Regan v. Pinger, Inc

Background

Lucas Regan was a Sideline subscriber. Sideline, a paid mobile-phone application developed by Pinger, allowed users to create an alternative telephone line. Regan created 186 Sideline accounts between April 23, 2016, and March 16, 2019. The account-creation screens used during that period displayed notices stating that registering or tapping certain buttons meant the user agreed to Sideline’s terms and conditions or terms of service. The terms were available through hyperlinks near the relevant buttons. Regan was also periodically shown similar language when logging in.

The Sideline terms of service included an arbitration provision requiring that “any dispute” between the user and Pinger be resolved through binding arbitration. The later versions also included a 30-day written opt-out provision. The opinion states that Regan never opted out.

After Regan allegedly canceled his accounts in or around March 2019, Pinger allegedly sent him repeated text messages urging him to sign up for Sideline. Regan alleged that the messages were sent without his consent, continued after he replied with a request to stop, invaded his privacy, caused annoyance, and depleted his cellphone battery. He brought a claim under the Telephone Consumer Protection Act.

Arguments

Pinger moved to dismiss and compel arbitration. Regan argued that he never agreed to Sideline’s terms of service. He also argued that, even if he had agreed to them, the arbitration provision did not cover his Telephone Consumer Protection Act claim because the messages were unrelated to his use of the Sideline account and were sent after he had canceled his subscription and asked Pinger to stop contacting him.

Court’s analysis

The court concluded that Sideline’s terms were neither a traditional browsewrap agreement, in which a user supposedly agrees merely by using a website, nor a traditional clickwrap agreement, in which a user clicks an “I agree” box after reviewing terms. Instead, the court characterized the arrangement as a hybrid sign-in-wrap agreement. The notices were near the relevant buttons, used contrasting colors for the hyperlinks, and expressly stated that registering or tapping the buttons meant agreeing to the terms.

The court held that Regan assented to the terms of service when he created his 186 accounts. It rejected his argument that the wording “By registering” was insufficient because the nearby button said “Create Account,” reasoning that the application appeared to use “create” and “register” interchangeably and that the notice’s location made its meaning clear.

The court then considered whether the broad arbitration provision covered Regan’s claim. It found that the Sideline terms directly addressed Pinger’s ability to contact users at the mobile number provided during registration about an account or setting up an account. Regan used his mobile number to create and operate the accounts, and the court therefore found a direct connection between the alleged messages and the parties’ contractual relationship. Because the arbitration clause covered “any dispute” and doubts about its scope had to be resolved in favor of arbitration, the court held that the Telephone Consumer Protection Act claim fell within the provision.

Disposition

The court granted Pinger’s motion to compel arbitration. It also dismissed Regan’s claim against Pinger without prejudice. The opinion does not state that the court decided whether Pinger violated the Telephone Consumer Protection Act.