Avoiding compelled arbitration in TCPA lawsuits
- Peter Schneider
- Dec 30, 2024
- 12 min read
Updated: Apr 17
Today I want to talk about forced arbitration in TCPA lawsuits. Specifically, dodging it. I'll use several real lawsuits to do it. First is Gilliam v. Prince Health, 2025 WL 1126545 (M.D. Tenn April 16, 2025).
Gilliam filed a class action lawsuit against Prince Health Group LLC and a John Doe lead generator for unwanted calls.
Prince Health Group responded with a motion to compel arbitration.
Prince Health moves to compel Plaintiff William Steven Gilliam (“Gilliam”) to individually, not as a class representative, arbitrate his claims against Prince Health pursuant to an arbitration agreement binding Gilliam. Under this binding arbitration agreement, the question of whether Prince Health may enforce the agreement as a third-party beneficiary, as well as the scope of the agreement, are questions for the arbitrator. But even if the Court analyzed these arbitrability questions, the Court would find that Prince Health is entitled to enforce the arbitration agreement as an intended beneficiary and, further, that Gilliam’s Telephone Consumer Protection Act (“TCPA”) claims fall within the broad scope of this agreement.
Prince Health Group's argument was that they purchased Gilliam's lead from a Techforcemedia LLC who operated website topamericaninsurance.com. They claimed Gilliam entered his own phone number into the website and consented to calls, as well as terms and conditions that included agreeing to binding arbitration. As usual they had no evidence that Gilliam did this, or that anyone in particular did it, just a 'fake' video of someone doing it.
Top American’s record-keeping process uses software that screen records the site user, including tracking user information, clicks, and consents. Prince Health filed the screen recorded video displaying the clicks and submissions associated with the entry of Plaintiff’s personal information. (See Doc. No. 11-2, Exhibit 2-2; Doc. No. 14, Notice of Manual Filing). The screen recording shows a user entering Gilliam’s name, phone number, and other information on the Website, clicking boxes accepting the TCPA waiver, “Terms and Conditions,” and “Privacy Policy,” and then clicking “Submit” to submit his information.
Gilliam provided a declaration stating that he “never provided [his] consent” to receive telephone solicitations to Prince Health or Top American. Plaintiff stated that he viewed the website in response to the instant motion and that he has no recollection of having visited it and that a review of his internet history shows he was not online on the date Defendant contends he submitted personal information to the Website. He added he had no reason to seek health insurance online because he has health insurance through his employer, and that some of the personal information – the email address and date of birth – is not accurate.
Based on the initial briefing the court allowed limited discovery on the topic of this website and I just learned about a new tool myactivity.google.com:
Plaintiff explained that he had no independent recollection of his internet search history on December 4, 2023, and relied on the internet history he obtained from myactivity.google.com as the basis for his statement that he did not use the internet on that date. (Pl. Dep. at 12-14, 38-39). Although Plaintiff stated that he used the Safari web browser, he did not search for internet history anywhere other than myactivity.google.com and was not sure that it gives a complete picture of his internet history.
I also don't know how complete the browsing history of myactivity.google.com is either, which is why if Prince Health Group really thought Gilliam visited the website, they would have subpoena Gilliam's ISP. That lack of a subpoena to Gilliam's ISP really tells the story. I am sure it has happened once, but I've never seen a defendant subpoena an ISP for internet browser history and if they believed in their case they would immediately do this.
Gilliam walked some dangerous ground because the court took his denial "do[es] not recognize the website as one [he has] ever visited" as equivocated a little about the website, instead of a strong denial:.
