MEMORANDUM & ORDER In this putative class action, Plaintiff Luis Arnaud brings suit on behalf of himself and all consumers in the United States who have allegedly received unsolicited and unconsented-to commercial text messages to their mobile phones from Defendant Doctor’s Associates Inc. d/b/a Subway (“Subway” or “Defendant”). (Compl. (Dkt. 1) 1.) Plaintiff claims that Defendant has violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227 et seq., by using an automated telephone texting system to send unsolicited and unauthorized marketing text messages to the cellular phones of Plaintiff and the class members. (Id. 36.) Plaintiff seeks an order certifying the class under Federal Rule of Civil Procedure 23, declaring that Defendant’s conduct violates the TCPA, and awarding statutory and treble damages for each violation of the TCPA. (Id. at 13.) Before the court is Defendant’s motion to compel arbitration of Plaintiff’s claim and stay proceedings in this action pending completion of the arbitration. (Def. Mot. to Compel Arbitration & Mot. to Stay Litig. (“Mot.”) (Dkt. 27).) For the following reasons, Defendant’s motion is DENIED. I. BACKGROUND A. Facts Unless otherwise noted, the following facts are undisputed. Where the facts are disputed, the court notes the dispute and credits Plaintiff’s version of the facts. See Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017) (“Courts deciding motions to compel…draw[] all reasonable inferences in favor of the non-moving party.” (citation omitted)). Plaintiff states that he is a citizen of the state of New York and a resident of Bronx County. (Compl. 5.) He alleges that, in October of 2016, he visited a Subway restaurant and made a purchase.1 (Id. 14.) The receipt from Plaintiff’s transaction stated that Plaintiff could get “a discount/free item” if he took an electronic survey following his visit. (Id.) Plaintiff took the survey, which asked him for personal information including his telephone number. (Id.) Plaintiff states that he provided his number in order to receive a discounted or free item, but insists that he never consented to receiving promotional text messages from Subway. (Id.) Defendant contends that Plaintiff did sign up to receive text offers from Subway, and that he “reaffirmed his assent” via text message. (See Mot. at 2 (citations omitted).) Franchise World Headquarters, LLC (“FWH”) provides services to Subway, including overseeing the www.subway.com website (the “Website”). (Dec. 28, 2018 Decl. of Mike Feinberg (Dkt. 29)
1-2.) In the ordinary course of FWH’s business, it maintains archive copies of web offers available on the Website and records reflecting how the offers appeared during specific timeframes. (Id. 3.) It also maintains records of user opt-ins that occur on the Website and related user activity. (Id.) In April of 2016, the “Subway SMS Offers” promotion appeared on the Website as follows: (Id.) Users who signed up via this webpage had to enter their mobile phone number and zip code, click on a CAPTCHA2 verification, and click the “I’m In” button in order to receive messages. (Id. 4.) Below that button, the webpage includes more information, including large green text in all capital letters that reads: “THIS PAGE IS NOT A COUPON, OFFER WILL BE SENT TO YOUR SMARTPHONE VIA TEXT MESSAGE.” (Id. 3.) Below that, in smaller print, it states, “Msg/data rates may apply. Max 10 msgs/mo. Msgs may be autodialed. Consent not required to buy goods/svcs Only available for smartphones with a data plan.” (Id.) Below that appeared two links, one labelled “T&Cs” and the other labelled “Privacy.” (Id.) Anyone who clicked on the link labelled “T&Cs” was taken to a document titled “TERMS AND CONDITIONS.” (See Terms of Use Document (“Terms of Use”) (Dkt. 28-1) at 1.) Section 14 of that document was titled “Choice of Law and Dispute Resolution” and, in relevant part, it provides as follows: Any controversy or claim arising out of or relating to this Website or the breach of the Terms of Use shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association at a hearing to be held in Bridgeport, Connecticut in the United States of America or such other location in the State of Connecticut designated by the American Arbitration Association…. The commencement of arbitration proceedings by an aggrieved party to settle disputes arising out of or relating to this Website is a condition precedent to the commencement of legal action by either party. (Id. at 5.) According to Defendant, Plaintiff clicked on the “I’m In” button and received a confirmation text to his phone number: “Reply Y as ur sig 2agree 2 SUBWAY offers 2 this ph# (max10msgs/mo-Msgs may b autodialed-Consent not req’d 2buy goods/svcs) Reply HELP=help Msg&data rates apply.” (Mot. at 3-4.) Defendant states that Plaintiff replied to this message with the letter “Y.” (Id. at 3-4.) Plaintiff says that, although he clicked the “I’m in” button on the website, he did not understand that as constituting his signature to a contract. (Compl. 14; see also Opp’n at 6.) Moreover, he insists that he never replied “Y” to a text message, and that he knows this because he “has a habit of not responding to impersonal texts of this nature.” (Opp’n at 6; see also Compl.
