NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 25-1045 __________
CODY SIMENSKY
v.
EXPERIAN INFORMATION SOLUTIONS, INC.; EQUIFAX INFORMATION SERVICES, LLC; TRANS UNION, LLC
EXPERIAN INFORMATION SOLUTIONS, INC., Appellant __________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:23-cv-02153) District Judge: Honorable David S. Cercone __________
Submitted Under Third Circuit L.A.R. 34.1(a) On November 10, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit Judges
(Filed: December 29, 2025) __________
OPINION* __________
RESTREPO, Circuit Judge.
Experian Information Solutions, Inc. (“Experian”) appeals the District Court’s
denial of its motion to compel arbitration. For the reasons below, we will reverse.
I.
CreditWorks is a credit monitoring online service provided by Experian Consumer
Services (“ECS”), an affiliate of Appellant Experian. Appellee Cody Simensky alleges
that CreditWorks mixed his credit file with his brother’s file and published inaccurate
information about him to third parties. Simensky brought suit under the Fair Credit
Reporting Act, 15 U.S.C. § 1681, against Experian and two other defendants.
Experian moved to compel arbitration and attached a declaration from the ECS
Director of Product Operations Dan Smith, which detailed Simensky’s enrollment in
CreditWorks, including that Simensky opened a CreditWorks account on November 12,
2023. Smith described the enrollment process, explaining that Simensky created a
CreditWorks account by completing a webform that requested his name, address, and
email address. To complete enrollment, he was required to click a button labeled “Create
Your Account,” which appeared below the following sentence: “By clicking ‘Create
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Your Account’: I accept and agree to your Terms of Use Agreement, as well as
acknowledge receipt of your Privacy Policy.” App. 41, ¶ 3; App. 46. The phrase “Terms
of Use Agreement” contained a hyperlink to CreditWorks’ Terms of Use, which included
an arbitration agreement.
Smith based his declaration on personal knowledge obtained through his position
and duties, which included supporting CreditWorks enrollment, and review of relevant
documents in the ordinary course of business. The declaration attached a representation
of the webform, the Terms of Use, and the Terms of Use Agreement as they would have
appeared when Simensky enrolled.
The District Court denied Experian’s motion to compel arbitration and ordered
discovery regarding contract formation, finding that Smith’s declaration was insufficient
to prove that Simensky created a CreditWorks account because Smith “ha[d] no firsthand
knowledge” that Simensky himself created an account. App. 9. Rather, the District Court
held the declaration only established that “such an account appears to have been created
in CreditWorks’ records through the use of plaintiff’s personal information.” Id. Despite
recognizing that Simensky did not deny creating a CreditWorks account, the District
Court found that Simensky’s reliance on cases where the plaintiff denied forming an
arbitration agreement “raises an inference that he denies creating such an account and/or
having an understanding that he did so.” App. 4–5 n.2. This appeal timely followed.
II.
3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C.
§ 1681p. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(A)–(C). See Young v.
Experian Info. Sols., Inc., 119 F.4th 314, 318 n.7 (3d Cir. 2024).
We exercise plenary review over the denial of a motion to compel arbitration and
apply the standard applied in the District Court. Id. A motion to compel arbitration is
treated as a summary judgment motion under Federal Rule of Civil Procedure 56(a)
where, as here, the “complaint does not set forth clearly that the claims are subject to an
arbitration agreement.” Id. at 319. We thus determine whether there is “no genuine
dispute as to any material fact and, after viewing facts and drawing inferences in favor of
the non-moving party, the party moving to compel is entitled to judgment as a matter of
law.” Id. at 318 n.7 (quoting Jaludi v. Citigroup, 933 F.3d 246, 251 n.7 (3d Cir. 2019)).
III.
The District Court erred in denying the motion to compel and ordering discovery
as there was no genuine dispute of material fact as to contract formation.
The Federal Arbitration Act, 9 U.S.C. § 1 et seq., authorizes courts to compel
arbitration so long as “(1) a valid agreement to arbitrate exists, and (2) the particular
dispute falls within the scope of that agreement.” Kirleis v. Dickie, McCamey & Chilcote,
P.C., 560 F.3d 156, 160 (3d Cir. 2009). This case only involves the contract formation
prong. Courts look to state law to determine whether an arbitration agreement is
enforceable, and the parties agree that Pennsylvania law applies here. Id. Pennsylvania
law requires Experian to prove the following elements by a preponderance of the
evidence: (1) a manifestation of an intention to be bound by the agreement; (2) definite
4 contractual terms; and (3) consideration. Id.; see Gasbarre Prods., Inc. v. Smith, 270
A.3d 1209, 1218 (Pa. Super. Ct. 2022). This dispute concerns only the first prong of
mutual assent and the specific issue of whether Simensky himself created the
CreditWorks account.1
The Smith declaration provided that Simensky created a CreditWorks account and
clicked the “Create Your Account” button, which constituted acceptance of an agreement
to arbitrate. However, the District Court concluded that Experian failed to meet its burden
because “Smith ha[d] no firsthand knowledge that it was plaintiff who created such an
account” and rather, there was a possibility that Simensky’s personal information was
used to create the account without his involvement or consent. App. 9–10. We disagree.
