Are you buying or selling website leads? Are you obtaining arbitration via online disclosures?
If so, a recent ruling by the Ninth Circuit Court of Appeals could have a huge impact on your business’s protection from litigation.
Berman v. Freedom Financial Network: The Facts of the Case
Ruling in the case of Berman v. Freedom Financial Network, the Ninth Circuit Court held that plaintiffs were not bound to a website’s arbitration agreement because the terms of that agreement were not “reasonably conspicuous” and the website visitors did not “manifest unambiguous assent” to those terms.
In plain terms, the court found that even the smallest of website-design details—like font size and color, link location and appearance—can decide whether a dispute is resolved in arbitration, or in litigation.
This ruling came after the plaintiffs sued website operators for allegedly using their contact information to make telemarketing calls in violation of the TCPA.
Although the sites’ Terms and Conditions included a requirement that all disputes be resolved in arbitration, the text disclosing these terms was printed in “tiny” gray font, rather than the blue that usually notes hyperlinks. Plus, this font—which the court described as “barely legible to the naked eye”—was smaller than the surrounding text. As a result, the terms did not meet the court’s standard of being “reasonably conspicuous.”
In addition, the court found insufficient evidence that the plaintiffs assented “unambiguously” to the agreement. Next to the language “I understand and agree to the Terms & Conditions which includes mandatory arbitration,” the sites used large green buttons that read “Continue.” The court found these buttons ambiguous, leading them to rulethat plaintiffs were not bound by the arbitration agreements.
RELATED CONTENT
Catch our video interview with the Czar of TCPA World, Eric Troutman, on the Berman v. Freedom Financial Network ruling.
Why the Ruling Matters for Your Business
This ruling may send shockwaves through the lead generation industry. In fact, the court’s decision is already being cited in other TCPA cases involving website disclosure forms.
Here’s how you can make sure your business is properly supporting compliance moving forward.
The clearest takeaway from the ruling is that design matters. Even down to the smallest detail. As TCPAWorld’s Eric J. Troutman writes, there are three very clear design rules to walk away from the decision with:
1. Font cannot be too small or too light, although exactly what the standard is for these is unclear.
2. The button must clearly advise that by clicking it terms are being accepted.
3. Hyperlinks are okay as long as they are clearly marked.
However, for lead buyers, it’s absolutely critical to note that if your lead sources are using similarly flawed designs, then you may not be legally protected.
After this ruling, you can’t leave your TCPA compliance to chance.
Speaking to Convoso’s Lisa Leight, Troutman said, “If you’re a lead buyer, and you’re making a bunch of phone calls right now from a trusted lead source, you’ve got to be asking yourself, have I looked at these websites recently? Have I taken an inventory of the publisher to see what kinds of disclosures they offer?”
Do more to support compliance with these TCPA best practices for call centers.
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DISCLAIMER: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.
