A sandwich chain’s text club produced two federal appeals over one promotional text sent four days after a customer replied STOP. The chain lost the first appeal, because its in-store poster didn’t bind the customer to arbitration. It won the second, because texting a stored customer list isn’t autodialing. Together the rulings show where a restaurant’s texting risk sits now: opt-out handling, Do Not Call rules, and sign-up terms. The autodialer claim is much weaker than it used to be.
How did the Subway text club cases start?
With a keyword on a poster. According to the Second Circuit’s first opinion, Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., 999 F.3d 828 (2d Cir. 2021), “Subway offered to send special offers to Soliman if she texted a keyword to the provided short code.” She texted, sent her zip code, and got a welcome text confirming she had joined the chain’s regional text club.
Months later, the customer alleged, she texted STOP. The opinion recounts that the reply said “[y]ou have been unsubscribed from all programs on 782929 and will no longer receive any text alerts.” Four days later another offer arrived. Subway told the court it had “no record of receiving that text from Soliman,” which is a reminder that a restaurant’s own opt-out logs are the first thing a defense needs.
Will the arbitration clause in a text club’s terms hold up?
Not if the customer never had a fair chance to see it. Subway moved to compel arbitration based on terms posted on its website and referenced in small print on the in-store poster. The Second Circuit affirmed the denial, holding 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.”
The court listed the barriers. According to the opinion, the reference to terms “was buried on the advertisement” in small print, reading them required typing a URL into a phone’s browser, and the page that loaded described itself as “terms of use for this website,” not terms for the text club.
Every one of those problems can be fixed in the sign-up flow. A restaurant that wants arbitration should put a short statement in the first reply text that joining means agreeing to the text club terms, include a working link to terms that are labeled as the text club’s, and keep a copy of every version. The earlier post on clickwrap and browsewrap agreements in TCPA cases covers the formation rules courts apply.
Can a restaurant be sued under the autodialer rule after Duguid?
It can be sued, but the claim is hard to win. Back in the district court, the customer argued that Subway’s texting platform was an automatic telephone dialing system and that its texts used an “artificial voice.” The district court dismissed both claims, and the Second Circuit affirmed in Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., 101 F.4th 176 (2d Cir. 2024).
The court explained that “Subway’s system did not generate telephone numbers, as Subway’s system used a “stored” or pre-existing list of telephone numbers.” On the voice theory, it held that “the district court did not err in holding that a text is not an “artificial voice.”” One judge dissented on the autodialer question, so plaintiffs will keep testing it. For a restaurant texting customers who signed up, the autodialer claim is now a weak one.
That’s the good news, and it’s narrower than it sounds. Soliman’s complaint pleaded only the autodialer and voice theories. A restaurant’s bigger exposure is a Do Not Call claim, which needs no autodialer at all.
Do the Do Not Call rules apply to restaurant texts?
They do, and they’re where most restaurant exposure now lives. The FCC’s Do Not Call rules bar telephone solicitations to residential subscribers on the national Registry, and the regulation applies those rules to “text messages to wireless telephone numbers.” Whether a text counts as a call for a private Do Not Call suit is still contested in some courts, but no restaurant should build its program on winning that argument.
Under 47 U.S.C. § 227(c)(5), a plaintiff must have received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the rules. The recovery is up to $500 per violation, and a court may increase that to up to three times the amount if it finds the violation was willful or knowing. A weekly deal text to a few thousand numbers on the Registry adds up fast.
Restaurants have a defense most businesses don’t: their customers buy often. The regulation excludes from “telephone solicitation” any message “To any person with whom the caller has an established business relationship,” and it defines that relationship to include “the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call.” A customer who ordered last month has that relationship. One who last ordered two years ago doesn’t.
The relationship ends early if the customer opts out. The same section provides that a do-not-call request “terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.” A regular who replies STOP and keeps ordering lunch every week is off the list anyway, and the rule gives the restaurant no more than ten business days to honor the request. The earlier post on the established business relationship defense covers how to prove it.
Is the reply to STOP itself a violation?