Prince Health argues that because Plaintiff does not unequivocally state that he did not submit information on the Website and his lack of recollection is based on an incomplete internet history, he has not put the agreement to arbitration “in issue” and the Court must compel arbitration. Prince Health argues that Plaintiff does not outright deny having submitted his information, only that his internet search history does not show that he visited the Website, and he has no recollection of using it. Moreover, Plaintiff’s review of his internet history was plainly inadequate to support his assertion that he did not use the internet all on December 4, 2023. Under some circumstances, Plaintiff’s evidence would not be sufficient to place the agreement to arbitrate “in issue.” As noted by Defendant, Plaintiff’s denial, as stated in the declaration, is not unequivocal and his purported search of internet raises more questions than answers. Instead, Plaintiff relies on circumstantial evidence – he does not recall the website, he would not have been searching for insurance, some of the personal information is incorrect, etc. During his deposition, however, Plaintiff clearly stated, “it was not me that clicked that box, because it’s not me on that website.” (See Pl. Dep. at 39). This evidence is contrasted with Prince Health’s evidence that an online user submitted Plaintiff’s name and phone number on the Website and clicked associated consents. Unlike other cases where electronic signature and online consent has been found to be effective, here, other than the fact that Plaintiff’s name and phone number were used, Prince Health offers no evidence that Plaintiff was the person who entered the information. Viewing all facts and inferences in favor of Plaintiff, a reasonable finder of fact could conclude that someone other than Plaintiff entered Plaintiff’s name and phone number on the Website. If that is the case, Plaintiff plainly did not agree to arbitrate. Therefore, the validity of the Arbitration Agreement is “in issue” and Prince Health’s motion to dismiss and compel arbitration must be denied.
In a footnote the court also took him to task about his internet search history:
During his deposition, he testified that he did not know whether the internet search history he relied upon, which was from myactivity.google.com, showed his entire search and internet history for the time period in question, and he did not attempt to search his internet history on other browsers despite agreeing that he used the browser that “looks like a compass,” i.e., Safari. Plaintiff also testified during his deposition that the activity log from myactivity.google.com showed that he visited YouTube. His unqualified declaration that he “did not use the internet” on December 4, 2023, is, at best, misleading. Given Plaintiff’s lack of facility with “electronics” the Court will assume that any misrepresentation was inadvertent.
It was a bit of an ugly win, but a win for Gilliam. The court denied their motion.
Lawsuit MacDonald v. Rocket Mortgage LLC, No. CV-23-02558-PHX-KML, 2024 WL 5200480 (D. Ariz. Dec. 23, 2024) is an example of a failed attempt to stave off arbitration.
The lawsuit started off with a complaint of unwanted telephone calls from Rocket Mortgage. Mr. MacDonald alleged to have registered his phone number on the National Do Not Call list, yet he received an unsolicited call from a Rocket Mortgage employee. Mr. MacDonald alleged to have told this employee to never call him again but he got a further telephone solicitation.
His complaint says nothing about asking for the calls (it actually says "Plaintiff MacDonald received an unsolicited call from 480-447-3563 to his cell phone from a Rocket Mortgage employee named Andy Conway.
Rocket Mortgage came back with a motion to compel arbitration under the theory that Mr. MacDonald asked for the calls on a Rocket Mortgage website quickenloans.com.
Full disclosure, I don't know what Mr. MacDonald did or did not do on any website. For the purposes of this article I'll assume he did not ask for the calls, and I'll comment on what he could have and possibly should have done to fight off Rocket's motion to compel arbitration.
What struck me most about Rocket's motion to compel arbitration is that it had no actual evidence Mr. MacDonald ever visited the website. It didn't list an IP address or make any claims tying Mr. MacDonald to website visit requesting calls even though the court granted limited discovery on the issue.
I don't know if Mr. MacDonald's counsel thought Rocket's motion was so weak they hardly needed to fight it off, or what, but they forgot to have Mr. MacDonald testify that he didn't visit the website and ask for calls. They just went with "the arbitration agreement that Rocket Mortgage seeks to enforce was not reasonably conspicuous on the website Rocket Mortgage claims Plaintiff visited."
Mr. MacDonald didn't have to do a great deal to created a fact issue: while doubts concerning the scope of an arbitration clause should be resolved in favor of arbitration, the presumption does not apply to disputes concerning whether an arbitration agreement has been made. Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016), he needed to do something to create that fact issue.
