A customer of the Subway sandwich chain was cleared to proceed with her lawsuit against the company for incessantly texting her even after she asked them to stop.
Marina Soliman filed the lawsuit in March of last year because she was receiving promotional text messages from the fast-food chain that she couldn’t opt out of. It all started when she saw an advertisement for a free sandwich promotion at a Subway location in California, which prompted her to text a keyword and a short code to the company to collect the freebie.
After continuing to receive further promotional materials from Subway on her phone, Soliman texted the company back and asked them to stop, but alleges she was ignored.
Subway says that by opting into the free sandwich promotion, Soliman agreed to an arbitration clause and effectively signed up for the chain’s promotional text messages. The clause was laid out in the sandwich promotion’s terms and conditions published on the chain’s website—the only way for a customer to read it was to take the extra step of visiting the web address that appeared on the sandwich advertisement.
However, the U.S. Court of Appeals for the Second Circuit said Soliman wasn’t bound by those terms and conditions under California law for several reasons. For one, Subway used a “significantly smaller” font for those terms and conditions than the rest of the advertisement and surrounded them with unrelated information. Furthermore, the fine print only vaguely referenced the terms and didn’t make it clear to customers that they would be agreeing to those terms simply by texting to get a free sandwich, the court said.
“Plaintiff Marina Soliman wanted a good deal on a Subway sandwich,” U.S. District Judge Jeffrey A. Meyer previously wrote about the case. “Subway says that when Soliman signed up for discount sandwiches, she also agreed to a side order of arbitration. I don’t think so.”
According to the latest ruling, Subway violated federal law by ignoring the customer’s request to stop texting her, because she wasn’t bound by the arbitration provision written in fine print on Subway’s website.
Solimano is demanding Subway pay her $1,500 for every unwanted text message. Because she filed a proposed class action lawsuit on behalf of all customers who experienced a similar situation with Subway, damages could climb to millions of dollars, according to Hartford Courant.
Subway did not immediately return our request for comment.