One reply isn’t, if it’s done right. The FCC’s rule provides that “A one-time text message confirming a request to revoke consent from receiving any further calls or text messages does not violate” the consent rules, so long as it only confirms the request and carries no marketing. A confirmation sent within five minutes is presumed to be covered.
Subway’s confirmation in Soliman was the compliant part. The problem was the offer that followed. Restaurants running more than one program, like a loyalty club, an order-status line, and a catering list, should check that a STOP on one short code actually suppresses the number everywhere the customer would expect.
| Claim | Rule | Exposure | Defenses that answer it |
|---|---|---|---|
| Autodialer or artificial voice | 47 U.S.C. § 227(b)(1)(A)(iii) | Up to $500 per text, up to three times that if willful or knowing | Platform texts a stored list, a text isn’t a voice, consent from sign-up |
| Texts to Registry numbers | 47 C.F.R. § 64.1200(c)(2) and (e) | Up to $500 per violation after more than one text in 12 months, more if willful or knowing | Purchase within 18 months, written permission, safe harbor for errors |
| Texts after STOP | 47 C.F.R. § 64.1200(a)(10) and (d)(3) | Same as above, plus a willfulness argument | One confirmation text, suppression within ten business days, opt-out logs |
| Arbitration of the dispute | Federal Arbitration Act | Class action in court if the clause fails | Conspicuous terms in the sign-up reply, archived versions |
What to pull when a restaurant text claim arrives
- Place a litigation hold on the texting platform’s send logs for the claimant’s number, the keyword or sign-up record, and the point-of-sale order history tied to that number.
- Export every opt-out and do-not-call entry for the number across every short code and program, with timestamps.
- Pull the Registry scrub records and their version dates for each campaign, and flag any number whose last order was more than 18 months before the text.
- Collect the texting vendor contract, the sign-up posters and web forms, every version of the text club terms, and the message templates.
- Have a lawyer review the file before the restaurant answers the demand, contacts the customer, or offers anything to settle.
Step three is the restaurant’s best fact-finding step. Lawyers defending restaurant text claims can often cut a putative class down to the numbers with no order inside the 18-month window. The earlier posts on text-to-join and double opt-in programs and on autodialer defenses after Duguid cover the sign-up and autodialer issues in more depth.
Questions about restaurant text marketing
Does an online order give a restaurant permission to text deals?
For Do Not Call purposes, the order creates an established business relationship that lasts 18 months unless the customer opts out. That’s not the same as written consent to marketing texts from an autodialer, which the FCC’s rules require for autodialed or prerecorded marketing. Most restaurant platforms don’t meet the autodialer definition after Duguid, but a checkbox at checkout costs little and settles the question.
Are order-ready and delivery texts marketing?
Not if they only report the order. A text saying the food is ready or the driver is five minutes away doesn’t encourage a purchase, so it isn’t a telephone solicitation. Adding a coupon for the next order changes that, and a plaintiff will argue the whole message is marketing. Keep the status text and the promotion in separate messages.
Can a restaurant be liable for texts a delivery app sends?
Usually only if the app was acting on the restaurant’s behalf. The question is agency, the same one courts ask about franchisees and dealers, and the earlier post on authorized dealer telemarketing explains how courts decide it. The restaurant’s contract with the app, and who controls the customer list, matter most.
Does a franchisee’s text club expose the franchisor?
It can, if the franchisor controls the campaign or runs the program itself. Subway’s text club was run by the system’s advertising fund, which is why that entity was the defendant. The earlier post on franchisor liability for franchisee texts covers how courts draw that line.
If a customer sues over your restaurant’s texts
If your restaurant is accused of texting customers after they opted out or texting numbers on the Do Not Call Registry, the opt-out logs and the order history behind each number usually decide the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving restaurant text clubs and promotional texts. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act, 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the version in effect on July 20, 2026.
The decisions discussed are Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., 999 F.3d 828 (2d Cir. 2021), and Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., 101 F.4th 176 (2d Cir. 2024).
This post is general information about the Telephone Consumer Protection Act and related laws as of July 21, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.