Unreported / Non-Citable
Background
Robert Freund, a Los Angeles resident, sued Groupon, Inc., whose principal place of business is in Chicago, in a putative class action under the Telephone Consumer Protection Act. The complaint alleges that after he opted in to recurring marketing texts on March 29, 2026 and then opted out, Groupon sent more marketing messages. Those are allegations; the order does not decide them.
Groupon moved under 28 U.S.C. section 1404(a) to transfer the case to the Northern District of Illinois based on a forum selection clause in its Terms of Use, or alternatively to compel arbitration. Its evidence showed that on March 29, 2026 the user of Freund's number clicked a 'Get $10 Off $20 local deal' button beneath text saying the click also meant agreement to Groupon's 'Terms (incl. arbitration) & Privacy Policy.' The February 2026 Terms allow disputes only in a state or federal court in Cook County, Illinois, or the Northern District of Illinois.
Freund did not dispute pressing the button. He argued the notice was not reasonably conspicuous, saying it looked smaller on his phone than in Groupon's screenshot. Groupon relied on inquiry notice, not actual notice.
The Court’s Holding
Judge Corley granted the motion and transferred the case. She assumed California contract law applied because both sides relied on Ninth Circuit cases applying it, and held Groupon had to prove an agreement by a preponderance of the evidence. Because Freund received a link to the terms but did not separately check a box, the inquiry-notice sign-in wrap test applied: reasonably conspicuous notice plus an action that unambiguously manifests assent.
The notice was conspicuous. The link text was underlined and capitalized, legible, and placed directly above the sign-up button on an uncluttered screen. Freund's not reading it was irrelevant under the reasonably prudent user standard, and his unsupported claim that it looked smaller on his phone, with no alternative screenshot, did not displace Groupon's exhibit. The court distinguished Ferrell, Berman and Godun, where terms were tiny, barely legible, or outside the action flow. Transaction context was neutral: Freund had a longstanding account and was told to expect recurring texts, but there was no full registration, payment entry or app download. The advisal tied clicking to the terms, so clicking manifested assent.
Freund did not contest that the clause covers his claim. The court did not reach Groupon's 2011, 2012 and 2015 theories, and relied on the February 2026 Terms because the April 2026 Terms' clause is identical. Under Atlantic Marine, the court ignored Freund's forum choice and private interests. He failed to show public-interest factors overwhelmingly disfavor transfer, given shared state interests, Illinois governing law, the nationwide class allegations and mixed congestion data. The arbitration motion was not reached.
Key Takeaways
- Courts apply the Ninth Circuit's inquiry-notice test to sign-in wraps: reasonably conspicuous notice of the terms plus a click that unambiguously signals assent to them.
- Conspicuousness is judged by what a reasonably prudent user would have seen, so a plaintiff's statement that he did not read the link does not defeat enforcement.
- A link placed directly above the action button, underlined, capitalized and legible, can suffice even though it is not blue.
- A plaintiff claiming a mobile display differed from the defendant's screenshot should submit specific evidence, such as his own screenshot; a conclusory assertion was not enough here.
- Once a valid forum selection clause is shown, the party resisting it must show that public-interest factors overwhelmingly disfavor transfer, a burden rarely met.
Why It Matters
This is an unpublished district court order, so it is persuasive only, but it shows how a Northern District of California judge applies Godun, Chabolla and Berman to a short text-message sign-up screen. It also shows the Atlantic Marine burden: once formation was found, the plaintiff's California residence and a mixed congestion picture did not block transfer.
The order is a transfer, not a final judgment. The TCPA merits, whether Freund revoked consent, and Groupon's arbitration demand remain undecided, and the transferee court in Illinois will take up the case.