Under Federal Rule of Civil Procedure 56, Smith’s declaration needed to “be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
We are satisfied that Smith had sufficient personal knowledge to support all facts in his
declaration, including that Simensky created an account.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 25-1045 __________
CODY SIMENSKY
v.
EXPERIAN INFORMATION SOLUTIONS, INC.; EQUIFAX INFORMATION SERVICES, LLC; TRANS UNION, LLC
EXPERIAN INFORMATION SOLUTIONS, INC., Appellant __________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:23-cv-02153) District Judge: Honorable David S. Cercone __________
Submitted Under Third Circuit L.A.R. 34.1(a) On November 10, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit Judges
(Filed: December 29, 2025) __________
OPINION* __________
RESTREPO, Circuit Judge.
Experian Information Solutions, Inc. (“Experian”) appeals the District Court’s
denial of its motion to compel arbitration. For the reasons below, we will reverse.
I.
CreditWorks is a credit monitoring online service provided by Experian Consumer
Services (“ECS”), an affiliate of Appellant Experian. Appellee Cody Simensky alleges
that CreditWorks mixed his credit file with his brother’s file and published inaccurate
information about him to third parties. Simensky brought suit under the Fair Credit
Reporting Act, 15 U.S.C. § 1681, against Experian and two other defendants.
Experian moved to compel arbitration and attached a declaration from the ECS
Director of Product Operations Dan Smith, which detailed Simensky’s enrollment in
CreditWorks, including that Simensky opened a CreditWorks account on November 12,
2023. Smith described the enrollment process, explaining that Simensky created a
CreditWorks account by completing a webform that requested his name, address, and
email address. To complete enrollment, he was required to click a button labeled “Create
Your Account,” which appeared below the following sentence: “By clicking ‘Create
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Your Account’: I accept and agree to your Terms of Use Agreement, as well as
acknowledge receipt of your Privacy Policy.” App. 41, ¶ 3; App. 46. The phrase “Terms
of Use Agreement” contained a hyperlink to CreditWorks’ Terms of Use, which included
an arbitration agreement.
Smith based his declaration on personal knowledge obtained through his position
and duties, which included supporting CreditWorks enrollment, and review of relevant
documents in the ordinary course of business. The declaration attached a representation
of the webform, the Terms of Use, and the Terms of Use Agreement as they would have
appeared when Simensky enrolled.
The District Court denied Experian’s motion to compel arbitration and ordered
discovery regarding contract formation, finding that Smith’s declaration was insufficient
to prove that Simensky created a CreditWorks account because Smith “ha[d] no firsthand
knowledge” that Simensky himself created an account. App. 9. Rather, the District Court
held the declaration only established that “such an account appears to have been created
in CreditWorks’ records through the use of plaintiff’s personal information.” Id. Despite
recognizing that Simensky did not deny creating a CreditWorks account, the District
Court found that Simensky’s reliance on cases where the plaintiff denied forming an
arbitration agreement “raises an inference that he denies creating such an account and/or
having an understanding that he did so.” App. 4–5 n.2. This appeal timely followed.
II.
3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C.
§ 1681p. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(A)–(C). See Young v.
Experian Info. Sols., Inc., 119 F.4th 314, 318 n.7 (3d Cir. 2024).
We exercise plenary review over the denial of a motion to compel arbitration and
apply the standard applied in the District Court. Id. A motion to compel arbitration is
treated as a summary judgment motion under Federal Rule of Civil Procedure 56(a)
where, as here, the “complaint does not set forth clearly that the claims are subject to an
arbitration agreement.” Id. at 319. We thus determine whether there is “no genuine
dispute as to any material fact and, after viewing facts and drawing inferences in favor of
the non-moving party, the party moving to compel is entitled to judgment as a matter of
law.” Id. at 318 n.7 (quoting Jaludi v. Citigroup, 933 F.3d 246, 251 n.7 (3d Cir. 2019)).
III.
The District Court erred in denying the motion to compel and ordering discovery
as there was no genuine dispute of material fact as to contract formation.
