BERMAN BEATER: Court Holds Lower My Bills’ Form Sufficient to Capture Binding Arbitration Provision

Well here’s a big ruling for a Monday morning.
As TCPAWorld readers know, the recent decision in Berman was a real game changer. But one Court in Michigan suggests the game didn’t change as much as it seems.
In Dustin Shirley, Plaintiff, v. Rocket Mortgage, Slip Copy2022 WL 2541123 (E.D. Mich.   .July 7, 2022) the court held that–a popular lead generation site–provided sufficient notice to users to allow a lead purchaser to enforce an arbitration provision. And that’s a huge deal.
In Shirley the Plaintiff admitted that he visited the website, but claimed that LMB’s format did not meet the requirements of Berman. Specifically he argued the disclosure was too small and the button did not include any indication that clicking it would result in accepting terms.
Here’s the form
The Court disagreed with the Plaintiff’s arguments. First the court found that the language–although it was below the button–was prominent enough that a consumer was likely to see it.
Second, the hyperlinks were nice and blue–at least on the second disclosure where the Plaintiff accepted LMB’s terms and conditions–so that was a big distinguishing point from Berman.
Third, although the button just said “Calculate,” unlike in Berman the disclosure language actually noted that by clicking the button above something legally effective was going to occur.
So arbitration was enforced.
Notably, there was another Chaos Ball moment in this case as well. The Defendant in the suit was Rocket Mortgage. And technically the Rocket Mortgage disclosures had not been conspicuously displayed to the Plaintiff. But the Plaintiff apparently stipulated at the hearing that Rocket “can enforce LMB’s arbitration agreement with Shirley as an intended third-party beneficiary.” So… sometimes its better to be lucky than good.
So take aways here:
  1. At least some Courts will continue to enforce disclosures where the language is below the button. While that is not best practice, it appears to be acceptable in some locations for now;
  2. At least some Courts will continue to enforce disclosures where a button merely says “Continue” so long as the language of the disclosure notes that “By clicking the button you accept…whatever terms”;
  3. Hyperlinks must be in full color folks. The Court was not going to enforce Rocket’s T & Cs because they were not hyperlinked. They lost their belt but they had suspenders when LMB’s own disclosures were deemed sufficient to cover them.

Be cautious here, however. This is just one district court–a single data point. Some courts might not agree. And until standards are set and approved by regulators–or until more appellate courts look at this issue–it is best to BE CONSERVATIVE AND TRANSPARENT with your forms.

But for now–this is a great victory.


Leave a Reply