Hi TCPAWorld!
Can a visitor form a binding contract just by typing her phone number into your website? Let’s find out!
In King v. Bon Charge, No. 25-cv-00105-SB, 2026 WL 2569331 (D. Del. Aug. 31, 2026), the District of Delaware dismissed a defendant’s breach-of-contract and indemnification counterclaims because the company alleged only that its terms and conditions were “visible” to visitors before they subscribed. The Court explained that alleging the terms were visible does not establish notice, which is required for assent, and without assent there was no contract for King to breach. The dismissal came with leave to amend.
Bon Charge is an Australian online seller of wellness products. According to its counterclaim, Phyllis King visited the company’s website in 2021 and entered her phone number into the site’s subscriber link. She then received SMS messages from Bon Charge for the next three years. The company alleged that King could easily have unsubscribed at any point along the way but held off in order to tee up this litigation. She eventually unsubscribed two years ago and has not received a message since.
King sued as a putative class representative under the TCPA. In an earlier ruling, the Court let her Do-Not-Call Registry claim proceed and dismissed the rest of her claims with leave to amend. Bon Charge then answered and counterclaimed.
Bon Charge’s counterclaim alleged that its terms and conditions were displayed to prospective subscribers before they signed up, that King entered into a contract on those terms when she typed in her number, and that the terms included a “Duty to Notify and Indemnify.” Its theory was straightforward: King breached that duty by never telling the company she no longer wanted the messages, and that she therefore owes it indemnification.
King moved to dismiss.
The main issue of the counterclaim was mutual assent. A user can sometimes assent to website terms simply by visiting the site. That’s called a browsewrap agreement. However, that requires the user to be on actual or inquiry notice of the terms. Bon Charge only pleaded that its terms and conditions were “visible to the prospective subscriber … before subscribing.” The Court took the counterclaim’s well-pleaded facts as true but refused to treat that allegation as anything more than a conclusion. Bon Charge never alleged that King saw the terms, and the Court would not infer that she knew they were there, because the pleading said nothing about the link to the terms being “conspicuous enough to satisfy the high standard for browsewrap terms.” Design with Friends, Inc. v. Target Corp., No. 1:21-CV-01376-SB, 2022 WL 4448197, at *3 (D. Del. Sept. 23, 2022).
Bon Charge tried to solve that problem by telling the Court it was not relying on a browsewrap theory at all. That did not help, because Bon Charge offered no alternative theory to contract formation. To succeed the company had to allege that King’s conduct “objectively manifested” an intent to undertake a “contractual obligation.”
This counterclaim did not fail because indemnification theories do not work. It failed on the pleading, and that means it can be fixed, but only if the record supports it.
A company that wants to enforce its own terms must allege facts establishing that the subscriber had actual or inquiry notice. Inquiry notice can be pleaded by showing: where the link to the terms sat in relation to the field that captured the number, how it was labeled, how it was set off from the rest of the page, and what the visitor had to scroll past or click to submit.
Bon Charge has leave to amend, so we may soon find out if it has some records to support its counterclaim.
We will keep you posted, TCPAWorld!