Document:
No. 21-2273
CARD CONNECT, LLC,
Plaintiff-Appellant,
v.
SHIFT4 PAYMENTS, LLC, SHIFT4 PAYMENTS
(CAYMAN), and SHIFT4 CORPORATION,
Defendants-Appellees.
2021-2273
Appeal from the United States District Court for the
Eastern District of Pennsylvania in No. 2:18-cv-03989-
ER, Judge Eduardo C. Robreno.
_________________________________
ON PETITION FOR REHEARING EN BANC
Before: MOORE, Chief Judge, AMBRO, KRAUSE,
SHWARTZ, RESTREPO, and FREEMAN, Circuit Judges
O R D E R

The petition for rehearing filed by Appellant in the
above-entitled case having been submitted to the judges who
participated in the decision of this Court and to all the other
available circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having asked for
rehearing, and a majority of the judges of the circuit in regular
service not having voted for rehearing, the petition for
rehearing by the panel and the Court en banc is denied

Circuit Judges Restrepo and Freeman dissent from
the denial of rehearing en banc and would grant the petition
for the reasons set forth in the opinion dissenting from denial
of rehearing en banc.
DATED: June 26, 2023

RESTREPO, and FREEMAN, Circuit Judges, dissenting
from the denial of rehearing en banc.

Card Connect, LLC (“Card Connect”) appeals the
District Court’s adverse grant of summary judgment. Card
Connect entered into a Merchant Acquiring and Processing
Services Agreement (the “Agreement”) with iPayment, Inc.
(“iPayment”). Shift4 Payments, LLC, Shift4 Payments
(Cayman), and Shift4 Corporation (collectively, “Shift4”) were
not a party to, nor mentioned in, the Agreement. Rather, they
are alleged successors in interest to iPayment through a series
of corporate transactions.

The Agreement required iPayment to use Card
Connect as its exclusive provider of payment processing and
related services. Card Connect claims Shift4 breached the
Agreement by failing to refer merchants to Card Connect.
Shift4 argues it is not bound by the Agreement’s exclusivity
provision. The District Court granted summary judgment in
favor of Shift4. The Majority affirms the decision of the
District Court. We respectfully dissent.

Card Connect alleges that Shift4 assented to all the terms of
the Agreement, including the exclusivity provision, through
the conduct of J.D. Oder, II (“Oder”), who served as CEO
of iPayment and later as CEO of Shift4 Payments, LLC and
Shift4 Corporation. Most notably, Card Connect points to a
text message exchange wherein Shift4’s counsel, Mr. Miller,
asked Oder, “[P]lease don’t sign any new deals with [Card
Connect],” to which Oder replied: “🗽.”
2 App’x513a.

Miller followed up a few minutes later with “[a]nd I know
you know that. But I have to give you the lawyer warning
since I am one ;).” 2 App’x513a. Oder responded, “Haha.
I thought u were playing golf[.]” 2 App’x513a. The District
Court interpreted Oder’s Statue of Liberty emoji response as
having “no contractual significance.” 2 App’x38a. It found
that the emoji was a “non-committal response to a routine
business communication between corporate counsel and CEO
of a company” and that the “subsequent messages suggest that
the message exchange was done, at least partially, in jest.”
2 App’x38a. The District Court thus concluded that “as a
matter of law, th[e] [emoji] exchange did not create any
contractual obligations.” 2 App’x38a. The Majority adopts
this reasoning. See Maj. Op. at 19 (“The emoji and
surrounding text messages do not show Oder’s—and thus
Shift4’s—agreement . . . .”).

We take issue with the conclusion that a single emoji—
in this instance, the Statue of Liberty emoji—can be
interpreted only one way as a matter of law.
That is not how emojis work. By their nature,
emojis are open to multiple interpretations. They
are, by definition, “small image[s] . . . used to express
an idea, emotion, etc.[,]” Emoji, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2005) (emphasis
added). The definition of an emoji lays bare its
ambiguity, as the same image may “express” a range
of “idea[s]” or “emotion[s].” Id. Furthermore, even
when considering distinct words of established
meaning, context matters. See, e.g., MCI Telecomms.
Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1142 (7th
Cir. 1983) (“[A] determination of meaning must be
sought in context . . . .”). Emojis are a form of
nonverbal communication, and context is of even
greater import in assessing emojis’ significance.

Indeed, the Majority acknowledges this very concept in
its textual analysis of Oder’s emoji. Maj. Op. at 18 n.91
(“[E]mojis by their nature are not typically imbued with
one singular, static meaning. . . . [T]he meaning of an emoji is
highly contextual . . . .”). The Majority uses the specific
factual “context” of the emoji exchange to conclude that the
Statue of Liberty emoji meant “nothing.” Id. at 18-19. The
Majority reasons that, because Oder’s earlier message
responses stated that he was “on it” and “ok,” this displayed
his “readiness to follow counsel’s advice.” Id. at 18. It further
reasons that, because Miller and Oder joked about the
exchange (“Haha. I thought u were playing golf[.]”), this
meant the emoji could not have created a legally binding
contractual obligation. Id. at 18-19..
With respect, we disagree that the use of a single emoji
is susceptible to just one, definitive interpretation as a matter
of law. We dissent because we believe a reasonable factfinder
could conclude that Oder’s use of the Statue of Liberty emoji
expressed an “idea” or “emotion” cognizable as assent. The
matter should have gone to a jury. We would vacate the grant
of summary judgement and remand this case to the District
Court.