Often, yes, if the plaintiff agreed to arbitrate individually. Federal law enforces arbitration clauses with class waivers, and a TCPA plaintiff who agreed to one can usually be sent to individual arbitration. Two problems defeat the motion most often. The plaintiff never really agreed, because a website sign-up didn’t give clear notice of the terms, or the company litigated too long before asking. A business with a well-built agreement has a strong answer to class treatment, but only if it raises the clause at the start.
When does an arbitration clause reach a TCPA claim?
When there’s a valid agreement and the claim falls within it. The Federal Arbitration Act makes a written arbitration provision in a contract involving commerce “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” under 9 U.S.C. § 2. The Supreme Court held in AT&T Mobility LLC v. Concepcion that the FAA preempts state rules that would require class arbitration, which is why class waivers in consumer contracts generally hold up.
That leaves two questions in most TCPA cases. Did the person who received the calls or texts agree to the clause? And does the clause cover a dispute about marketing calls, as opposed to the purchase or account it was written for? Customers with signed account agreements usually present an easy first question, while the harder cases involve people who never bought anything and whose only contact with the company was a web form they filled out to get a coupon or a free sample.
Does a website sign-up create an agreement to arbitrate?
Only if the website gave clear notice and the person actually agreed. That’s the lesson of Berman v. Freedom Financial Network, a TCPA class action decided by the Ninth Circuit in 2022.
According to the opinion, a digital marketing company collected consumers’ contact information on websites offering gift cards and free product samples, and that information was later used for a telemarketing campaign by calls and texts on behalf of a debt-relief company. The sign-up pages had a line in small gray type saying the user agreed to terms that included mandatory arbitration, above a large green “continue” button. The defendants, including the lead generators and the company the campaign promoted, moved to compel arbitration.
The court said no. It held that “merely clicking on a button on a webpage, viewed in the abstract, does not signify a user’s agreement to anything,” and explained: “A user’s click of a button can be construed as an unambiguous manifestation of assent only if the user is explicitly advised that the act of clicking will constitute assent to the terms and conditions of an agreement.” Because the notice wasn’t reasonably conspicuous and the button didn’t say what clicking meant, no agreement to arbitrate was formed. Test any sign-up flow against that second quoted sentence before relying on it.
Every lead buyer should notice one thing about Berman. The screen a court tests for an arbitration agreement is often the same screen the company relies on for consent to call or text. A sign-up page with faint gray terms and an unlabeled button invites the same attack on both. If the arbitration notice fails the Berman standard, expect the plaintiff to argue the consent language on that page fails with it. Auditing the two together costs very little. Our post on the Eleventh Circuit’s one-to-one consent decision covers what to keep from each consent form.
Can a seller enforce a lead generator’s arbitration clause?
Possibly, but it isn’t automatic. When the consumer’s agreement is with the lead generator, the seller that bought the lead isn’t a party to it. The Supreme Court held in Arthur Andersen LLP v. Carlisle that state law can allow a contract “to be enforced by or against nonparties to the contract” through doctrines such as third-party beneficiary status and estoppel. Don’t assume a lead generator’s clause travels with the lead. Whether a particular seller qualifies depends on the clause’s wording, for example whether it names marketing partners or the companies that will call, and on the governing state law.
Berman is a reminder that this question comes second. The seller there was among the defendants seeking arbitration, and the motion failed because no agreement was formed in the first place. A seller should confirm that the lead generator’s terms create an enforceable agreement, with the page as it actually looked on the date the consumer signed up, before it spends time and money arguing about whether it can invoke them.
How can a company lose the right to arbitrate?
By acting as if the agreement didn’t exist. In Morgan v. Sundance, Inc., an employer filed a motion to dismiss and went through mediation before moving to compel arbitration nearly eight months into the case. The lower courts had required the employee to show she was prejudiced by the delay before finding a waiver. The Supreme Court rejected that requirement, holding that a court “may not make up a new procedural rule based on the FAA’s” policy favoring arbitration. Without a prejudice requirement, the focus is the company’s own conduct.
The practical rule follows. A TCPA defendant with an arbitration agreement should raise it in its first response to the complaint, because filing a merits motion first and asking for arbitration only after that motion loses is the pattern that puts the right at risk. Raise the clause in the first filing every time.
