999 F.3d 828
2d Cir.2021Background
- In April 2016 Marina Soliman visited a Subway store, was shown a printed promotion instructing customers to text a keyword to a short code to receive offers. She texted and completed a two-step enrollment, receiving promotional texts and an electronic coupon.
- Months later she texted "STOP" but alleges she still received another promotional text; she sued Subway Franchisee Advertising Fund Trust, Ltd. under the TCPA.
- Subway moved to compel arbitration, relying on a fine-print line in the in-store ad that read "Terms and conditions at subway.com/subwayroot/TermsOfUse.aspx," which pointed to a website containing an arbitration clause.
- The district court denied the motion to compel, holding under California law that the ad did not provide reasonably conspicuous notice of the website terms and that Soliman had not unambiguously manifested assent.
- The Second Circuit affirmed, finding multiple barriers to inquiry notice: no evidence of ad/print size, the URL and "terms and conditions" language were buried in small fine print, accessing the terms required typing a long URL (mixed-media hurdle), and the website heading limited the terms to "this website," creating potential ambiguity about their applicability to the promotion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a consumer who texts a short code after seeing a print ad is bound by terms on a website referenced only by a printed URL | Soliman: the reference to "Terms and conditions" in fine print was not reasonably conspicuous; no inquiry notice | Subway: the ad’s URL and proximity to the short code gave constructive/inquiry notice of the website terms (including arbitration) | Held: No — the reference was not reasonably conspicuous and did not put a reasonably prudent person on inquiry notice |
| Whether Soliman unambiguously manifested assent by sending the text | Soliman: sending a text to get a coupon did not unambiguously assent to unseen website terms | Subway: texting to enroll signaled acceptance of the ad’s incorporated terms | Held: Court did not need to decide because lack of reasonable conspicuousness foreclosed formation |
| Whether mixed-media incorporation (print ad + typed URL + website terms) can provide sufficient notice | Soliman: mixed-media makes access harder and reduces conspicuousness | Subway: paper URL can incorporate web terms like any other incorporation by reference | Held: Mixed-media may suffice in some cases, but here the difficulty of accessing the URL plus other factors defeated reasonable notice |
| Whether prior decisions (e.g., Meyer) require a different outcome | Soliman: Meyer and other precedents require clearer notice and explicit prompts | Subway: Meyer and similar cases support enforcement when links are proximate and visible | Held: Meyer is distinguishable; this case lacks Meyer’s clear, uncluttered, temporally coupled prompt and other indicia of conspicuous notice |
Key Cases Cited
- Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (enforcement of web-based terms depends on design, language, and clear prompt that user’s action constitutes assent)
- Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016) (cluttered interface and inconspicuous notice can defeat inquiry notice of terms)
- Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (download/prompt contexts: submerged or buried notice is insufficient for constructive/inquiry notice)
- Starke v. SquareTrade, Inc., 913 F.3d 279 (2d Cir. 2019) (assent requires reasonably conspicuous presentation; interface design is critical)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (proximity of hyperlink alone is insufficient absent other attention-capturing measures)
- Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (internet commerce does not change basic contract principles regarding incorporation and notice)