Thompson v. Brew Culture: Silence as Assent in SMS Arbitration Di

What Happened in Thompson v. Brew Culture?

Gwendolyn Thompson visited a 7 Brew coffee stand in Clinton, Mississippi, on February 29, 2024, during a promotional event offering free coffee. Customers could enroll in the company’s rewards program by providing a mobile phone number. Thompson voluntarily supplied her number, although she later maintained that she did so only to receive the promotional drink.

Immediately after enrollment, she received a confirmation text welcoming her to the rewards program. The SMS message contained a prominent hyperlink to general terms of service maintained by Touchpoint Restaurant Innovations, the third-party provider administering the loyalty infrastructure. It also instructed her to reply “STOP” to opt out. Thompson did not send that reply.

The linked terms stated that using Touchpoint’s servicesincluding loyalty and rewards programsconstituted acceptance of the agreement. They also contained an individual arbitration provision, a jury-trial waiver, and a class-action waiver. The definition of covered parties extended beyond Touchpoint to certain subsidiaries, affiliates, agents, employees, authorized users, and beneficiaries of the services.

According to the court’s order, Thompson received four allegedly unwanted marketing messages between February 29 and March 19, 2024. Some messages welcomed her to the program or offered benefits such as a $2 reward and 50% off a drink. She filed a proposed class action under the Telephone Consumer Protection Act, commonly known as the TCPA, and demanded a jury trial.

Brew Culture’s Motion to Compel Arbitration

Brew Culture did not initially ask the court to determine whether the promotional texts violated the TCPA. Instead, it moved to compel arbitration, arguing that Thompson had agreed to resolve the dispute privately and individually.

Thompson opposed arbitration on two principal grounds. First, she argued that she did not knowingly accept the arbitration clause because she had not read or even seen the linked terms. Second, she argued that the contract identified Touchpoint rather than Brew Culture and therefore should not cover her claims against the coffee company.

The court ultimately sided with Brew Culture. On August 1, 2025, U.S. District Judge Henry T. Wingate granted the motion to compel arbitration, stayed the lawsuit, and denied the alternative request to strike the class allegations and jury demand as moot. The TCPA allegations were not decided on their merits; they were redirected to arbitration.

How the Court Found an Enforceable SMS Arbitration Agreement

The Federal Arbitration Act generally makes written arbitration provisions enforceable on the same grounds as other contracts. Before ordering arbitration, however, a court ordinarily must determine whether the parties formed a valid agreement and whether the dispute falls within that agreement’s scope. State contract law supplies many of the rules used to answer the formation question.

Mississippi’s Duty-to-Read Rule

Applying Mississippi law, the court emphasized a familiar contract principle: a person generally cannot avoid a written agreement merely by saying that she did not read it. The decision cited Mississippi cases holding that contracting parties are charged with knowledge of documents they execute or accept.

That principle is straightforward when someone signs a paper contract. Applying it to a text-message hyperlink is more controversial. Thompson did not sign her name, check a box labeled “I agree,” or reply “AGREE.” The court nevertheless concluded that the confirmation text supplied sufficiently conspicuous notice because it provided a direct link to the terms and an immediate method of opting out.

Silence Combined With Notice and Continued Participation

The decision should not be reduced to the claim that silence always creates a contract. American contract law still requires mutual assent, normally demonstrated through an offer and acceptance. Agreements may sometimes be inferred from conductor, in narrower circumstances, from silencebut context matters.

In Thompson, the court relied on more than the absence of a reply. It viewed the entire sequence as evidence of assent: Thompson voluntarily enrolled, received an immediate confirmation, had access to the linked terms, was told how to opt out, did not opt out, and remained in the rewards program.

The court analogized this conduct to Fifth Circuit decisions recognizing assent when a person continues a relationship after receiving notice of an arbitration policy. For example, Kubala v. Supreme Production Services involved an employee whose continued employment was expressly conditioned on acceptance of an arbitration agreement. The Thompson court treated continued participation in the rewards program as a similar manifestation of consent.

Why Brew Culture Could Invoke Touchpoint’s Terms

The arbitration agreement expressly applied to a broader group of related entities and participants. The court reasoned that Brew Culture qualified as a business partner operating within Touchpoint’s loyalty-services system. It also found that Thompson’s TCPA claims arose directly from her enrollment and participation in that program.

Because the clause covered “any and all disputes” and included related parties, the court concluded that both Brew Culture and the TCPA controversy fell within its scope. That conclusion transformed what began as a proposed consumer class action into an individual arbitration proceeding.

Why the “Silence as Assent” Theory Is Controversial

The ruling is notable because the allegedly important act of assentproviding a phone numberoccurred before the consumer received the text containing the hyperlink. Thompson could not have reviewed that particular notice before supplying her number. The court therefore placed substantial weight on what happened afterward: delivery of the SMS notice, failure to reply STOP, and continued participation.

