Its a scene out of every old cop show. The suspect seated at a barren table has a light shown directly into his face while a gruff voice demands:
“Where were you on the afternoon of August 29, 2018?”
We’ll get to that in a second.
First, this is arguably the most common fact pattern in TCPAWorld at the moment—a consumer provides his consent on a website authorizing phone calls regarding a specific product or service. The website provider either calls the consumer directly or provides the “lead” to a provider of those goods or services. The consumer receives a call—just as the consumer requested.
But then—disaster. The consumer claims they never actually visited the website and that the “lead” provided on the website is fraudulent. This is true even though all of the information on the webform was perfectly accurate and—in many instances—the webform interaction was tracked and confirmed by a third-party verification service (think Jornaya or Active Prospect). And, of course, a disproportionately high number of these claims are brought by repeat players and TCPA professional plaintiffs whose information just happens to have been supplied on webforms to completely legitimate businesses completely without their knowledge (wink wink.)
While this fact pattern will almost certainly land in the lap of the FCC, for now courts are dealing with it precisely as you’d expect—sending the issue to the jury. The most recent case on the subject was handed down yesterday in Hobbs v. Apollo Interactive, CASE NO. 4:19-CV-57 (CDL), 2019 U.S. Dist. LEXIS 216357 (M.D. Ga. Dec. 17, 2019), and it really is prototypical of the situation.
There some guy named Keith Hobbs—ever heard of him?—decided to file suit against a Defendant for allegedly unconsented marketing calls. But wait—says the Defendant—we have proof this guy went on our website and requested the calls. Specifically, “on August 29, 2018 at 3:57 p.m. Eastern Standard Time, Plaintiff’s contact information was entered on Defendant’s website, BestAutoInsurance.com, from IP address 22.214.171.124 located in Norcross, Georgia using a Windows 7 operating system and Chrome 51.0.2704 browser”
Talk about a smocking gun. (I can’t resist sometimes.)
Importantly (or maybe not very importantly given the outcome of the case) Defendant’s website states that when a person enters his contact information into the website and clicks “submit,” he agrees to receive communications via an automatic telephone dialing system and agrees to arbitrate any claims related to the use of the website. So Mr. Hobbs must arbitrate his dispute, right?
Of course not. Plaintiff responded to this evidence by saying “not me.” Plaintiff claims he did not access the website—plus he has an alibi!
Rekindling the opening inquiry—“where were you on August 29, 2018 at 3:57 pm?” Asks the cop shining a bright light in his face.
“I was on my way to the Zoo. I swear. Ask anyone.”
No seriously, that was Plaintiff’s position—he could not have visited the website at that time because “Plaintiff was driving from a job at the Atlanta Zoo in southeast Atlanta, Georgia to Columbus, Georgia (southwest of Atlanta) and thus could not have been in Norcross, Georgia (northeast of Atlanta).”
The Court looked at the disputed evidence and did what you’d expect the Court to do—sent to the jury. Determining that a reasonable fact finder might believe either the Defendant’s evidence or the Plaintiff’s denials of encountering the website the court would not compel arbitration. The jury will have to decide whether Plaintiff actually accessed the website or not.
Talk about the trial of the century. *Insert eye roll emoji here*
Notably the case should—I say should because there’s no mention of this issue—be stayed pending the determination of the arbitration issue. That’s an important procedural issue because if the case proceeds into full blown class discovery the Defendant will be denied the benefit of their bargain on the arbitration clause—assuming it was ever accepted. So the mini-trial on arbitration must happen first before anything else in the case. Let’s hope their counsel advances this argument and the Court agrees…
For now, however, Defendant does have one thing to be glad about. The Court granted Defendant leave to file a counterclaim for fraud and breach of contract—undoubtedly related to Plaintiff’s contention that he did not actually encounter the website—so if (if) this case turns out to be a scam the Defendant seems to be well positioned to recover damages. We’ll keep an eye on this one for you.