/>iWhen the Czar first stumbled upon the lead generation industry the prevailing notion was that litigators filled out forms to receive calls. And they certainly do.
But that’s not the only way TCPA lawsuits arise from third-party leads. Sometimes website operators fraudulently manufacture leads and sell bad data. This happens in two ways– tricking consumers into providing consent they didn’t know they were providing, and selling outright fraudulent data.
Either way it leads to telemarketers calling consumers who never asked to be called. Terrible.
As soon as the Czar realized this was happening in the industry–and that there were fraud detection tools available to stop it–I created Responsible Enterprises Against Consumer Harassment (R.E.A.C.H.) to put an end to these vile practice (and others.) So that next time litigator fills out a form online and then sues for “unwanted” calls we can catch him!
Unfortunately there are a great many companies out there that have not joined R.E.A.C.H., presumably because they do not want to sell only valid clean leads. Among those companies and Prospects DM and C4R Media Corp.
Now I am not saying Prospects or C4R Media Corp is a bad actor, but what I am saying is in Davis v. Clear Health, LLC 2024 WL 4041421 (N.D. Oh. Sept. 4, 2024) a court refused to compel arbitration after a Plaintiff denied (under oath) visiting a website that Prospects claim the guy visited 11 times.
Plus this was just an awful awful lead.
So here’s the backstory.
Guy allegedly visits https://jobs.theamericancareerguide.com/ a website apparently offered by C4R Media Corp and fills out a form.
That lead is sold to ProspectsDM who apparently calls the guy and then transfers the call to Clear Health to sell him health insurance.
Great, fine, whatever except two problems: i) guy says he never visited the website (you already know that); ii) this website is a CONSENT FARM that has nothing to do with insurance!
Check it out:
This is what the website looks like even AFTER this lawsuit was filed.
The website is offering CAREERS and tells consumers you could get HIRED FASTER. But he fine print says:
By checking the box below, I provide my signature expressly consenting to receive sales calls and/or text messages regarding insurance services and/or other offers via an automatic telephone dialing system and/or artificial and/or prerecorded calls from C4R Media Corp or its marketing partners at the cellular/landline telephone number I have provided above….
The website call to action offers JOBS. The fine print says INSURANCE MARKETING. My goodness.
So what’s going on here.
Simple, the web site operator is SCAMMING EVERYONE.
The consumer is being tricked into providing consent.
The lead buyer–here an insurance sales company–is being tricked into thinking this is a valid consent record because the third-party witness software testing for valid consent is ONLY LOOKING AT THE DISCLOURE and NOT at the language on the form.
The result? A fraudulent lead.
And that’s if the consumer actually visited the website.
Here, of course, the consumer denies visiting the website. And to my eye if the website operator is willing to trick a consumer into signing a form to defraud lead buyers they will likely also sell an outright fraudulent lead.
I don’t know that, of course, but that is my guess.
And it was the Court’s guess too. It refused to grant Clear Health’s motion to compel arbitration and is sending the issue of whether the consumer filled out the form to the jury.
This was OBVIOUSLY what was going to happen here. Of course the judge is going to deny arbitration where a consumer claims he didnt visit the website.
Just shocking to me that Ben Zitter of C4R Media Cor would submit a declaration supporting this lead. I mean this website is so plainly a consent farm to my eye can’t believe anyone would stand behind it.
Per the Plaintiff:
In his Declaration, Davis avers that he has no record or recollection of visiting the Website or viewing the Terms and Conditions containing the arbitration agreement, the Website is “one [he] never visited,” and he would not have agreed to arbitration. (Davis Decl. at ¶¶ 9, 15, 19.) Davis also avers, under penalty of perjury, that he could not have submitted his name or information containing his (220) 203-8888 number in September 2023 because he only obtained the number in October 2023. (Id. at ¶ 22.) Davis further avers that the submitted ZIP code, 43201, is not his ZIP code, and that it would have been impossible for him to visit the website for three seconds, as Mr. Zitter’s Event Log indicates. (Id. at ¶ 17.)
Yeah, that’s all pretty compelling.
But again, I am not saying the litigator is telling the truth (although it seems he may be) my concern is with the bogus consent farm form itself. Again, consumer signs up for JOB OFFERS and gets INSURANCE MARKETING CALLS.
This is the sort of thing that got the lead generation industry into so much hot water with the regulators and lead me to create R.E.A.C.H. in the first place. Just terrible.
But the Court is wise to the potential for fraud here as well. Importantly:
The Court is not persuaded by Clear Health’s contention that it is “simply inconceivable” that someone other than Davis “could have submitted his information with a telephone number that had yet to be assigned to him” eleven times. (Id. at PageID# 218.) Clear Health cites no authority to show that because a telephone number is submitted with accompanying personal information, including some information (here, a ZIP code) that is averred to be incorrect, the individual whose information is submitted must have been the user who accessed the website.
Its not inconceivable at all, actually.
Every time the website operator sells the lead they get paid for it. So why not say the guy visited the website 11 times and get paid 11 times?
Now, maybe the guy DID fill out the form 11 times. Maybe he IS a scumbag. Maybe the litigator deserves to go to jail!
BUT…
When you’re operating a website offering jobs to consumers and then tricking them into agreeing to receive marketing calls, I am going to side with the litigator. Sorry, not sorry.
