More Is Required!: Court Finds Dispute of Fact Over Disclosure Terms in Fluent Lead—Time to Mandate Third-Party Verification?

Huge new case out today that all lead buyers and sellers need to keep in mind.

The Baron just posted a separate piece on the broader impact of  SUPER IMPORTANT CASE OF THE WEEK-Berman v. Freedom Fin. Network, CASE NO. 18-cv-01060-YGR, 2020 U.S. Dist. LEXIS 160406 (N.D. Cal. Sept. 1, 2020), but I wanted to quickly draw attention to one very specific point.

In Berman the court refused to compel arbitration against a Plaintiff who claimed he did not encounter a lead form and accept arbitration provisions. The Court ultimately concluded that the website design was errant and did not afford conspicuous notice—a very important lesson for TCPA defendants—but before it got there it noted a question of fact regarding what terms were even on the website to begin with.

While the Berman defendant offered a declaration from a webmaster with Fluent that supposedly recreated the disclosures as they existed at the time of the consumer’s interaction with the page, the Court was unconvinced because only basic template pages were assembled:

[Fluent employee] very generally explains how he “recreated” the set of multiple webpages each plaintiff would have seen when they visited the websites based on a unique visitor ID generated for each session, and “regenerated images” of the webpages. The exhibits submitted by [Fluent] are the equivalent of blank form contracts, with no clear indication that these plaintiffs agreed to them. Fluent elected to omit other pages from the multiple page “flow” for these website visits which might have demonstrated that these particular users interacted with these particular pages.  Given that plaintiffs each submit declarations disputing seeing elements of these pages, and defendants failed to provide complete information to authenticate the exhibits, the Court finds that there are material facts in dispute.

This portion of Berman is critical for TCPA defendants-especially those making calls based upon purchased leads—to take note of. While Fluent worked hard to recreate the consumer’s experience with the website on the given day the evidence was just not satisfactory to the court. Perhaps more could have been done with the declaration to close the gaps the Court identified, but this case cries out for attention to third-party lead verifiers (e.g. Active Prospect and Jornaya) who capture and track a consumer’s interaction with websites and store evidence of those interactions for future use. does not endorse any product or service—and it cannot and does not attest that any particular third-party lead verifier does its job accurately—but Berman certainly demonstrates that callers really need to be thinking about all angles to prove the content of its disclosures at the critical time the consumer interacted with the website and should consider vendor solutions to enhance those efforts, along with other propriety and home-grown means.

And, of course, the websites should be properly constructed and not defeat consumer expectation. More on that from the Baron shortly.


Leave a Reply