Repeat TCPA litigators Terri Pepper and Julius Bryant just defeated an effort by Fluent to compel their TCPA class action to arbitration, and the ruling sheds further light on just how difficult it can be to enforce online webform submissions in an anonymous digital ecosystem.

In Pepper v. Fluent, 2023 WL 4561798 (S.D. N.Y. July 17, 2023) Fluent moved to compel arbitration of TCPA class claims brought by two Plaintiffs–Terri Pepper and Julius Bryant. And, as we shall see, Fluent lost BOTH bids and that’s a real problem for folks relying on webform submissions in TCPA class cases.

Finding that there was a dispute of fact at the motion stage the Court ordered a mini-trial on the issue of arbitration and heard testimony from the Plaintiffs and from witnesses from Fluent.

The Fluent witnesses were able to reconstruct the website that was allegedly visited at the time that both of the plaintiffs allegedly visited each website. And they were able to provide data related to the type of device used to access the websites and the rough location of the device at the time of the visit along with data submitted by the individuals–and all of these details matched with the facts.

Nonetheless, despite this seemingly credible evidence the Court denied arbitration.

As to Ms. Pepper the Court found she “credibly” testified that she had been retired for years and had no interest in rejoining the labor market–hence Fluent’s claim that she visited an employment website fell flat. The Court also found that Pepper’s story that she was at the dentist several miles from her home at the time of the alleged lead form submission to be credible and cast doubt on Fluent’s version of events:

Thus, it would be unreasonable to find that Ms. Pepper visited FindDreamJobs.com on October 30, 2017, because Ms. Pepper simply had no reason to visit such a website after her retirement five months earlier, and she testified credibly that she never did so. Ms. Pepper’s testimony that she was occupied with other tasks at the purported registration time likewise undercuts any conclusion that she visited the website as alleged.

Further, the Court found fraud was a more likely explanation than Ms. Pepper forgetting she visited the website:

[I]t is possible that Ms. Pepper’s device was hacked, or that a third party purchased or acquired her data elsewhere and entered some of that data into the website at issue. Those explanations are at least as credible, if not more credible, than the defendants’ argument that Ms. Pepper — who flatly denied visiting FindDreamJobs.com and who supported that denial with specific, credible testimony — simply has a “faulty recollection” as to whether she visited the website.

Wow.

Really important for people to understand that just because a webform submission took place–even with a jornaya or trustedform certificate–that does not mean the case is over. if the plaintiff is willing to testify under oath that the webform was not submitted by them, they can still defeat arbitration–even if, as here, the device used to submit the form is similar to a device owned by the Plaintiff.

Now I don’t know how hard Fluent pushed on her story here. For instance, did they subpoena the dentist’s records to determine whether she was really there that day or not? (I would have). Did they talk to anyone to determine whether Plaintiff had a habit of taking her iPad with her while running erands? (She denied doing so, but an iPad could certainly have helped her pass the time as she waited for her dentist appointment.) I think there was probably more here that could have been done ahead of the mini-trial to disprove her testimony–and that could have made a big difference. But the point remains–if a plaintiff is willing to testify that they did not submit the form, merely relying on business records of the webform submission alone will not be enough to win–more is needed!

Don’t believe me?

Let’s see what happened with the second Plaintiff–Bryant.

Mr. Bryant’s lead form include an accurate name and email address, but his physical address did not match. Plus the lead contained an inaccurate birthdate and identified him as a female, when he is a male.

The Court viewed these “discrepancies” as undermining the argument Bryant submitted the form himself–although, rather obviously, people provide incorrect details in submitting online forms all the time. And the court was unmoved by evidence the disclosure was submitted using devices similar to the plaintiffs-non-specific information regarding a browser or operating system is just not enough to overcome credible testimony to the contrary.

So in the end, Fluent must face a TCPA class action brought by two individuals who allegedly provided consent and agreed to arbitrate their claims. It will be VERY interesting to see whether the case is certified, however. In order to certify the case the Court would have to determine that the wrong doer that input Pepper and Bryant’s information did so repeatedly and in a manner that can be tracked. This seems unlikely.

Accordingly, although Fluent lost the battle here they may have actually won the war. The sort of fact-specific inquiry needed to prove or disprove consent here underscores the difficulties to be faced by the Plaintiff in proving classwide absence of consent–which is the plaintiff’s burden at certification.