ADVANCED!: Advanced Marketing Compels Trial on Arbitration in a TCPA Case And It was Well Done

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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.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. Defendant will lose their bench trial the moment the plaintiff shows the court the traffic to that website (1insurancequotes.com) is EXACTLY 0. Records from plaintiff’s ISP should be also able to prove without a shadow of a doubt that she did not visit that website on the date they say she did. Check it out for yourself Eric… go to semrush.com create a free account and see what the organic traffic to that website is. Compare it to your own. Draw your own conclusions. Let’s hope that it’s still not “plaintiff is a bad gal manufacturing a lawsuit by filling out forms on websites (no one can find) and inviting calls”.

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