A recent decision from the U.S. Court of Appeals for the Eighth Circuit reinforces an important point for businesses that rely on text messaging and phone outreach: well‑drafted arbitration provisions can still protect you from litigation risk—sometimes long after a customer relationship ends.
In VonDeylen v. Aptive Environmental, the court ruled that a former customer’s Telephone Consumer Protection Act (TCPA) claims over allegedly unwanted text messages had to be resolved in arbitration, not in court, based on the arbitration clause in the parties’ service agreement.
The ruling serves as a reminder that courts will enforce thoughtfully drafted arbitration clauses in the TCPA context—and that these provisions can play a meaningful role in helping mitigate litigation risk for businesses using SMS and telephone communications.
Our client, Aptive, gave us permission to share this decision that involves issues we see regularly when advising companies that use SMS and telephone outreach. The decision offers concrete guidance on what courts expect to see in enforceable arbitration provisions.
The Dispute: Text Messages After the Relationship Ended
The plaintiff in the case entered into a service agreement with Aptive Environmental for pest control services that included a broad arbitration provision covering any dispute or claim “arising out of or relating to” the agreement, the services provided, or the parties’ relationship. More than two years after the last service was performed, the plaintiff, whose number was listed on the National Do Not Call Registry, received two text messages from Aptive related to account autopay and an upcoming technician visit. The plaintiff filed suit, alleging the messages violated the TCPA.
We moved on Aptive’s behalf to compel arbitration, arguing that the dispute fell squarely within the scope of the arbitration clause in the parties’ agreement because the messages related to the parties’ prior contractual relationship.
The Lower Court—and the Reversal
The district court initially denied the motion to compel arbitration, concluding that the texts were sent too long after the relationship ended and were therefore outside the scope of the agreement.
On appeal, the Eighth Circuit disagreed.
The Eighth Circuit held that the texts were sufficiently related to the parties’ prior relationship and the services provided under the agreement—even though they were sent years later. The Eighth Circuit also pointed to a survival clause in the agreement, signaling that the parties intended that certain obligations, including arbitration, extend beyond the contract’s expiration.
As a result, the Eighth Circuit reversed the lower court and ordered the TCPA claims to proceed in arbitration.
What This Means for Businesses Using SMS and Phone Outreach
Arbitration is not a silver bullet—but when drafted and deployed correctly, it can be a powerful risk‑shaping tool for businesses facing TCPA exposure. This decision offers several important lessons:
- Broad “relating to” language matters. Courts are more likely to compel arbitration when the clause clearly captures disputes connected to the parties’ relationship, not just active services.
- Survival clauses can be critical. Explicit language stating that arbitration obligations survive contract termination can significantly strengthen enforceability, especially for claims arising later.
- Arbitration can reduce class action risk. While it does not eliminate TCPA liability, arbitration may limit class exposure and keep disputes in a more controlled, efficient forum.
In this case, Aptive successfully enforced its arbitration agreement at the appellate level—redirecting TCPA claims away from civil court and into arbitration. The outcome illustrates how careful agreement drafting can provide real, practical protection when consumer claims arise, even well after services have ended.
Why We’re Seeing More of These Cases
We’re seeing an uptick in TCPA claims like this one for several reasons that businesses should be aware of.
First, SMS and account‑related messaging is expanding rapidly, often continuing beyond the active life of a customer relationship. Messages tied to billing, account status, service reminders, re‑engagement efforts, or “win-back” campaigns, while operationally routine, can still trigger TCPA scrutiny when sent to former customers or numbers listed on the Do‑Not‑Call Registry.
Second, plaintiffs are increasingly testing the outer limits of arbitration clauses, particularly where communications occur months or years after a contract has ended. These cases often hinge not on whether an arbitration clause exists, but on how broadly it is written and whether it survives termination of the agreement.
Finally, courts continue to grapple with how modern communications fit within legacy contract language. As a result, businesses are seeing more disputes over whether post‑termination texts or calls are sufficiently “related to” the underlying agreement to require arbitration.
Arbitration Is Not a Substitute for Compliance
Although arbitration clauses can make sure that disputes are resolved in the desired forum and without class allegation, compliance is always the best defense when it comes to the TCPA. Businesses should continue to focus on consent management, opt‑out handling, and vendor oversight as the first line of defense. Make sure that you review your SMS and telephone outreach programs frequently and conduct regular audits to ensure compliance. We recommend retaining outside counsel with deep experience in this area to conduct your audit.
That said, if your organization uses text messaging or telephone outreach, this decision is a timely reminder to review your customer agreements with an eye toward arbitration scope, survival language, and enforceability—before a dispute ever arises.
If this decision raises questions about your agreements or consumer outreach practices, we’re happy to help. Please reach out.
