Matthew Kane Featured in Massachusetts Lawyers Weekly Article on Recent Auto Industry Sales Call Case

Matt Kane was featured in a Massachusetts Lawyers Weekly article about a court case involving a Toyota dealership and unwanted sales calls.

In a recent case, a customer sued a Toyota dealership claiming it kept calling her after she’d asked to be left alone, despite her number being on the national do-not-call list. The dealership argued the case should go to arbitration instead of court, because the customer had agreed to sweeping click-wrap terms, including an arbitration provision, when she submitted her information to a pair of third-party car-shopping websites.

The Court enforced one arbitration agreement, but not the other. One website couldn’t produce evidence of the customer’s consent to its terms. But the other site produced a clear record showing how its web pages would have appeared to the customer, including the click-wrap terms that were a prerequisite to receiving pricing offers. Based on the latter, the Court enforced the arbitration provision.

When asked to respond to the case, Matt’s biggest takeaway came down to the evidence: “the analysis really turns on the facts… the TrueCar clickwrap stuck because they had a screenshot of what the customer would have seen when perusing the web. AutoWeb, however, did not do the same. Once that fact issue was resolved, the law was very clear.”

Ultimately, the lesson for businesses: if customers agree to terms online – whether that’s an arbitration clause, a liability waiver, or anything else – keep a record of exactly what they saw and clicked. Without it, those terms may not hold up later.