TCPA class actions are massively on the rise.

As of May, 2024 class actions under the TCPA were up 40% from 2023–a massive spike.

One of the best ways to kill TCPA class actions, of course, is with an arbitration provision–and many companies rely on those provisions to extract themselves (and their partners) from litigation trouble.

But arbitration is not always a bulletproof solution–especially in the context of third-party lead generation where a defendant cannot prove the Plaintiff actually visited the website.

Take the case of Taylor v. Suntuity Solar 2024 WL 3650703 (M.D. Fl. July 24, 2024) for example.

There the Defendant Suntuity had obtained a lead from LowerMyBills.com. LMB has an arbitration provision on its website. So Suntuity tried to enforce the provision, but it didn’t work.

Before we get to why, take a look at these facts. Pretty solid lead here, with a Jornaya and everything:

Arbitration, Defendant maintains Plaintiff submitted an information request to LowerMyBills.com (“LMB”) prior to receiving the phone calls. (Dkt. 41 at 4) In support of this assertion, Defendant submits a report from Lead Intelligence, Inc. d/b/a Jornaya (“Jornaya”), a third-party business that records website users’ activity. (Id.; Dkt. 41-1) The report includes what purports to be a video recording of a website user submitting Plaintiff’s name and contact information to LMB. (Dkt. 41-1) The video shows the website user was directed to a screen with a submission button that stated, “See my results!” (Id.) Below this button was text that stated, “By clicking the button above, you express your understanding and consent electronically via E-sign” to a list of four terms. (Id.) The third listed term stated, “[I]f selected above, you consent to be matched to up to an additional 3 providers about solar services, home improvement services, and home insurance services ….” (Dkt. 41-3) The second listed term contained a hyperlink to LMB’s “Terms of Use”

Pretty solid facts. A lead from a well-known lead supplier with a Jornaya backing it up.

Nonetheless, the Plaintiff denied visiting the website. And that alone was sufficient to deny arbitration in the court’s view:

Plaintiff has put forth evidence raising a genuine dispute of material fact as to whether the Parties agreed to arbitrate. For example, Plaintiff disputes in an affidavit that she ever visited LMB’s website; therefore, she disputes she ever assented to LMB’s Terms of Use. (Dkt. 36-1 at ¶ 19) A genuine dispute of material fact exists as to whether Plaintiff visited LMB’s website and clicked the “See my results!” button. This dispute precludes this Court from finding a valid agreement to arbitrate exists as a matter of law. Accordingly, Defendant’s motion is due to be denied without prejudice, and the Court will hold an evidentiary hearing to resolve the question.

See, all the Plaintiff had to do was deny visiting the website and the motion was defeated.

Now I suspect Defendant’s lawyers told them that was going to happen–at least I hope they did–because that was the obvious outcome here. But notice the Court set the matter for an evidentiary hearing on the issue. I think that (or a jury trial) is the right result and probably what the Defendant was hoping for all along. The case will be stayed in the meantime, and that is a decent result.

But notice Defendant may or may not win this hearing. If the Court believes the Plaintiff–or finds Defendant did not carry its burden of proof–Defendant is stuck in the case. Plus if the abritration provision isn’t enforced the consent record wont be either–and that means Defendant may end up havig to try the case!

On the other hand, the case would CERTAINLY not be certified owing to the fact intensive issues surrounding arbitration–and that should provide some comfort to the defense.

Just another day in TCPAWorld I suppose.