{"id":903,"date":"2022-11-07T13:27:30","date_gmt":"2022-11-07T17:27:30","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/techlaw\/?p=903"},"modified":"2022-11-07T13:27:30","modified_gmt":"2022-11-07T17:27:30","slug":"tcpa-class-action-website-disclosure-and-lead-marketers","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/techlaw\/2022\/11\/07\/tcpa-class-action-website-disclosure-and-lead-marketers\/","title":{"rendered":"TCPA Class Action: Website Disclosure and Lead Marketers"},"content":{"rendered":"

The Ninth Circuit reviewed a website disclosure form \u2013 for a marketing website that generates leads \u2013 to determine when consumers assent to terms through interacting with a website.\u00a0 The Ninth Circuit analyzed the factors of: (1) reasonably conspicuous notice, (2) manifestation of assent, and (3) use of the word \u2013 arbitration \u2013 in the notice itself.\u00a0 Berman v. Freedom Financial LLC<\/em>, 30 F.4th<\/sup> 849 (9th<\/sup> Cir. 2022).\u00a0 Many similar federal court rulings concern websites in which the consumer is engaging in a transaction \u2013 such as buying a product \u2013 so Berman<\/em> has a different factual basis because the marketing website was giving away free items as a means of obtaining leads for other companies.<\/p>\n

In the facts underlying this case, Fluent is a digital marketing company that generates consumer leads for its clients by collecting information about consumers who visit Fluent\u2019s websites.\u00a0 Fluent offers free items via its websites such as gift cards and free product samples as an enticement to get consumers to provide their contact information and answer survey questions.\u00a0 Fluent then uses the information it collects in targeted marking campaigns conducted on behalf of its clients.<\/p>\n

Fluent asked the first plaintiff to: (1) \u201cconfirm her zip code\u201d by clicking a button and then (2) click on a large button stating \u201cthis is correct, continue!\u201d\u00a0 Fluent asked the second plaintiff to: (1) confirm \u201cgender\u201d by clicking a large button and then (2) click the \u201ccontinue\u201d button.\u00a0 Significantly, located in between these two buttons were two lines of text \u2013 in small gray font which was partially underlined \u2013 stating: \u201cI understand and agree to the Terms and Conditions which includes mandatory arbitration and Privacy Policy.\u201d<\/p>\n

Defendants used the contact information provided by consumers like plaintiffs to conduct a telemarketing campaign on behalf of defendants.<\/p>\n

Plaintiffs filed a TCPA class action on behalf of consumers who received unwanted calls or text messages from defendants during the telemarketing campaign.\u00a0 Defendants filed a motion to compel arbitration which was denied.\u00a0 The Ninth Circuit reviewed the denial of the motion.<\/p>\n

The Ninth Circuit noted that the Federal Arbitration Act (\u201cFAA\u201d) limits the court\u2019s role to determining whether a valid arbitration agreement exists and, if so, whether the agreement encompasses the dispute at issue.\u00a0 Plaintiffs did not contest that the arbitration provision on the websites\u2019 terms and conditions encompasses their TCPA claims.\u00a0 Thus, the only legal issue was whether either plaintiff assented to the terms, including the arbitration agreement.<\/p>\n

The Ninth Circuit first discussed whether New York or California law governs, and the result would be the same under either state\u2019s law because both states require mutual consent.\u00a0 Absent a showing of \u201cactual knowledge\u201d of the contract terms by the consumer-plaintiff, inquiry notice will result in a contract only if: (1) the website provides \u201creasonably conspicuous\u201d notice and (2) the consumer makes an \u201cunambiguous\u201d manifestation of assent.\u00a0 The Ninth Circuit ruled that neither condition is satisfied and analyzed:<\/p>\n