The takeaway from this decision is that click-through agreements are the best choice for companies when this onboarding method is feasible. But even when it’s not, companies can still protect themselves by calling attention to relevant terms and conditions and explicitly stating that such terms will apply to the user. Such disclosures are particularly advisable for call-to-action displays that invite consumers to join mobile alert programs like the one at issue in this case, as well as including a link to the terms again via text message after the consumer opts in.
Finally, while not relevant to the court’s decision in the end, it was also established that the plaintiff, Phil Nghiem, was an attorney previously employed by a TCPA plaintiffs’ firm and he “did sign up for a significant number of mobile alerts programs within a few months.” For those companies on the receiving end of TCPA demand letters, it may not come as a surprise that Mr. Nghiem currently works for Manning Law according to this firm’s website. With no apparent slowdown of plaintiffs actively soliciting the text messages they later seek to cash in on, it is more important than ever that companies engaging consumers through calls or texts ensure that they are following TCPA best practices.