Many of our articles on TCPA Tracker focus on what happens after a lawsuit is filed.  But what steps can businesses take to mitigate risk in the first instance?  A recent order to transfer venue demonstrates the usefulness of requiring that potential contacts agree to terms of use as a condition of being contacted.  Those terms can include protections for businesses, such as requiring that disputes be brought in a convenient forum.

In Cruz v. Quicken Loans, No. 2:17-cv-11369 (E.D. Mich.), the plaintiff filed a one-count complaint alleging that the defendant violated the TCPA by sending 319 unauthorized text messages to plaintiff’s phone using an ATDS.  The plaintiff alleged that he originally agreed to receive text messages when he applied for a mortgage, but continued to receive text messages after he attempted to opt out by replying “STOP” and speaking with a live operator.  The plaintiff filed the action in the Middle District of Florida where he resided. The defendant filed a motion to transfer the case to the Eastern District of Michigan where it was headquartered.  In support of its motion, the defendant submitted evidence that the plaintiff was required to agree to defendant’s “Email and Mobile Policy” by clicking a check box when he initially signed up online to receive text messages.  The Policy contained a forum selection clause restricting litigation to courts in Michigan where the action arises from the “use of Quicken Loans Mobile Messaging.” In granting the defendant’s motion to transfer, the court rejected plaintiff's arguments that (1) defendant failed to prove that plaintiff signed and was bound by the Email and Mobile Policy, (2) the forum selection clause did not apply to the TCPA claims, and (3) defendant should be estopped from enforcing the forum selection clause because the plaintiff had revoked his consent to receive text messages.  The court held that defendant’s evidence showing that plaintiff had to check on a box agreeing to the Policy to sign up for messages was sufficient to establish that plaintiff agreed to and was bound by its terms.  As to the scope of the forum selection clause, the court held that plaintiff’s TCPA claims “surely involve Plaintiff’s use of the mobile messaging service” and thus were within the “use of Quicken Loans Mobile Messaging.”  Finally, the court held that “[t]he mere fact that Plaintiff alleges that he revoked consent does not preclude Quicken from looking to the Policy for purposes of the instant Motion, and therefore Quicken [is] not estopped from invoking the forum selection clause.” 

This case serves as a reminder of the usefulness of requiring potential contacts to agree to terms of use as a condition to being contacted.  While businesses would be wise to implement comprehensive compliance policies and safeguards to mitigate the risk of TCPA liability, ensuring that contacts agree to terms of use is one easy step that businesses can take in that direction.