The Federal Arbitration Act, 9 U.S.C. § 1 et seq., authorizes courts to compel
arbitration so long as “(1) a valid agreement to arbitrate exists, and (2) the particular
dispute falls within the scope of that agreement.” Kirleis v. Dickie, McCamey & Chilcote,
P.C., 560 F.3d 156, 160 (3d Cir. 2009). This case only involves the contract formation
prong. Courts look to state law to determine whether an arbitration agreement is
enforceable, and the parties agree that Pennsylvania law applies here. Id. Pennsylvania
law requires Experian to prove the following elements by a preponderance of the
evidence: (1) a manifestation of an intention to be bound by the agreement; (2) definite
4 contractual terms; and (3) consideration. Id.; see Gasbarre Prods., Inc. v. Smith, 270
A.3d 1209, 1218 (Pa. Super. Ct. 2022). This dispute concerns only the first prong of
mutual assent and the specific issue of whether Simensky himself created the
CreditWorks account.1
The Smith declaration provided that Simensky created a CreditWorks account and
clicked the “Create Your Account” button, which constituted acceptance of an agreement
to arbitrate. However, the District Court concluded that Experian failed to meet its burden
because “Smith ha[d] no firsthand knowledge that it was plaintiff who created such an
account” and rather, there was a possibility that Simensky’s personal information was
used to create the account without his involvement or consent. App. 9–10. We disagree.
Under Federal Rule of Civil Procedure 56, Smith’s declaration needed to “be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
We are satisfied that Smith had sufficient personal knowledge to support all facts in his
declaration, including that Simensky created an account.
Smith testified that he was the Director of Product Operations for ECS and his
duties included “supporting the consumer enrollment process” and required, among other
things, familiarity with “the personally identifiable information entered when enrolling,”
1 The District Court recognized that Smith’s declaration sufficiently demonstrates that Simensky otherwise agreed to the arbitration agreement. See App. 9 (“His affidavit does show that if it was plaintiff who created the account and utilized the CreditWorks monitoring services, then it is likely that plaintiff agreed to the terms of the agreement through the sign-on/account creation process.”).
5 which allowed him to locate Simensky’s membership details. App. 40. Smith affirmed
that his declaration was based on “personal knowledge” acquired “in the course and
scope of [his] job responsibilities and through the review of pertinent documents
maintained as business records.” App. 40–41. No more was needed. As our sister circuits
have held in substantially similar cases, declarations like Smith’s satisfy Experian’s
burden. In Austin v. Experian Information Solutions, Inc., the Fourth Circuit reversed the
denial of Experian’s motion to compel arbitration, holding that an Experian employee’s
declaration similar to the Smith declaration met Experian’s burden and showed that the
plaintiff “had indeed enrolled” in CreditWorks, as the record did not suggest that the
employee “lacked personal knowledge of whether someone signed up for a free product
offered by the company, the date that they did so, and the terms of use in effect at that
time.” 148 F.4th 194, 204 (4th Cir. 2025). In Lamonaco v. Experian Information
Solutions, Inc, the Eleventh Circuit concluded that an Experian employee’s declaration
was “competent, unrebutted evidence that [the plaintiff] agreed to its Terms of Use” and
“satisfied Experian’s initial burden to prove the existence of an agreement.” 141 F.4th
1343, 1349 (11th Cir. 2025). Indeed, the personal knowledge requirement does not
require Experian to provide additional details to establish that Simensky created his
account.
Moreover, Simensky offered no factual rebuttal and does not deny that he opened
the CreditWorks account. To rebut Experian’s evidence that he created an account,
Simensky needed to do more than “simply show that there is some metaphysical doubt as
to the material facts.” United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011)
6 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986)). Speculation that someone else may have used Simensky’s credentials to open an
account does not pass muster. While we draw all reasonable inferences in favor of
Simensky, “an inference based upon a speculation or conjecture does not create a
material factual dispute sufficient to defeat summary judgment.” In re Asbestos Prods.
Liab. Litig. (No. VI), 837 F.3d 231, 235 (3d Cir. 2016) (quoting Halsey v. Pfeiffer, 750
F.3d 273, 287 (3d Cir. 2014)).
Therefore, Smith’s declaration is sufficient to prove that an arbitration agreement
existed, and there was no sufficient basis to deny Experian’s motion to compel.2 And as
there is no factual dispute as to the existence of the agreement, discovery on the motion
to compel is unwarranted. Young, 119 F.4th at 320 (“[D]iscovery addressing a motion to
compel arbitration is unnecessary when no factual dispute exists as to the existence or
scope of the arbitration agreement.”).
IV.
The District Court erred in finding that Experian did not prove that Simensky
created a CreditWorks account and erred in ordering discovery. We will reverse and
2 We also reject Simensky’s alternative argument that the CreditWorks website did not provide sufficient notice of the terms of the Terms of Use Agreement. The CreditWorks webpage placed Simensky on clear and reasonably conspicuous notice of the agreement. See Austin, 148 F.4th at 207; cf. James v. Glob. TelLink Corp, 852 F.3d 262, 267 (3d Cir. 2017) (noting that enforceability of browsewrap agreement terms “often turn[s] on whether the terms or a hyperlink to the terms are reasonably conspicuous on the webpage”).
7 remand with instructions to grant Experian’s motion to compel arbitration.