That thumbs-up emoji could be legally binding

An op-ed by Tripp Scott director Charles Tatelbaum

AS PUBLISHED IN THE SUN SENTINEL

With the federal government’s decimation of the Consumer Financial Protection Bureau, along with the mass layoffs at federal agencies as a result of the DOGE initiative, and then compounded by the government shutdown, there is a void in governmental support to assist small businesses and those who are self-employed in the prevention and remediation of unfair, deceptive business practices.

As a result, the Florida attorney general’s office must substantially expand its consumer protection division to include much-needed protections for small businesses and the self-employed. Absent that occurring promptly, Florida will become an even greater magnet for those perpetrating unfair schemes.

Education is a critical component of the expansion that is needed. The following two examples are highlights of emerging practices that affect those in business who can least afford it and are unable to engage the bevy of attorneys needed to provide protection and enforcement from unfair and strange practices.

Under Florida law, for the sale of goods or real estate and in many other instances, a contract needs to be in writing and signed by the parties to be enforceable. However, with the proliferation of the use of text messages on mobile devices, a number of courts have now held that an exchange of text messages can (accidentally or not) constitute a binding contract. Unscrupulous schemers are now using text messages to trap unsuspecting businesspeople into agreeing to an unwanted contract. Everyone must be cautious when using text messaging to speak about the terms of a contemplated agreement.

Courts have recently also held that the use of an emoji can be a substitute for written language. This holds particularly true with the use of a “thumbs-up” emoji, which can mean either agreement with the prior text message or acknowledgment of receipt of the prior text message.

The bottom line is that text messaging should not be used as a substitute for contract negotiations.

Florida law holds that a check is similar to a contract, in that the parties are bound by the writings on the check.

Of late, we have seen a resurgence of the dormant scheme in which an entity or an individual that is disputing a debt will send a check for less than the amount claimed to be due with a restrictive endorsement on the front or back of the check indicating that acceptance of the check constitutes payment in full of the disputed debt.

Since many business entities use a lockbox arrangement with their banking facilities, there is no one to review the restrictive endorsement when the check is deposited by the lockbox bank as agent for the payee, then the counterparty will claim that the disputed account has now been satisfied in full. This then creates an area for dispute that allows unscrupulous businesses to claim fictitious disputes and then shortchange a vendor or creditor by paying a lesser amount. 

As a result, when negotiating the resolution of a disputed bill, one should obtain competent legal counsel to help create language in the settlement communications that precludes this type of attempted subterfuge, which is gaining in popularity.

Protect yourself, protect your business and maybe leave the emojis to less professional environments.