A Defense to Arbitration I Haven’t Seen Before

I’m surprised this doesn’t happen more often. William Steven Gilliam brought claims against Prince Health Group, LLC (Prince Health) on behalf of a putative class for violation of the Telephone Consumer Protection Act (TCPA). Prince Health buys information about potential insurance consumers in connection with its insurance brokerage business. It bought Mr. Gilliam’s information from a company that bought the information from another company, Top American.

Top American claims that Mr. Gilliam entered his personal information on its website and agreed to its terms of service, including a TCPA waiver. On that basis, Prince Health, seeking to enforce the terms to which Mr. Gilliam seemed to have agreed, moved to compel arbitration.

Mr. Gilliam claims that he never visited the site. He had no recollection of the site and no reason to visit it because he had healthcare through his employer. Moreover, the site had the wrong telephone number and e-mail address for him. He provided his internet search history from myactivity.google.com to show that he was not on the Internet that day.

Based on the electronic signature of someone purporting to be Mr. Gilliam, the court found that Prince Health met its initial burden of establishing that Mr. Gilliam had agreed to arbitrate. However, in Gilliam v. Prince Health Group LLC, the District Court for the Middle District of Tennessee found that Mr. Gilliam had successfully placed the question of formation of a contract to arbitration “in issue.” Prince Health argued that Mr. Gilliam failed to do so because his evidence was inconclusive. Mr. Gilliam conceded that the data from Google was incomplete. He admitted that he visited YouTube on the day in question, but the Court excused that inconsistency based on Mr. Gilliam’s admitted lack of facility with electronics. He seems to have accessed the Internet through his phone. If one accesses YouTube through its app, is that using “the Internet”? I suspect that the answer is probably yes, but I can also see why Mr. Gilliam would think that if he was not using a browser, he was not on the Internet.

In any case, Mr. Gilliam could not have been clearer in his deposition: “[I]t was not me that clicked that box, because it’s not me on that website.”  The fact that the phone number and e-mail address were incorrect supports his claim, and if it’s true, something very shady is going on the insurance brokerage world. Prince Health offered no evidence to contradict Mr. Gilliam’s clear claim, and so its motion to compel arbitration was denied.