The 7th Circuit dismissed a Telephone Consumer Protection Act (TCPA) class action against Subway, the fast food sandwich chain. The court dismissed the case—Matthew Warciak et al. v. Subway Restaurants Inc.—on two very different grounds.
The class action, originally filed in 2016, stems from a text message that the plaintiff received from T-Mobile advertising a free 6-inch sandwich at Subway. The plaintiff tried to argue that this constituted an agency relationship between the sandwich restaurant and wireless carrier, making Subway vicariously liable for any TCPA violations. The court did not find sufficient evidence for this claim, dismissing any vicarious liability for Subway.
More interestingly, the court also found that the text message in question did not constitute a TCPA violation anyway. Because the plaintiff was a T-Mobile customer and because he was not charged for receipt of the message, the statute’s wireless carrier exemption applies.
While it may seem like this decision creates two precedents for the dismissal of TCPA lawsuits stemming from these sort of cross-promotions with wireless carriers, another court in a nearly identical case in a different jurisdiction—Fishman v. Subway Franchisee Adver. Fund Trust—came to essentially the opposite conclusion.