FLASHBACK- Court Finds TCPA Claim Not Within the Scope of Tomocredit’s Arbitration Provision and It Feels Like 2012 All Over Again

For a while there it was unclear whether TCPA claims were subject to arbitration in many jurisdictions. A case involving Jiffy Lube back in 2012 had cast doubt on the idea that typical “arising out of” arbitration provisions applied to TCPA messaging–which usually had little to do with an underlying contractual relationship. In Jiffy Lube a guy had gone in for an oil change and received promotional text messages after the fact. The Court found the arbitration agreement covering claims “Arising out of” the visit did not encompass unwanted post-visit marketing. Since 2012, however, businesses have mostly gotten smarter about their arbitration clauses– they now generally cover any dispute between the parties– and courts have mostly gotten more generous about enforcing the provisions in TCPA suits as a result. But in Johnson v. Tomocredit, Inc. 2026 WL 1963112 (N.D. Cal. July 7, 2026) a TCPA plaintiff was able to avoid an old-school style arbitration agreement in a class action– and there’s a lesson here for everyone. In Johnson the plaintiff claims he received unwanted text messages from Tomocredit he did not consent to. Tomocredit, however, demonstrated that he had filled out an application online. The online application included an arbitration agreement for all claims “arising out of” the terms of use for the online form. One little problem– Tomocredit couldn’t connect the dots between the Plaintiff’s claim and the form. The Plaintiff claimed he did not provide his phone number to Tomocredit as a part of his online application– a fact Tomocredit did not dispute. As a result there was nothing tying the TCPA claim to the use of the Tomocredit website. So arbitration was denied. All of this begs the question, of course– where did the phone number come from? Maybe Tomocredit has evidence Plaintiff did provide the number on the online form– but it failed to make this point effectively if so. Regardless pretty clear take away here– if you are sending marketing messages to consumers who visit your website you MUST make sure the website terms are broad enough to encompass claims arising under the TCPA. Merely citing claims “arising out of” the use of the website may not be enough.