Really important case for everyone in leadgen to pay attention to.
The lead generation industry continues to create TCPA risk for lead buyers– and even seemingly valid leads can cause a bunch of trouble if lead buyers don’t handle data correctly.
The case against Realtor.com involving leads sold by a website operator to Opcity, Inc.–a subsidiary of Move.com who operates as Realtor–is a great example.
In Faucett v. Move,Inc. 2025 WL 1112935 (9th Cir. 2025) the Court of Appeals upheld a district court’s ruling refusing to enforce an arbitration provision in favor of Move.com.
The underlying facts are pretty straightforward.
Guy allegedly visited HudHomesUSA.org and filled out a consent form and accepted an arbitration agreement.
The consent form included Opcity and the website operator sold the lead to Opcity (not clear if it was sold directly or through aggregators.) However the arbitration agreement operated only in favor of the website operator and its “affiliates.”
Opcity somehow allegedly transferred the lead to Move.com who allegedly made outbound calls to Plaintiff in reliance on the lead.
Plaintiff sued Move.com who tried to enforce the arbitration agreement arguing it was an “affiliate” of the website operator. The lower court and appellate courts both disagreed.
The courts determined Opcity was likely not an affiliate of the website operator because the terms implied a corporate relationship in this context and none existed. But even if one did exist via contract between Opcity and the website operator, Move.com had no such relationship and it was a separate entity from Opcity.
Further although Opcity was on the lead form that was not sufficient to expand the reach of the arbitration agreement to it, and even if OpCity could be viewed as a third-party beneficiary of the consent form–unclear–Move.com certainly could not be because it was not on the consent form.
So the take away here is that arbitration clauses in leadgen forms likely DO NOT extend to all marketing partners on a hyperlink and DEFINITELY DO NOT extend to entities related to those marketing partners.
To avoid results like these lead buyers should REQUIRE lead sellers to NAME THEM not just on marketing partners pages but also on arbitration provisions. Stated alternatively, the arbitration and consent provisions on lead generation websites should be co-extensive. So the parties bound by arbitration provisions on lead generation websites should include all marketing partners on the list!