Is arbitration always the better forum?
Not always. Individual arbitration ends the class device, which is usually the largest source of TCPA exposure for a company whose campaign reached thousands of numbers over several years. But a class waiver can lead plaintiffs’ firms to file many individual arbitrations at once, and depending on the clause and the provider’s rules, the business may bear most of the fees for each one. Our post on mass arbitration over calls and texts covers that fee exposure. For a campaign that reached a large list, that cost can rival a class settlement. A company should look at its arbitration clause the way it would look at any risk-allocation term, before it’s tested, and ask whether the fee terms and any mass-filing provisions fit its calling volume. If the case stays in court as a class action, our post on using consent to defeat class certification covers the next defense.
Arbitration issues and the records that answer them
| Issue | What the court asks | Records that answer it |
|---|---|---|
| Formation | Did the person get reasonably conspicuous notice and agree? | The sign-up page as it looked on the date, the button text, the time-stamped acceptance record |
| Scope | Does the clause cover marketing calls and texts? | The full terms in effect on the date of sign-up, and later amendments |
| Who can enforce it | Is the seller a party, a named beneficiary, or covered by estoppel? | The lead generator’s terms, the lead purchase contract |
| Waiver | Did the company act inconsistently with the right to arbitrate? | The litigation record, which the company controls from day one |
Before responding to a TCPA class complaint
- Put a litigation hold on the call and text logs, platform data, and consent records for the named plaintiff and the proposed class, including the archived version of every sign-up page involved.
- Pull the opt-out and internal do-not-call records for the named plaintiff’s number, with dates.
- Pull the National Do Not Call Registry scrub records and version dates for the campaigns in the complaint.
- Collect the customer terms, the lead generator’s terms, the lead purchase and vendor contracts, and any recorded or AI-voice message files.
- Talk to a lawyer before filing any response to the complaint, because the first filing can preserve or waive the right to arbitrate.
When a claim involving purchased leads and class arbitration waivers is filed as a proposed class action, the firm’s page on defending TCPA class actions in California covers what comes next.
Questions businesses ask about arbitration of TCPA claims
Does a class waiver stop a TCPA class action by itself?
Not by itself. The company still has to move to compel arbitration, show that the plaintiff agreed, and show that the clause covers the claim. If it does, courts generally enforce the waiver and send the claim to individual arbitration. Class members who never agreed to the clause aren’t bound by it, which matters when the proposed class mixes customers and non-customers.
Can we file a motion to dismiss first and compel arbitration later?
That’s risky. After Morgan, the plaintiff doesn’t have to show harm from the delay, and a court looks at whether the company’s own litigation conduct was inconsistent with arbitrating. Asking a judge to rule on the merits first is the kind of conduct that invites a waiver finding. If the company wants both, its lawyer should raise arbitration in the first filing and explain how the two requests fit together.
What if the plaintiff only texted a keyword to join our list?
Then the question is whether the keyword program formed an agreement to the terms. That depends on what the person saw before texting, what the confirmation message said, and whether the terms were easy to see before the person signed up. Berman’s notice-and-assent test is the starting point, and a keyword sign-up with no visible terms gives a company little to work with when it asks a court to send the case to arbitration. Our post on text-to-join and double opt-in covers the consent side of keyword programs.
Do arbitration clauses apply to small claims TCPA cases?
It depends on the clause. Some consumer arbitration provisions let either side choose small claims court for qualifying claims, so a small claims filing may be permitted even where a class action wouldn’t be. Read the clause before assuming the case belongs in arbitration.
Defending TCPA class actions with arbitration agreements
If your company has been named in a TCPA class action and its customer or lead-generation terms include an arbitration clause, the first filing in the case matters. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving purchased leads and class arbitration waivers. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921. For settlement strategy when a class case goes forward, see our guide to TCPA class action settlement.
Sources
The statute is the Federal Arbitration Act, 9 U.S.C. § 2. The decisions are Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022); Morgan v. Sundance, Inc., 596 U.S. 411 (2022); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); and Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).
This post is general information about the Telephone Consumer Protection Act and related laws as of September 25, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.