Hard to know if this was incompetent counsel for Mr. MacDonald, or a bad client, but it would seem incompetent counsel is more likely because in discovery Rocket would have asked Mr. MacDonald under oath if he had visited the website and asked for the calls. Had Mr. MacDonald admitted it, they would have trumpeted it for all to see in their reply.
What they were able to do was parade around that Mr. MacDonald's counsel didn't provide a declaration from Mr. MacDonald:
Plaintiff’s counsel requested that this Court open discovery, stating that there will be “a factual dispute” regarding the applicability of Rocket Mortgage’s arbitration provision because Plaintiff “denies visiting the [quickenloans.com] website.” Telephonic Rule 16 Scheduling Conf. Tr. (“Hr’g Tr.”), at 9, 12. Indeed, Plaintiff’s counsel told this Court that Plaintiff’s opposition to the Motion “would be supported by declarations.” This Court granted Plaintiff’s request for discovery, in part, ordering both parties to disclose discovery regarding any facts relevant to the Motion. In response to that Order, however, Plaintiff produced no documents or other evidence relating to the Motion. See Plaintiff’s Initial Disclosures, attached hereto as Exhibit A. Nor did Plaintiff support his Opposition (“Opp.”) (ECF No. 26) with the “declarations” his counsel told this Court he would provide.
Courts generally don't like TCPA cases and be it Mr. MacDonald's counsel's incompetence or something else, this gave the judge an opportunity to get rid of this case and he did "The evidence establishes MacDonald entered his address information and clicked on the “Click to See your Results!” button (Doc. 13-1 at 3.)"
What evidence at Doc. 13-1 page 3 convinced the judge MacDonald entered his address information and clicked on the “Click to See your Results!” button? Absolutely nothing but the apparent fact that the personal information entered belonged to Mr. MacDonald. Laughable but Mr. MacDonald probably isn't laughing.
7. According to Rocket Mortgage’s business records, Mr. MacDonald voluntarily navigated to QuickenLoans.com on June 8, 2022, and made such a voluntary submission as part of an online request for mortgage information from Rocket Mortgage Specifically, the Company’s business records show that Mr. MacDonald entered the following information as part of his submission: a) Name: Darren MacDonald b) Phone Number: 480-540-XXXX c) Email Address: beginning with Darren@XXX.net d) Mailing Address: beginning with 8448 E Roanoke Ave e) Property State: Arizona f) Loan Purpose: Refinance
What should Mr. MacDonald have done differently? Like Gilliam above, he should have testified that he didn't visit the website and didn't ask for the calls. Because he didn't and as terrible as Rocket's evidence was, the judge used it to beat him over the head with “Unsupported allegations made in briefs are not sufficient to defeat a motion for summary judgment,” Stanley v. Univ. of S. California, 178 F.3d 1069, 1076 (9th Cir. 1999).
As as aside, TCPA plaintiffs should remember this case citation when defending themselves from the typical TCPA defense bar unsupported character assassination. The full quote is better:
Stanley bears the burden of demonstrating a material fact regarding pretext in order to survive summary judgment. Stanley's pretext argument, however, fails to meet even this minimal burden. In her briefs, Stanley disputes that Raveling had greater qualifications and experience than she. For example, Stanley states that "Mr. Raveling does not have substantially different qualifications and experience than Ms. Stanley." Unsupported allegations made in briefs are not sufficient, however, to defeat a motion for summary judgment.
Because unsupported allegations are a staple of the the defense bar, here is a good quote and citation from a Western District of Washington case:
Connect also argues, without any citation to the record, that any enrichment it received was not unjust because the 10% portion of the commissions it received under the Producer Agreement was a reasonable fee for the services it rendered, which "enhanced the value of the collateral." (Con. Mot. at 21.) First, under the Producer Agreement, any "services" that Connect performed were for the benefit of Advantage Pacific, not DZ Bank. Thus, any "fee" that Connect received for those services is irrelevant to DZ Bank's claim for unjust enrichment. DZ Bank's claim relates to the collateral itself and the commissions derived from that collateral. Connect has admitted that it took possession of the collateral by purchasing Advantage Pacific's book of business, and the Producer Agreement itself demonstrates that Connect has the authority to direct the disposition of any commissions arising from Advantage Pacific's book of business. See supra § III.C.1. In any event, Connect cites no evidence in support of its assertion that its "services" under the Producer Agreement "enhanced the value of the collateral." (See Con. Mot. at 21.) Unsupported assertions by legal counsel in briefs are insufficient to create an issue of fact for trial. Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1076 (9th Cir. 1999).
