McCullagh v. SmartMatch: "I Was Asleep" Sends a Free Samples Site Arbitration Fight to a Jury

The Setup

The plaintiff said her number had been on the National Do Not Call Registry since July 2024, yet she received at least 13 calls pitching Medicare supplement insurance, placed by a marketing company at an insurance agency's direction. She filed a class action.

The defendants moved to compel arbitration. Their story: just before midnight Pacific Time on September 29, 2024, she visited a free samples website owned by the marketing company, entered her email, clicked "Continue," and agreed to Terms of Use with an arbitration clause and a class waiver. They said a Medicare survey answer on the same site was her consent to the calls.

Her story: she never visited the site, has no reason to want free samples or Medicare supplement coverage, was probably asleep at that hour, and has no browsing history for those dates.

Step One: Did She Even Visit?

Under the Federal Arbitration Act (FAA), when contract formation is genuinely disputed, the court must "proceed summarily" to a trial on that issue. Viewing the evidence in her favor, a reasonable juror could find she never visited. Both sides agreed a jury had to decide it.

Step Two: If She Did, Is There a Contract?

The court decided the legal question anyway, and it went the defendants' way.

The page was a classic sign-in wrap: a bright orange banner, "GET YOUR FREE SURPRISE SAMPLES BOX!," a gift box, big red arrows pointing at the email field, a huge green "Continue" button, and under it tiny black text saying that clicking meant agreeing to Terms of Use "which includes a mandatory arbitration provision," with blue underlined links. Applying Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022), the judge called the graphics "very distracting" but found the fine print readable and explicit about arbitration. That was enough for inquiry notice. If a jury finds she clicked, she agreed.

Who Decides the Rest?

If she clicked, the delegation clause sends the remaining questions to the arbitrator, including whether these defendants can enforce the agreement and whether the class waiver applies. Her argument that the consent didn't satisfy the federal E-SIGN Act may matter for TCPA consent, which requires signed written agreement, but not for the arbitration contract, which needs only ordinary mutual assent. And if the jury finds she never visited, consent goes back to the court on summary judgment.

The motion to strike the class allegations was also recommended for denial.

Why It Matters

Lead website consent is only as good as the proof that the actual person filled out the form. Timestamps and IP records will be scrutinized by a jury. And a flashy page can still form a contract if the arbitration language is readable and clearly tied to the button.

This is a recommendation by a magistrate judge; the district judge has the final say.

Read the District of Oregon findings and recommendation in McCullagh v. SmartMatch.