DISASTER AVERTED: Fourth Circuit Court of Appeals Declines Interlocutory Review of Sweeping E-SIGN/TCPA Issue

When we last checked in on Bradley v. DentalPlans.com, 2024 WL 5158791 (D. MD Dec 18, 2024), the district court had certified a sweeping question for interlocutory review: “Whether the E-SIGN Act’s disclosure requirements apply to the TCPA.” This issue was broad enough that it posed real risk of reshaping how consent is obtained across the lead-gen industry by requiring full e-sign consent before an online webform could be submitted.

DON’T LIKE WHERE THIS IS GOING: Court Certifies Critical E-Sign Issue to Appellate Court– Is this Good News or Bad News?

As the Czar had cautioned, the risk came from the broad framing of the certified question, which could have led the Fourth Circuit to decide whether all forms of TCPA consent must satisfy E-SIGN’s consumer-disclosure requirements.

DentalPlans’ petition argued that E-SIGN’s consumer-disclosure requirements in §7001(c) apply only when a law requires written information “relating to a transaction” to be provided to a consumer, and it maintained that the TCPA does not impose any such obligation. In DentalPlans’ view, the TCPA requires callers to obtain a written agreement but does not require sellers to provide written transactional information to consumers, meaning §7001(c) is never triggered; on that basis, the petition asserted that “Section 7001(c) of the E-SIGN Act does not apply to the prior express written consent requirement of the TCPA.”   Plaintiff responded that this misreads both statutes: because the TCPA requires a “written agreement” to be provided to the consumer as part of obtaining prior express written consent, E-SIGN’s consumer-consent procedures necessarily apply before any electronic record can function as that writing.

The Fourth Circuit has now weighed in, and the result is simple and straightforward: it declined to take the appeal. In a short order issued on April 4, 2025, the court denied DentalPlans.com’s petition for permission to appeal the district court’s ruling.

The worst-case scenario – an appellate opinion extending E-SIGN § 7001(c) to webforms or broader TCPA practices – has been avoided.