Matthew Warciak v. Subway Restaurants, Inc.
949 F.3d 354
| 7th Cir. | 2020Background
- Plaintiff Matthew Warciak, a T‑Mobile subscriber, received a free promotional text from T‑Mobile advertising a Subway offer; he was not charged. He sued Subway (not T‑Mobile, due to T‑Mobile's arbitration clause) alleging Subway was vicariously liable under the TCPA and violated the Illinois Consumer Fraud Act.
- The complaint alleged only a commercial/contractual relationship between Subway and T‑Mobile and asserted actual and apparent authority without detailed facts about control or manifestations.
- Subway moved to dismiss under Rule 12(b)(6); the district court dismissed the TCPA claim for failure to plead vicarious liability and declined supplemental jurisdiction over the state law claim.
- The district court found the TCPA wireless‑carrier exemption applied because T‑Mobile sent the message and Warciak was not charged.
- Warciak appealed seeking leave to replead and a new judge; the Seventh Circuit affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Subway can be vicariously liable under the TCPA via agency | Contractual relationship with T‑Mobile makes Subway an agent for TCPA purposes | A commercial contract alone does not create agency; no facts showing Subway controlled communications | Complaint failed to plausibly allege express or apparent authority; dismissal affirmed |
| Whether apparent authority was pleaded (manifestation, reliance) | Recipients reasonably believed the text came from Subway because it advertised a Subway offer | Agent statements alone cannot create apparent authority absent principal manifestations or control | No facts showed Subway manifested T‑Mobile as its agent or that plaintiff reasonably relied to his detriment; apparent authority not established |
| Whether the TCPA wireless‑carrier exemption applies | Plaintiff contended exemption should not bar Subway liability | Text was sent by T‑Mobile (carrier) and plaintiff was not charged, so exemption applies | Exemption applies as alleged; no underlying TCPA violation on the facts pleaded |
| Whether dismissal should be without leave to replead or require a new judge | Plaintiff sought leave to replead and reassignment | District court properly dismissed; no basis shown for reassignment | Seventh Circuit affirmed dismissal and did not order repleading or reassignment |
Key Cases Cited
- Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639 (7th Cir. 2019) (standard of review for Rule 12(b)(6) dismissal)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of Twombly plausibility requirements)
- Campbell‑Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (text messages qualify as "calls" under the TCPA and FCC agency principles apply)
- Clarendon Nat'l Ins. Co. v. Medina, 645 F.3d 928 (7th Cir. 2011) (definition of express authority)
- Am. Soc'y of Mech. Engineers v. Hydrolevel Corp., 456 U.S. 556 (1982) (apparent authority principles)