Hi, TCPAWorld! I’m Kelly Sandberg—the newest law clerk at Troutman Amin, LLP—and this is my first blog on TCPAWorld!
A great way to avoid massive class action litigation—especially in the high-stakes realm of the TCPA—is with a binding arbitration agreement.
In Preminger v. Red Robin International, Inc., the restaurant chain believed it had successfully implemented one to protect against such consumer lawsuits, but a flaw in it’s website design created a major issue. Michael Preminger v. Red Robin Inc., No. 3:25-cv-772-WWB-MCR, 2026 WL 925635 (M.D. Fla. Apr. 6, 2026). Ultimately, the United States District Court for the Middle District of Florida denied Red Robin’s motion to compel arbitration. The court held that the plaintiff was not legally bound by the arbitration clause hidden on the company’s website. As a result, the plaintiff successfully bypassed arbitration and is permitted to proceed with his TCPA lawsuit in federal court.
The situation began in November 2020 when Michael Preminger visited Red Robin’s website to join its “Red Robin Royalty” loyalty program. During the enrollment process, he opted-in to receive SMS text messages. Sometime later, Preminger withdrew his consent, but he alleges that Red Robin ignored his opt-out request and continued to send him multiple automated promotional texts. Preminger sued the company for violating the TCPA, as well as the FTSA.
In an attempt to halt the litigation, Red Robin argued that by clicking “submit” on the sign-up form, Preminger had legally agreed to an arbitration clause that explicitly waived his right to sue in court. To determine if this defense held up, the court had to evaluate the legal requirements for internet contracts under the FAA and Florida state law.
The FAA strongly favors arbitration, but it has a fundamental rule: arbitration is strictly a matter of contract.
A court cannot force someone to arbitrate unless there is clear, objective proof they actually agreed to do so.
In evaluating online assent, the law generally recognizes two main types of internet agreements. “Clickwrap” agreements require a user to explicitly check a box acknowledging they have read and agree to specific terms before proceeding; these are highly enforceable. “Browsewrap” agreements, however, simply provide a hyperlink to the terms without forcing the user to acknowledge them before completing a transaction.
Because Red Robin’s website allowed users to sign up without explicitly acknowledging the specific text messaging terms, the court classified it as a browsewrap agreement.
For a browsewrap agreement to be enforceable in Florida, the hyperlink must be conspicuous enough to put a reasonably prudent person on “inquiry notice”—meaning the design, font, layout, and surrounding text must make it obvious to an ordinary consumer that they are entering into a binding contract and need to investigate the terms.
The reason Red Robin’s arbitration agreement failed to be enforceable came down to a confusing layout that essentially created a “two-link trap.” While Red Robin did make the link to its “SMS Terms & Conditions” bright red and clearly visible, the sign-up page was misleading because it contained links to two entirely separate agreements with nearly identical names. Right above the final submit button, the website prompted the user with the statement, “By selecting submit, I attest that I… have read the Terms and Conditions.”
This specific prompt linked only to the Red Robin Royalty Rewards Terms, which did not contain an arbitration clause. The arbitration provision was isolated in the separate SMS Terms & Conditions link, which the user was never explicitly asked to read or acknowledge.
The court concluded that an ordinary, reasonable person would be confused by the presence of two distinct “terms and conditions” links.
A consumer could easily and rationally assume they only needed to read the terms they were explicitly asked to attest to, completely missing the second link.
Because of this confusing presentation, the court determined Preminger was never put on proper inquiry notice of the arbitration provision, meaning no valid contract to arbitrate was ever actually formed.
So, the takeaway here…while it’s fine to have multiple terms and conditions for different situations…companies should make sure the arbitration agreements appear in each of those terms and conditions across the board.
