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Monday, November 11, 2019

Subway not on the hook for T-Mobile promo texts offering free sandwiches, judge says


By Jonathan Bilyk | Mar 4, 2019


A T-Mobile customer can’t make fast food sandwich chain Subway pay up for a promotional text message sent by the wireless carrier offering its customers free sandwiches as a reward for being a T-Mobile user, a federal judge has ruled.

On Feb. 28, U.S. District Judge Charles Kocoras once again cut short plaintiff Matthew Warciak’s claims against Subway, saying his legal team with the firm of Edelson P.C., of Chicago, has yet to demonstrate Subway had any control over the text ad sent by T-Mobile.

“… Warciak states that Subway ‘engaged’ in a text message campaign ‘through a marketing partner’ and ‘had these text message calls made,’” Kocoras wrote. “Notably absent from the complaint are any facts alleging that Subway controlled the timing, content, or recipients of the text message.

“Indeed, Warciak acknowledges that the recipients of the text message are all T-Mobile customers, indicating that Subway did not have control over who received the text message.”

The case was first dialed up in 2016, when the Edelson attorneys filed suit on Warciak’s behalf, demanding Subway get handed a bill to pay a class of additional plaintiffs that could number in the thousands or more.

The lawsuit centered on a text message received by Warciak and other T-Mobile wireless customers on Sept. 6, 2016, offering “a free 6-inch Oven Roasted Chicken sub at Subway” on “T-Mobile Tuesday … just for being with T-Mobile.” The message also included a link, purportedly inviting recipients to download an on their phones.

In the lawsuit, Warciak alleged this text message violated his rights under the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud Act, because he said he never gave Subway authorization to promote their products in his text messages.

Warciak’s lawsuit, however, did not allege a violation of the law against T-Mobile, which Kocoras noted may be protected by an exemption for wireless carriers in the TCPA law.

Kocoras dismissed the lawsuit in 2017, saying at the time he believed federal law required the action to be sent to arbitration.

That ruling, however, was overturned by the U.S. Seventh Circuit Court of Appeals, who said Kocoras wrongly granted Subway’s motion to dismiss, because the motion relied on a provision in the T-Mobile user contract held by Warciak’s mother. Warciak’s phone was authorized under that contract.

The Seventh Circuit said Illinois law did not allow that decision to hold. The case was sent back to Kocoras for further proceedings in March 2018.

Two months later, Subway again filed a motion to dismiss, this time asserting Warciak had no claim against them. Among other arguments, Subway asserted it had no control over the text sent by T-Mobile.

With the federal charges dismissed, Kocoras declined to take any action on the state law claim.

Kocoras’ decision does not indicate if the plaintiffs would be allowed to file a new case, as it does not state if the decision was with prejudice.

Subway has been represented in the action by attorneys Charles H.R. Peters and Lawrence H. Heftman, of the firm of Schiff Hardin LLP, of Chicago, and Kristine McAllister Brown and Derin B. Dickerson, of Alston & Bird, of Atlanta.

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Organizations in this Story

Schiff Hardin LLPSubwayEdelson, PCU.S. District Court for the Northern District of IllinoisSchiff and Hardin LlpAlston & Bird LLP

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