Hoover v. Sears
Arbitration compelled – Sears, through its agent Vibes, allegedly sent some 68 Sears Alert Program marketing (ATDS) texts to plaintiff’s mobile. Plaintiff claimed that although he had previously enrolled in a K-Mart Shop Your Way (SYW) text message program, that did not constitute consent to receive Sears texts (even though Sears owns K-Mart).
The court found that plaintiff had agreed to the terms – that included the arbitration provisions – when he signed up for the KMart text program through a POS terminal. Language presented stated:
“I agree to get SYWR text messages 10msgs/mo + confirmation of opt out. I asked for/agree to SYWR Terms. Msg+Data rates may apply. CONFIRM YOUR MOBILE #.” (emphasis added)
Plaintiff then clicked on text stating
“YES I agree and # is correct.”
The court found plaintiff was presented with a clear opportunity to obtain the terms, and choosing to agree without reading them, did not make them any less binding. Additionally, the arbitration provisions, although located towards the end of the terms, were clearly indicated in bold font, and the waiver of a right to trial was in bold and all caps, making these ‘reasonably conspicuous’ and binding.
[D. N.J.; 3:16-cv-04520]
jbho: Another valuable lesson in contract formation. The court previously denied a motion to dismiss finding TCPA violations constituted an injury-in-fact, and the individualized nature of consent was better addressed at the class certification stage. You can read more about that here.