Greenberg v. Doctors Assocs., Inc., 338 F. Supp. 3d 1280

Plaintiff enrolled in a Subway promotional offer (text/email) promising up to 10 autodialed texts and referencing "Terms and Conditions" / "Terms of Use."
Plaintiff sued Doctors Associates, Inc. (Subway) under the TCPA alleging Subway sent more than 10 texts without consent.
Subway moved to compel arbitration and stay the case, relying on an arbitration clause contained in the referenced Terms and Conditions.
Subway produced the offer text/email and evidence that the offer incorporated the online Terms of Use which include an arbitration provision.
Plaintiff argued he did not accept or was not on notice of the arbitration clause; he also pointed to language stating consent was not a condition of purchase.
The district court found the incorporation by reference adequate, rejected the notice/ambiguity arguments, granted the motion to compel arbitration, stayed the case, and administratively closed the file.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a valid arbitration agreement was formed	Plaintiff denied assent to the Terms and Conditions and argued reference was insufficient	Subway argued plaintiff opted in to the offer which incorporated Terms containing arbitration	Court held a valid arbitration agreement was formed by assent to the offer that incorporated the Terms
Whether incorporation by reference provided adequate notice of arbitration clause	Plaintiff argued mere reference and small font were insufficient and ambiguous	Subway argued the offer language manifested intent to be bound and was proximate to the operative promise	Court held incorporation by reference was adequate despite small font; plaintiff bound to Terms he agreed to
Whether plaintiff's unreadness/ignorance of clause defeats arbitration	Plaintiff argued he didn’t read or know of arbitration	Subway argued under Florida law parties are bound by contract terms they assent to even if unread	Court held unreadness does not avoid arbitration under Florida law
Whether statement "consent is not a condition of purchase" created ambiguity preventing incorporation	Plaintiff relied on that statement to argue Terms didn’t apply	Subway pointed to other offer language making agreement to Terms a condition of signup	Court held the offer, read as a whole, unambiguously required assent to Terms to enroll, so no actionable ambiguity

Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005) (FAA embodies liberal policy favoring arbitration)
Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325 (11th Cir. 2016) (presumption of arbitrability; doubts resolved for arbitration)
Dasher v. RBC Bank (USA), 745 F.3d 1111 (11th Cir. 2014) (scope and presumption principles under FAA)
Lambert v. Austin Ind., 544 F.3d 1192 (11th Cir. 2008) (court must compel arbitration if agreement valid and claims fall within its scope)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (threshold question whether arbitration agreement exists is a matter of contract)
Med-Star Cent., Inc. v. Psychiatric Hosps. of Hernando Cty., Inc., 639 So.2d 636 (Fla. Dist. Ct. App. 1994) (contract formation requires offer, acceptance, consideration)
Avatar Props., Inc. v. Greenbaum, 27 So.3d 764 (Fla. Dist. Ct. App. 2010) (party bound by incorporated arbitration clause even if collateral document not attached)
Mgmt. Computer Controls, Inc. v. Charles Perry Const., Inc., 743 So.2d 627 (Fla. Dist. Ct. App. 1999) (incorporation by reference requires language showing intent to be bound)
Temple Emanu-El v. Tremarco Indus., Inc., 705 So.2d 983 (Fla. Dist. Ct. App. 1998) (addressing ambiguity and applicability of incorporated terms)