In December, the United States District Court for the Northern District of Georgia refused to submit to arbitration a dispute alleging violation of the Telephone Consumer Protection Act because plaintiff Keith Hobbs provided a declaration stating that he did not visit defendant Apollo Interactive, Inc.’s website. In doing so, the Court kept alive a TCPA class action where Hobbs allegedly provided his telephone number – and may or may not have agreed to arbitrate – in an online submission.

Though Hobbs’s case is ostensibly about TCPA violations, Apollo’s website was the focus of briefing in its motion to dismiss. The website, BestAutoInsurance.com, includes terms and conditions that, in many cases, would be dispositive. The website states that a person who enters his or her contact information and clicks “submit” agrees to two key provisions. First, he or she agrees to receive communications from an automatic telephone dialing system, the essential equipment defined by the TCPA. Second, he or she agrees to arbitrate any claims related to the website’s terms and conditions. Apollo contended that plaintiff Hobbs agreed to both provisions when he submitted his contact information online.

The Court’s ruling on the motion to dismiss came down to dueling declarations. Defendant Apollo presented a declaration attesting that on August 29, 2018 at 3:57 p.m., Hobbs’s contact information was entered in its website from a specific IP address located in Norcross, Georgia. Contrastingly, Hobbs produced his own declaration stating that he did not visit the website and, furthermore, that he could not have visited the website at that time. According to Hobbs, he was driving from his job at the Atlanta Zoo to Columbus, Georgia at the precise time when his contact information was submitted to the site. Based on the declaration, the Court concluded that a reasonable fact finder could find that Hobbs did not enter his personal information and correspondingly did not assent to the site’s arbitration clause. What could have been a surefire win on two points – arbitration and consent to be contacted using an ATDS – all came down to a question of what a reasonable fact finder could conclude.

The case is Hobbs v. Apollo Interactive, Inc.; a copy of the Court’s opinion is available here.