Mortgage lending giant Quicken Loans lost a motion to compel arbitration in a Telephone Consumer Protection Act (TCPA) class action. The details of the case demonstrate that a TCPA compliance program is of little use without proper understanding of how the compliance technology works.
At initial glance, the case—Hill v. Quicken Loans, Case No. ED CV 19-0163 FMO (SPx), 2020 U.S. Dist. LEXIS 140980 (C.D. Cal. Aug. 5, 2020)—seems to be a pretty typical TCPA complaint, centering on the plaintiff’s accusation that the defendant contacted her without proper consent. However, the defendant’s motion to compel arbitration, and the way that motion involves compliance technology, is worthy of closer examination.
The defendant purchased the plaintiff’s information from a third-party provider, LowerMyBills.com (LMB), who had purchased that lead from the website YourVASurvey.Info (YVAS). The plaintiff admitted that she had visited YVAS and began entering in her information before ultimately deciding not to complete the process. Nevertheless, her information was still stored by YVAS and sold to LMB, who sent her a text message with a link to their terms and conditions. Again, she claims to have begun the process but not completed it, clicking the link to open the terms and conditions but never clicking to accept them.
Where this case gets interesting is that both of the leads vendors, LMB and YVAS, revealed that they employed third-party consent verification programs. These programs record customer interactions with the websites and produce videos of those interactions as potential evidence. Quicken’s motion to compel arbitration relied on this evidence.
However, when the videos were shown in court, they ended before showing the essential part of either interaction—clicking “submit” on YVAS or “accept” to LMB’s terms and conditions. The defendant did not provide any explanation for why these videos seemingly proved the plaintiff’s claims rather than their own. Accordingly, the court denied their motion to compel arbitration.
Does this mean that the plaintiff’s claims that she never completed either form are true? Or is it the result of some technical glitch? The answers to these questions were left unexplained by the defendant, rendering the evidence completely counterproductive. This case shows that the value of using compliance providers only extends as far as the defendant is able to understand the services that these third-party vendors provide.
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