Or maybe your gifted a free get out of jail free card like this plaintiff in Conrad v. Camping World Holdings, 2025 WL 66689 (N.D. Al. Jan, 9, 2025). The silly telemarketer started texting a phone number in 2022, the phone number changed hands in 2023, and the silly telemarketer kept texting it.
Conrad sued, and Camping World tried compelling Conrad into arbitration based on someone else's consent (assuming any one consented). That was a no-go for the court.
But usually what you see are motions to compel arbitration like this lawsuit Moghadam v Alleviate Tax
Where the entire premise of the motion is conclusionary claim
I have reviewed Alleviate’s records related to Plaintiff Nigel Lucombe. These records show that Alleviate received contract information, including phone number for a user named “Nigel Lucombe” on February 26, 2024 through submissions made on the Website. The only way Alleviate would have obtained this information is if Nigel Lucombe (or someone acting or purporting to act on his behalf) entered that information on the Website and submitted it by clicking the “Get Quote Now!” button on the Website.
Again, it should take little effort to knock down this nonsense, but the nonsense has to be knocked down, many judges will take this baloney as the gospel truth if not countered with a declaration.
Defendants want out of the court system and into arbitration because arbitration is a complete kangaroo court in favor of the party who picks the arbiter. It is all in the name itself - arbitrary means based on random choice or personal whim, rather than any reason or system. Arbiters do not have to follow any law in making decisions and are almost completely free to achieve any outcome they want.
Defendants and our legal system pretend arbitration is just as fair as the court system, only faster and less expensive. Arbitration is usually not fair to the party who is not the chooser of what arbitration company to use [make no mistake - arbitration is done by private businesses] for one simple reason - the arbitration company knows that the chooser of what arbitration company to use is going to change arbitration companies if they don't win enough. Would you willingly go in front of a judge on the defendant's payroll? This is what you are doing in almost all forms of arbitration.
Companies want to stay in business and companies cater to the entities who write the checks and can and go elsewhere if they don't win enough. This is the biggest problem with arbitration but by far not the only one. TCPA cases need to stay the heck out of arbitration for other reasons like limited discovery, weak or arbitrary rules of evidence.
Arbitration agreements make getting justice from the companies you do business with nearly impossible. Take Adler v. American Express Co., 2025 WL 904462 (N.D. Oh. March 25, 2025). Mr. Adler is/was an American Express customer, but for years he got calls from them about someone else's account, and repeatedly told them to stop.
He sued them for TCPA calls, and got forced into arbitration and he almost certainly won't prevail there.
A different TCPA plaintiff avoided arbitration in Faucett v. Move,Inc. 2025 WL 1112935 (9th Cir. 2025). This was a case where Faucett apparently really did visit a website owned and operated by lead generator Nations Info Corp. Faucett's lead got passed to Opcity Inc, a subsidiary of Move Inc.
I didn't pull the underlying case but it appears the consent form on the website didn't mention Opcity/Move, which presumably is why they got themselves into the lawsuit in the first place, but Move tried to use the website's arbitration clause anyway. It didn't work on multiple levels.
Opcity, not Move, has a contractual relationship with Nations, and even assuming Move is involved in Opcity’s business to some extent, the two are separate corporate entities. See Ahlstrom v. DHI Mortg. Co., LLP, 21 F.4th 631, 635–36 (9th Cir. 2021) (rejecting a party’s argument that, in the context of an arbitration agreement, a reference to a company also encompassed the company’s subsidiaries based on “the fundamental principle that corporations, including parent companies and their subsidiaries, are treated as distinct entities”)
Now you know more than most about avoiding compelled arbitration in TCPA lawsuits. Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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