Dick’s Can’t Compel Arbitration in Unwanted Text Message Class Action Lawsuit

Dick’s Sporting Goods was dealt a legal blow when on July 5, the U.S. District Court for the Central District of California refused to compel a TCPA plaintiff to arbitrate his unwanted text message class action lawsuit against the retail chain, thus allowing the case to proceed in federal court.

Plaintiff Phillip Nghiem brought the unwanted text message class action lawsuit after he opted into Dick’s mobile alert program by texting “JOIN” to Dick’s short code.

Nghiem later texted “STOP” to the same short code, but he allegedly received at least 8 additional unwanted text messages from Dick’s after attempting to opt out – a violation of the Telephone Consumer Protection Act or TCPA.

After Nghiem filed the unwanted text message class action lawsuit for these alleged TCPA violations, Dick’s sought to enforce its Terms of Use that require any disputes related to its website – which included the link to Dick’s text alert program – to be arbitrated on an individual basis.

The court, however, refused to compel arbitration because it found that Dick’s “browsewrap agreement” was not enforceable as against Nghiem because Dick’s could not establish that he had actual or constructive knowledge of the Terms of Use.

“As the court has concluded that plaintiff neither had actual knowledge of the terms of use, nor was on inquiry notice of those terms, he cannot be bound by the arbitration clause contained in DSG’s browsewrap agreement,” U.S. District Judge Cormac J. Carney’s opinion said.

Specifically, because Dick’s Terms of Use did not require a user to affirmatively agree to be bound by the terms, or otherwise conspicuously put the user on notice of the existence of the terms, Dick’s could not prove that Nghiem had the requisite knowledge to bind him to the arbitration provision.

Further, Dick’s argued that Nghiem is an attorney that previously worked for a firm that handled TCPA lawsuits, including one involving Dick’s and its Golf Galaxy stores.  Dick’s claim that Nghiem’s affiliation should have made him aware of the company’s arbitration agreement.

However, Nghiem stated that he was not aware of the arbitration clause nor did he agree to any terms when he opted into Dick’s mobile alert program. He further argued that while his former firm worked on a case involving Dick’s, he personally did not work on the case or any part of the investigation.

Judge Carney said in his ruling that as a practicing attorney who had litigated TCPA lawsuits, Nghiem “surely has a greater level of understanding of the significance and prevalence of arbitration agreements.” Still, he stated, Dick’s can’t assume that Nghiem had prior knowledge of the arbitration terms.

“Instead, defendants were required to put forth ‘evidence’ that plaintiff had ‘actual knowledge of the agreement’ at issue,” Judge Carney said. “Defendants’ speculation regarding whether Nghiem reviewed, at some point in the past, DSG’s website terms of use is insufficient to meet this standard.”

Judge Carney also noted that while inapplicable to Dick’s practices, the court nevertheless held that when a website contains an “explicit textual notice that continued use will act as a manifestation of the user’s intent to be bound” by a company’s terms and conditions, a court will find that the user has constructive notice sufficient to make the terms enforceable.

Filing an Unwanted Text Message Class Action Lawsuit

The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to defend people from unwanted solicitation in the form of robocalls, autodials, telemarketers, invasive text messages, etc.

Essentially, the law limits marketing via text and email messages, telephone solicitations, fax transmissions, automated dialing systems and prerecorded voice messages

Unfortunately, countless companies ignore the TCPA. They still engage in robocalling, autodialing, and other unlawful practices, to the dismay of consumers. As a result, people have brought lawsuits against these companies, in some cases collecting thousands or even millions of dollars.

The TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,500.00, per unsolicited call/text message.  If you receive unwanted calls or text messages from solicitors, our attorneys may be able to help you file an unwanted text message class action lawsuit for compensation.

The Dick’s Sporting Goods Unwanted Text Message Class Action Lawsuit is Phillip Nghiem v. Dick’s Sporting Goods Inc., Case No. 8:16-cv-00097, in the U.S. District Court for the Central District of California.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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