The Court explained that the laws governing the present dispute are so simple that Illinois courts have not revisited them in more than 80 years. The Court concluded that “Tractable is not a party to this contract, so it cannot demand arbitration.”