I like it when a defendant does things right in a TCPA case. It makes everyone’s life easier.
Take Harris v. Advanced Marketing, Case No. 8:22-cv-2651, 2023 WL 2213692 (M.D. Fl. Feb. 24, 2023) for example.
There the Defendant sought to compel an arbitration provision existing on a lead supplier’s page. First, the Defendant properly obtained an authenticated the lead details and the IP address sufficient to have the Court accept those materials into evidence (good.) Defendant was able to demonstrate a prominently displayed arbitration provision within hyperlinked terms, which the Court accepted as potentially binding. (very good.)
Plaintiff countered with a declaration stating she had never visited the website. (this happens.) And here’s where I am very pleased with Advanced. Rather than take an untenable position–like “we still win anyway”–the Defendant advised the Court that if a question of fact has been created the issue should proceed to a trial on the subject under the Federal Arbitration Act.
Ding ding ding.
This is exactly correct. And it protects the Defendant from having to proceed into burdensome (abusive) class discovery in a TCPA case contrary to the benefit of the binding arbitration provision.
So the Court correctly followed the lead of Advanced Marketing and denied the motion–had to happen after Plaintiff submitted the declaration–and set the issue for a bench trial to determine whether Plaintiff is a liar or not.
Nicely done here. This is precisely the procedure that is to be followed in these cases and Advanced did a nice job packaging up the evidence to position the matter for a potentially-favorable outcome.
We’ll keep an eye on this one.