Legal commentators have described this reasoning as unusual. One concern is that “Reply STOP to opt out” is commonly understood as a command for stopping marketing messages, not necessarily as a method for rejecting an arbitration agreement. A consumer might reasonably believe that silence means “continue sending rewards,” while never realizing that it may also be interpreted as surrendering access to a jury and class proceeding.

There is also a conceptual difference between accepting a rewards program and accepting every term placed behind a hyperlink. Courts examining electronic contracts often focus on two questions:

1. Did the interface provide reasonably conspicuous notice of the terms?
2. Did the user perform an action that unambiguously manifested agreement?

Thompson took a comparatively business-friendly approach to those questions. It found conspicuous notice in the linked confirmation text and inferred assent from non-rejection plus continued participation. Other courts have demanded a much clearer connection between the contractual notice and the consumer’s affirmative action.

How Thompson Compares With Other Online Contract Cases

Nguyen v. Barnes & Noble

In Nguyen v. Barnes & Noble, the Ninth Circuit declined to enforce website terms where the consumer had no actual knowledge of them and the site did not place users on sufficient inquiry notice. Merely displaying hyperlinks near buttons was not automatically enough to create a contract.

Meyer v. Uber Technologies

In Meyer v. Uber Technologies, the Second Circuit reached the opposite result. Uber’s mobile registration screen presented a reasonably conspicuous notice that creating an account meant agreeing to hyperlinked terms. The screen design and registration action were closely connected, supporting a finding of assent.

Berman v. Freedom Financial Network

The Ninth Circuit’s Berman decision emphasized that a business seeking to enforce internet terms generally needs both conspicuous notice and an unambiguous manifestation of assent. Fine print, poorly differentiated hyperlinks, or buttons that do not clearly communicate contractual significance can undermine formation. Notably, Berman also involved proposed TCPA class claims.

Cullinane v. Uber Technologies

The First Circuit refused to enforce Uber’s arbitration provision in Cullinane because the registration interface did not provide sufficiently conspicuous notice under the applicable law. The case demonstrates that even a famous company with sophisticated app design can lose an arbitration motion when its disclosure blends into the surrounding screen.

Together, these decisions show why Thompson v. Brew Culture should not be read as a universal rule declaring that every ignored text creates binding arbitration. Outcomes depend heavily on state contract law, wording, screen design, hyperlink visibility, opt-out procedures, timing, and the consumer’s subsequent conduct.

The Relationship Between TCPA Claims and Consumer Arbitration

The TCPA restricts certain automated calls, prerecorded communications, and marketing practices. Text messages can fall within its protections, and consent is often a central issue in litigation over promotional SMS campaigns.

An arbitration ruling does not necessarily establish that a company obtained valid telemarketing consent or complied with every TCPA rule. It changes who decides those questions and how they are resolved. Rather than presenting the case to a federal judge or jury, the consumer generally proceeds before a private arbitrator under the governing agreement.

The procedural difference can be enormous. The Touchpoint terms required individual arbitration and prohibited class actions, representative proceedings, and class arbitration. As a result, compelling arbitration removed the mechanism Thompson had selected to pursue claims on behalf of other recipients.

The American Arbitration Association maintains consumer arbitration rules covering filing procedures, neutral selection, hearings, costs, and awards. Its consumer process limits certain fees paid by individuals, although the practical economics of bringing a small individual claim can still differ considerably from participating in a class action.

A Consumer Financial Protection Bureau study focused on financial products found that relatively few consumers pursued individual arbitration, while class settlements could provide relief to larger groups. That research concerned consumer finance rather than coffee rewards, but it helps explain why class-action waivers remain such an important feature of consumer arbitration disputes.

Lessons for Businesses Using SMS Rewards Programs

Provide Notice Before the Consumer Acts

The safest design is not to rely on a contract delivered only after enrollment. Display the material termsor a clear contractual notice with a conspicuous hyperlinkbefore the consumer submits a phone number. The disclosure should appear next to the relevant button, field, or enrollment instruction.

Request Affirmative Assent

A checked box, a clearly labeled enrollment button, or a required reply such as “AGREE” creates stronger evidence than silence. A company may have won in Thompson, but designing an entire compliance program around the phrase “the customer never replied” is a little like using a paper umbrella during hurricane season. Technically, an umbrella is present. Confidence remains limited.

Mention Arbitration in the Disclosure

Businesses should not assume that a generic “Terms” hyperlink will always suffice. A stronger disclosure expressly states that enrollment includes agreement to individual arbitration and a class-action waiver. The text should be legible, understandable, and visually separated from promotional language.

Separate Marketing Consent From Contract Acceptance

Consent to receive texts and assent to arbitrate disputes are different legal concepts. Combining them carelessly can create ambiguity. A well-designed flow records each decision separately and does not treat a marketing opt-out command as though its contractual meaning were self-evident.

Preserve Reliable Evidence

Companies should retain the exact SMS template, terms version, hyperlink destination, timestamps, delivery records, enrollment source, user actions, and opt-out activity. Screens and terms change. Without version-controlled evidence, a company may be forced to prove yesterday’s interface using today’s webpage and someone’s optimistic memory.

