Consent Questionable in Online Lead Form, Court Rules

TCPA Connect

A federal court judge in Illinois denied summary judgment in a case involving an online lead form, ruling that the issue of the plaintiff’s consent to receive calls was unclear.

In order to receive a mortgage quote, Samuel Barrera visited the website of Guaranteed Rate on July 5, 2017, and filled out a form with his personal information. He provided his cell phone number as his preferred contact number. He then clicked on a box stating, “Get your free quote.”

Beginning the next day, Barrera received autodialed telemarketing calls from a Guaranteed Rate representative and subsequently filed a putative class action pursuant to the Telephone Consumer Protection Act (TCPA).

The defendant moved to dismiss the claim, asserting that the plaintiff provided prior express written consent to receive the calls when he clicked on the “Get your free quote” button. Had Barrera scrolled down the page, he would have found a statement that by clicking on the button, the consumer provides:

“ … express consent to receive calls from or on behalf of Guaranteed Rate, our family of companies, or one of its third party associates to any telephone number you entered, even if it is a cellular phone number or other paid service for which the called or messaged person(s) could be charged for such call or text message. You provide your express written consent for Guaranteed Rate, Inc. to contact you via any means, including by use of an automated telephone dialing system[] and artificial, pre-recorded voice messaging in connection with calls; or texts (SMS and MMS) made to any telephone number you provided, even if your telephone number is currently listed on any do not contact E-mail list, internal, corporate, state, or federal Do Not Contact list.”

Barrera countered that this statement was “inconspicuously hidden in barely legible font at the bottom of the … [page] far beneath the ‘Get your free quote’ button.” Therefore, he told the court, he had not truly provided his consent for the calls.

Siding with the plaintiff, U.S. District Court Judge John Robert Blakey said the placement of the TCPA disclosures and the use of “tiny font” made it questionable whether Baemmert knew he was providing consent to receive autodialed telemarketing calls.

To comply with the Federal Communications Commission’s regulations, prior express consent must include a clear and conspicuous disclosure, the court emphasized.

“[S]imply providing a phone number is not enough,” the court wrote. Although giving a creditor a cell phone number as part of a credit application may reasonably demonstrate prior express consent to be contacted at that number regarding the debt, Baemmert “did not complete a credit application or otherwise execute a written consent; he requested a mortgage quote, a preliminary overture short of submitting a credit application.”

Accepting the allegations of the complaint as true—as the court was required to do at the motion to dismiss stage—the “purported consent agreement was deficient,” the court said. “As Plaintiff has alleged, the placement of the disclosures and the use of a tiny font made it unlikely that Plaintiff knew, when he clicked on the quote button, that he was actually opening the door to a barrage of autodialed telemarketing calls to his cell phone. The TCPA requires that the consent agreement be clear and conspicuous. Plaintiff alleges that Defendant’s was neither. At this stage, his allegations suffice.”

The court also made quick work of the defendant’s argument that the plaintiff lacked standing for failing to allege an injury-in-fact per Spokeo, Inc. v. Robins.

“Plaintiff alleges that Defendant’s unwanted telemarketing calls were annoying and harassing and violated his right to privacy,” Judge Blakey wrote. “Such alleged injury falls squarely within the body of cases where courts have found sufficient injury to meet the injury requirement to bring a TCPA claim.”

To read the order in Barrera v. Guaranteed Rate, Inc., click here.

Why it matters: The decision reiterates the importance of the location and legibility for TCPA consent disclosures. Even though the defendant’s disclosure featured a detailed statement that should have sufficed to establish prior written express consent, the court refused to dismiss the suit based on the plaintiff’s allegation it was located below the acceptance button and in “Lilliputian language.” As the court noted, “simply providing a phone number is not enough” for a plaintiff to plead himself out of court, as the FCC regulations require that disclosures be “clear and conspicuous.”



pursuant to New York DR 2-101(f)

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