Phoebe Mullen | October 10, 2024
A recent case has given some good examples… of what not to do.
The Telephone Consumer Protection Act (“TCPA”) requires certain disclosures be made to consumers – the name of the caller, entities that might call the consumer in response to a web form, etc. These disclosures need to be “clear and conspicuous”, but what does that mean? By evaluating specific examples of unclear and inconspicuous language, Dahdah v. Rocket Mort. (September 26, 2024, E.D. Mich.) provided a better understanding of what is “clear and conspicuous” language.
In Dahdah v. Rocket Mortg., the court denied Rocket Mortgage’s motion to compel arbitration despite Rocket Mortgage’s Terms of Use containing an arbitration clause. In denying arbitration, the court concluded that Rocket Mortgage’s disclosures (including required arbitration) were not “clear and conspicuous”. As part of the court’s reason for denying arbitration, the judge noted:
- The disclosure was in a “hard-to-read”, “tiny” gray font;
- The webpage used “distracting” visuals;
- The webpage focused on payment rather than the disclosure;
- Consumers needed to scroll to view the full disclosure; and
- The distance between the “agree and subscribe” button and the disclosure’s hyperlink.
Given these insights, we recommend adopting the following precautions to better comply with the TCPA’s “clear and conspicuous” language requirement:
- Place the disclosure next to the website form;
- Distinguish the disclosure from other information or distracting visuals;
- Emphasize the disclosure’s text through size, contrast, and location (at least as prominent as the rest of the page); and
- Make the disclosure legible across the various platforms a consumer might use to visit the site (e.g., mobile device, desktop, print).
If you have questions about TCPA compliance, please contact William Raney at braney@clrkc.com.
