This is a pandemic case. The buyer ordered $2.1M of personal protective equipment (PPE) from the seller in April 2020 and wired the money. The seller subsequently didn’t deliver, and the buyer cancelled the order. That left the issue of a refund of $1,475,000 (not sure what happened to the other $600k, but it’s not at issue). The court focuses on a text message thread negotiating the refund. The buyer kept demanding a personal guarantee of payment, which the seller rejected. At the end of this thread:
the plaintiff sent a text summarizing the payments expected which included four payments of $368,750 on July 15, August 15, September 15 and September 25, 2020. At 5:33:38 the same day, the defendant responded with a ‘thumbs up’ emoji.
So, what does the thumbs-up emoji mean here? The court says: “there are questions whether text messages and emojis in particular satisfy the statute of frauds. This is particularly true concerning a thumbs up emoji which may convey different meanings.” It’s true that thumbs-up emojis have multiple meanings, like all emojis. See Bardales v. Lamothe, another thumbs-up emoji case that held the thumbs-up didn’t means that a dad disavowed his child. However, the court is wrong about whether there is doubt that text messages and emojis can satisfy the statute of frauds. This is squarely governed by UETA/E-Sign, and the answer is they can. See also CX Digital v. Smoking Everywhere, where a text message thread cost a buyer $1.2M because it constituted a legally binding order.
FWIW, I know of 37 US court opinions referencing the thumbs-up emojis. See the list below.
Either way, the court says:
The plaintiff argues the thumbs up emoji constituted a signature of an executory accord. While the legal use of such an emoji is questionable as noted above, there are surely questions of fact whether the defendant intended to be bound by that emoji where only nine minutes beforehand the defendant categorically asserted he would not sign any document. There are surely questions of fact whether he ever intended to be bound by a written text message in the form of a thumbs up emoji. Therefore, this case cannot be summarily decided on this basis.
I understand why the emoji interpretation slowed down the judge. First, arguably, the thumbs-up was an acknowledgement of the buyer’s request, not an assent. I find that implausible. Second, if the thumbs-up is an assent, what was the seller agreeing to? The entire thread, the most immediate parts of the thread, or just the prior message? This requires the court to interpret the entire thread in context, and the ambiguity about what the putative assent covered could potentially doom the accord.
This week, there was some chatter about the thumbs-up emoji (based on a single Reddit post) that GenZ views the symbol as a signal of boomer passive-aggressiveness. (The Daily Mail, in its standard hyperbolic style, said “Why NOBODY should be using the ‘thumbs up’ emoji in 2022“). I use the thumbs-up emojis extensively, but it does pose some risks. In some cultures, it means F-U; and in the US, using it in online negotiations could be worth a lot of money.
Case citation: Lightstone RE LLC v Zinntex LLC, 2022 N.Y. Misc. LEXIS 5925 (N.Y. Supreme Ct. Aug. 25, 2022)
