Monday, June 14, 2021
The Second Circuit recently upheld a lower court decision that a customer that had seen Subway’s print ad in a store was not bound by the referenced terms and conditions on Subway’s website. The plaintiff, Marina Soliman, was in a Subway sandwich shop when she saw an in-store, print advertisement offering special deals if she texted a keyword to a provided code. She did and Subway began to send her text messages with a link to an electronic coupon. She alleged that she texted Subway to stop sending her more messages but that she continued to receive them so she sued, claiming a violation of the Telephone Consumer Protection Act (“TCPA”). Subway moved to compel arbitration pursuant to its website terms and conditions. It claimed that because it’s in-store advertisement included a reference to its website terms and conditions which contained an arbitration clause, that Soliman was bound to bring any disputes in an arbitral forum.
The Second Circuit, applying California law, said, “Nonsense! This madness must stop!” Actually, it said,
The court concluded that this “combination of barriers” led it to conclude that the terms and conditions were not “reasonably conspicuous under the totality of the circumstances and that a reasonable person would not realize she was being bound to them by texting Subway to receive promotional offers.
The opinion is informative – providing insight into what makes notice conspicuous (or not) - it even contains a colorful image of the actual print advertisement (see above. Can you see the reference to the Terms and Conditions?). The case is another example of how courts have become much more realistic about how a “reasonable” person interacts with T&Cs.