United States Court of Appeals for the Second Circuit _____________________________________

August Term 2020

(Argued: November 12, 2020 Decided: June 8, 2021)

No. 20-946

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MARINA SOLIMAN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellee,

— v. —

SUBWAY FRANCHISEE ADVERTISING FUND TRUST, LTD.,

Defendant-Appellant. _____________________________________ Before: JACOBS, POOLER and BIANCO, Circuit Judges.

Defendant-Appellant Subway Franchisee Advertising Fund Trust, Ltd. appeals from an order of the United States District Court for the District of Connecticut (Meyer, J.), entered on March 5, 2020, denying Subway’s motion to compel arbitration and stay the proceedings. Plaintiff-Appellee Marina Soliman had filed a putative class action lawsuit alleging that a text message sent to her smartphone by Subway after she opted out of a Subway promotional program violated the Telephone Consumer Protection Act. In its motion to compel arbitration, Subway argued that Soliman was bound by the promotional program’s terms and conditions on Subway’s website (containing an arbitration provision), which were generally referenced along with a web address for the terms-and-conditions website on a print advertisement displayed in a Subway store that Soliman visited, and that Soliman viewed that advertisement to obtain a short code to enroll in the program by text on her phone. The district court denied Subway’s motion and held, under California law, that Soliman was not bound by the arbitration provision because, inter alia, Subway did not provide reasonably conspicuous notice to Soliman that she was agreeing to the applicable terms and conditions on the website. We agree. A combination of barriers relating to the design and content of the print advertisement, as well as the accessibility and language of the relevant website itself, leads us to conclude that the terms and conditions were not reasonably conspicuous under the totality of the circumstances and, thus, a reasonable consumer would not realize she was being bound to such terms and conditions by sending a text message to Subway in order to begin receiving promotional offers.

Accordingly, we AFFIRM the district court’s denial of Subway’s motion to compel arbitration and REMAND the case for further proceedings consistent with this opinion.

ADRIAN R. BACON, (Todd M. Friedman, on the brief), Law Offices of Todd M. Friedman, P.C., Woodland Hills, CA; Brenden P. Leydon, Wocl & Leydon, L.L.C., Stamford, CT (on the brief), for Plaintiff-Appellee.

IAN C. BALLON (Lori Chang, Los Angeles, CA; Brian T. Feeney, Philadelphia, PA, on the brief), Greenberg Traurig, LLP, Los Angeles, CA, for Defendant-Appellant.

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2 JOSEPH F. BIANCO, Circuit Judge:

On April 9, 2016, after Plaintiff-Appellee Marina Soliman walked into a Subway sandwich shop in California, an employee referred her to an in-store, hard-copy adver