* * *
Cases referencing thumbs-up emojis:
- 2 Bubbles LLC v. Bowers, 2019 Del. Trial Order LEXIS 38 (Del. Justice of the Peace Ct. Sept. 6, 2019)
- Angelakos v. Inst. for Bldg. Tech. & Safety, 2019 U.S. Dist. LEXIS 164701 (E.D.N.Y. Sept. 24, 2019)
- Bardales v. Lamothe, 2019 U.S. Dist. LEXIS 186273 (M.D. Tenn. Oct. 22, 2019)
- Gonzales v. State, 2019 Ark. App. 600 (Ark. Ct. App. Dec. 11, 2019)
- Moreau v. St. Landry Parish Fire Dist. No. 3, 2019 U.S. Dist. LEXIS 154641 (W.D. La. Sept. 10, 2019)
- Ricks v. Friends of Wwoz, 2019 U.S. Dist. LEXIS 163833 (E.D. La. Sept. 25, 2019)
- United States v. Loethen, 2019 U.S. Dist. LEXIS 208748 (W.D. Mo. Dec. 2, 2019)
- Commonwealth v. Condon, 2020 Mass. App. LEXIS 186 (Mass. Ct. App. Dec. 18, 2020)
- Galloway v. Topre Am. Corp., 2020 U.S. Dist. LEXIS 171333 (N.D. Ala. Sept. 18, 2020)
- Leyva v. Robbins, 2020 WL 1676771 (D. Utah April 6, 2020)
- Moe’s Home Collection v. Davis St. Mercantile, 2020 Tex. App. LEXIS 4951 (Tex. Ct. App. July 6, 2020)
- People v. Ortiz, 2020 Cal. App. Unpub. LEXIS 7372 (Cal. App. Ct. Nov. 10, 2020)
- Sewell v. Daniel, 2020 WL 1800824 (N.D. Ga. Feb. 11, 2020) and 2020 WL 1800935 (N.D. Ga. March 4, 2020)
- State v. Blocher, 2020 Wash. App. LEXIS 573 (Wash. Ct. App. March 10, 2020)
- State v. Bowman, 2020 Wash. App. LEXIS 2463 (Wash. App. Ct. Sept. 8, 2020)
- United States v. Frantz, 2020 CCA LEXIS 404 (Air Force Ct. Crim. App. Nov. 10, 2020)
- Welling v. State, 2020 Ind. App. Unpub. LEXIS 357 (Ind. Ct. App. March 24, 2020)
- Ashley v. Milliken & Co, 2021 WL 8775807 (D.S.C. Nov. 9, 2021)
- Attorney Grievance Commission of Maryland v. Vasiliades, 2021 WL 3616702 (Md. Ct. App. Aug. 16, 2021)
- Eckerd v. SSC North America LCC, 2021 WL 6033684 (N.D. Okla. April 27, 2021)
- Garnier v. O’Connor-Ratcliff, 2021 U.S. Dist. LEXIS 7613 (S.D. Cal. Jan. 14, 2021)
- Hamilton v. County of Madera, 2021 WL 5771669 (E.D. Cal. Dec. 6, 2021)
- State v. Bowman, 2021 Wash. LEXIS 655 (Wa. Nov. 10, 2021)
- Steward Health Care Sys. Llc & Southwest Gen. Hosp. v. Saidara, 2021 Tex. App. LEXIS 6890 (Tex. Ct. App. Aug. 20, 2021)
- United States ex rel. Vinca v. Advanced Biohealing, 2021 U.S. Dist. LEXIS 227966 (M.D. Fla. Nov. 29, 2021)
- United States v. Goodin, 2021 U.S. App. LEXIS 3881 (5th Cir. Feb. 10, 2021)
- United States v. Jindal, 2021 U.S. Dist. LEXIS 227474 (E.D. Tex. Nov. 29, 2021)
- Wash. v. Bd. of Educ. for Chi., 2021 U.S. Dist. LEXIS 237795 (N.D. Ill. Dec. 8, 2021)
- Garnier v. O’Connor-Ratcliff, 2022 U.S. App. LEXIS 20719 (9th Cir. July 27, 2022)
- Golden v. Freddy’s Frozen Custard, 2022 U.S. Dist. LEXIS 182296 (W.D. Tenn. Oct. 5, 2022)
- Jing v. Yan Sun, 2022 U.S. Dist. LEXIS 1902 (E.D.N.Y. January 4, 2022)
- In re Judge Jerry L. Denton, Jr., 2022 WL 884000 (La. Supreme Ct. March 25, 2022)
- In re Kylie P. (d.o.b. 1/16/16), 2022 WL 1073432 (Conn. Superior Ct. Feb. 15, 2022)
- Lightstone RE LLC v Zinntex LLC, 2022 N.Y. Misc. LEXIS 5925 (N.Y. Supreme Ct. Aug. 25, 2022)
- McGill v. State, 2022 Ind. App. Unpub. LEXIS 467 (Ind. Ct. App. April 29, 2022)
- Pfannenstiel v. Kansas, 2022 U.S. Dist. LEXIS 53517 (D. Kansas March 25, 2022)
- Thuet v. Bd. of Educ. of the City of Chicago, 2022 U.S. Dist. LEXIS 183693 (N.D. Ill. October 7, 2022)