Soliman v. Subway Franchisee Advertising Fund Trust, LTD., 442 F.Supp.3d 519

In April 2016 Soliman texted a Subway short code to join a promotional text club and completed a double opt-in; she immediately received a coupon link and later unwanted texts even after texting "STOP."
The in-store/print advertisement promoting the campaign contained a ~100-word small-font disclaimer: "Terms and conditions at subway.com/subwayroot/TermsOfUse.aspx" and "Consent not required to buy goods/svcs."
The referenced website contained lengthy Terms of Use; an arbitration clause appeared several screens down under a header suggesting the terms were "FOR THIS WEBSITE." Soliman did not click through to or sign those terms, was not told orally she was agreeing to them, and did not receive a copy.
Soliman sued as a putative class under the TCPA for receiving unwanted texts after opting out; Subway moved to compel arbitration, arguing Soliman agreed to the website Terms by opting in.
The court applied California contract-formation law (per Meyer): an arbitration clause requires (1) reasonably conspicuous notice and (2) an unambiguous manifestation of assent.
The court denied the motion to compel arbitration, finding Subway’s ad and link did not give reasonably conspicuous notice of the arbitration clause and Soliman did not unambiguously assent to it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Soliman received reasonably conspicuous notice of arbitration	The ad's small-print disclaimer and vague URL did not put a reasonable consumer on inquiry notice of an arbitration clause	The ad’s disclaimer and link to Terms of Use provided adequate notice	Court: Notice was not reasonably conspicuous; multiple obstacles prevented inquiry notice; requirement unmet
Whether Soliman unambiguously manifested assent to arbitration by opting in	Opting in only manifested consent to receive texts, not assent to distant website arbitration terms	The opt-in conduct manifested assent to the linked Terms, including arbitration	Court: No unambiguous manifestation of assent to arbitration; opt-in did not bind her to the clause
Whether to resolve scope or unconscionability of the arbitration clause	Moot because there was no agreement	Claimed clause would cover TCPA claims and should be enforced	Court: Did not reach scope or unconscionability because no arbitration agreement existed

Meyer v. Uber Techs., 868 F.3d 66 (2d Cir. 2017) (adopts California test: reasonably conspicuous notice + unambiguous assent for web-based terms)
Starke v. SquareTrade, Inc., 913 F.3d 279 (2d Cir. 2019) (cluttered interface and spatially decoupled link defeat inquiry notice)
Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016) (interface design guides inquiry-notice analysis)
Burks v. Kaiser Found. Health Plan, Inc., 73 Cal. Rptr. 3d 257 (Cal. Ct. App. 2008) (small, plain-type arbitration disclosure can be unconspicuous)
Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (clicking a button does not show assent if the interface did not make assent clear)
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (proximity of a hyperlink alone does not create constructive notice)
Long v. Provide Commerce, Inc., 200 Cal. Rptr. 3d 117 (Cal. Ct. App. 2016) (hyperlink without an express warning may not alert consumers to binding terms)
Effron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir. 1995) (contrasting example where bold, prominent notice on a ticket supported notice)
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (actual knowledge of online terms can bind frequent users)
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (forum-selection enforcement where parties conceded notice)