Lessons for Consumers Receiving Promotional Texts

Consumers should pay attention to confirmation messages received immediately after joining loyalty or discount programs. A text that appears to contain only a welcome message may link to terms governing dispute resolution, data use, recurring communications, account rules, and liability limitations.

When a message offers an opt-out command, use it promptly when continued participation is unwanted. Save screenshots of the enrollment screen, confirmation text, linked terms, and any STOP reply. These records may become important if there is later disagreement about notice, consent, or the version of the terms supposedly accepted.

Most importantly, do not assume that failing to open a hyperlink guarantees that its terms are unenforceable. Courts frequently distinguish between whether a person actually read a contract and whether the business gave adequate notice and obtained objective assent. “I did not read it” may be emotionally persuasive, but contract law has heard that sentence beforeand it rarely gasps in surprise.

Practical Experience: Building a Better SMS Consent Journey

Consider a typical promotional launch modeled on the practical issues exposed by Thompson v. Brew Culture. A restaurant is opening a new location and expects hundreds of customers. The marketing team wants a frictionless rewards signup: customers provide a phone number, receive a free item, and begin receiving offers. The legal team wants enforceable terms, documented marketing consent, an arbitration agreement, and a class-action waiver. The technology vendor wants the entire process reduced to one field and one cheerful button.

The first version often looks efficient but legally fragile. A sign says, “Enter your number for a free drink.” The customer gives the number to an employee, who types it into a tablet. Seconds later, an automated text arrives with a short link and “Reply STOP to opt out.” The company’s terms may be perfectly drafted, but the user experience does not clearly explain that providing a number or remaining enrolled signifies acceptance of a major dispute-resolution provision.

A better implementation begins before the phone number is submitted. The screen might state: “By selecting Join Rewards, you agree to the Rewards Terms, including individual arbitration and a class-action waiver, and consent to receive recurring promotional texts. Consent is not required to make a purchase.” The terms and privacy links should be visible, readable, and easy to open. The button should say “Join Rewards,” not something vague like “Continue” or “Get It.”

The next improvement is separating decisions. The program can record contractual acceptance through the enrollment button while offering a distinct checkbox or disclosure for marketing consent where legally appropriate. The confirmation text can then summarize the enrollment and provide a straightforward marketing opt-out. This avoids forcing “STOP” to perform two jobs: stopping texts and supposedly rejecting an arbitration agreement.

Operational experience also shows the importance of testing the process on actual phones. A disclosure that looks obvious on a 27-inch designer monitor may disappear beneath a mobile keyboard, wrap into six lines, or render the hyperlink in nearly invisible gray. Compliance teams should test different devices, screen sizes, operating systems, dark mode, accessibility settings, and language versions.

Recordkeeping is the final piece. The database should preserve the terms version accepted by each user, the precise disclosure displayed, the date and time, the phone number, the location or campaign source, and the user action indicating assent. When terms change, the business should decide whether fresh notice or renewed acceptance is necessary rather than silently replacing the page behind an old hyperlink.

This practical experience leads to a simple conclusion: the strongest SMS arbitration program is not the one that stretches silence into consent. It is the one that makes the consumer’s decision unmistakable. Clear design reduces litigation risk, improves consumer trust, and gives courts objective evidence instead of a philosophical puzzle about what someone meant by doing absolutely nothing.

What Thompson v. Brew Culture May Mean Going Forward

Thompson gives businesses a useful example of a court enforcing arbitration through an SMS-based rewards relationship without a traditional signature or explicit “I agree” reply. It suggests that conspicuous notice, accessible linked terms, an opt-out instruction, and continued participation may collectively establish assent under some state-law frameworks.

Its reach should not be exaggerated. The opinion came from a federal district court, not the U.S. Supreme Court or a federal court of appeals. Other courts may distinguish it based on different state laws, interface designs, wording, consumer conduct, or the relationship between the advertised benefit and the linked contract.

The decision is therefore better understood as a warning than a universal formula. Consumers should not treat confirmation texts as meaningless digital confetti. Businesses should not assume that every silent recipient has knowingly waived a jury trial. Both sides benefit when electronic agreements communicate consequences directly rather than hiding a courthouse-sized legal issue behind a coupon-sized link.

Conclusion

Thompson v. Brew Culture illustrates how modern contract formation can occur through a sequence of small digital events: providing a number, receiving a text, encountering linked terms, declining to opt out, and continuing to use a service. The court found that this combination created a valid agreement requiring individual arbitration of Thompson’s TCPA claims.

The most important lesson is not that silence always equals acceptance. It is that courts evaluate objective notice and conduct within context. A silent consumer may sometimes be bound when a business clearly communicates the terms and provides a meaningful opportunity to reject them. At the same time, companies that depend on silence accept unnecessary risk when a simple affirmative-consent step could produce much stronger evidence.

In digital contracting, clarity remains the best policy. It is also cheaper than asking a federal judge to explain what an ignored coffee-rewards text really meant.