Federal Judge rules that silence is a binding contract to arbitrate
- Peter Schneider
- Aug 5
- 4 min read
In a ruling that will shock absolutely no one who watches federal judges in telephone consumer protection act cases, a court ruled that a consumer consented to arbitration by not responding to a text message with arbitration terms. The case is Thompson v. Brew Culture, LLC, No. 3:24-CV-331-HTW-LGI, 2025 U.S. Dist. LEXIS 148060 (S.D. Miss. Aug. 1, 2025), and while the ruling is bad and anti-consumer, it isn't surprising.
First, some back story. The plaintiff, Ms. Thompson, went to Brew Culture and provided her phone number for a discount. At which point she received a text message with a link to terms and conditions, one of which was arbitration, and the parting words "Reply STOP to opt out". Ms. Thompson didn't respond.
Eventually the further text messages she received went to court and Brew Culture moved to compel arbitration, which the court granted.
This text message also provided a clear instruction to opt out of the rewards program by replying "STOP," which Plaintiff did not do. Brew Culture maintains that Plaintiff explicitly consented to the arbitration provisions and class action waivers when she voluntarily provided her mobile phone number to enroll in the program. Plaintiff, contrariwise, opposes arbitration. She contends that she was unaware of the arbitration clause terms and, therefore, did not explicitly consent to arbitration. Plaintiff further asserts the arbitration clause specifically references Touchpoint, not Brew Culture, and thus does not explicitly extend to disputes involving Brew Culture directly. Plaintiff emphasizes that she provided her telephone number only to receive a free coffee promotion and never saw the arbitration terms. The central question facing this Court is whether Plaintiff knowingly consented to a valid arbitration agreement that encompasses her claims. Under the FAA, in determining whether the parties agreed to arbitrate a certain matter, courts apply the contract law of the particular state that governs the agreement. Plaintiff's enrollment in the 7 Brew Rewards Program required her to provide her mobile phone number, after which she immediately received a confirmation text message welcoming Plaintiff to the rewards program, along with a direct hyperlink to Touchpoint's General Terms of Service. This link led to a page containing the arbitration agreement. The text also provided clear instructions for opting out by replying "STOP," which Plaintiff did not do. In this Courts eye, the text message provided Plaintiff ample and conspicuous notice of the arbitration terms to establish consent. She had both the opportunity and the means to read, review, and reject those terms before continuing participation in the rewards program. This conclusion is reinforced by Fifth Circuit precedent holding that constructive notice and continued participation establish consent to arbitration. In Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 202-04 (5th Cir. 2016), the Fifth Circuit enforced arbitration where an employee continued his employment after his employer implemented a new policy requiring employees to arbitrate any employment disputes.
This is the reality of the world we live in, where corporations can move the goal posts after consumers make a choice, and many courts will bless it off. Ms. Thompson probably should have lost this case. But not this way.
This joins decisions where people buy refrigerators and courts bind them to the "contract" printed on the outside of the box - that they never saw because who sees the box the refrigerator comes in these days - or terms and conditions printed inside the box. Courts are political tools of the wealthy and powerful, and arbitration is the preferred tool of the wealthy and powerful.
What can you do to protect yourself? None of these are foolproof, but more a framework of living that gives you better odds to coming out on top.
Don't buy online where you shop in person. Walmart initially moved to compel arbitration of Plaintiffs' original complaint based on their inclusion of purchases made on Walmart's online platforms. Rector v. Walmart Inc., Civil Action No. 24-658 (RC), 2025 U.S. Dist. LEXIS 149430, at *1 (D.D.C. Aug. 4, 2025) and who could forget the recent example of Disney moving to compel arbitration when a restaurant patron died from an allergic reaction while on a Disney property because in the past she might have had a Disney + tv streaming subscription with an arbitration agreement.
Don't give out your phone number for silly discounts. Ms. Thompson gave out her phone number for a $2 discount, and in response the judge would have held her to anything in that agreement she didn't know about. Is $2 worth your privacy? No.
Replying STOP is good, but a letter is better. Suppose Ms. Thompson replied STOP, and Brew Culture continued texting, and the matter went to court. I guarantee Brew Culture's next argument would be that they didn't know what STOP meant. But whatever it mean, it didn't mean no more phone calls. Many federal judges are going to be sympathetic to the argument. Stop what? What kind? For how long? When? Often with our clients we follow up with a letter to the companies registered agent telling them the client does not want more phone calls. Where you might see "stop" as clear and unambiguous, a federal judge may enough to drive a motion to dismiss through.
It is worth consulting an experienced attorney. Ms. Thompson didn't have a case in its current form. Maybe she'd never have one. Maybe she could have built one. But this one should not have been brought and the costs of bringing bad cases sometimes land on the client. An experienced attorney should have helped her bring a better case, and not brought it till she had one.
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
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Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
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