New consent rules have come out and now the Sixth Circuit’s recent decision in Dahdah v. LowerMyBills.com delivers crucial clarity for the lead generation industry. Though the dispute involved arbitration enforceability, the court’s reasoning creates a comprehensive template for evaluating consent mechanisms across all lead gen operations—from TCPA authorizations to privacy disclosures and contractual terms.
Foundational Contract Principles in Digital Environments
The court grounded its holding in traditional contract doctrine: valid formation requires objective manifestations of mutual assent from both parties. Applied to online forms, this means:
- Conspicuous Presentation: Terms must be displayed prominently enough that clicking the button reasonably signals acceptance.
- Affirmative User Action: Consumers must take deliberate steps that objectively communicate agreement.
The central inquiry boils down to one question: would an ordinary user recognize they’re entering a binding agreement through their submission?
Breaking Down the Four-Factor Analysis
The Sixth Circuit created a specific diagnostic framework with four evaluation criteria:
Factor One: Page Design and Layout
Consent disclosures must appear against an uncluttered backdrop where they’re immediately noticeable, not camouflaged within dense marketing content or graphic elements.
Factor Two: Spatial Relationship to Action Button
The consent text must sit in close proximity to the submit button—positioned so users naturally encounter it when completing the form.
Factor Three: Typography and Visual Contrast
Font choices, sizing, and color schemes should enhance visibility rather than obscure the disclosure within the page design.
Factor Four: Situational Expectations
Consider whether the transaction type would lead reasonable consumers to anticipate contractual obligations.
The Below-Button Placement Question
This ruling contains a noteworthy element: the court upheld consent language positioned beneath the submit button rather than above it. The decision emphasized that above-versus-below placement isn’t dispositive, provided the language appears “directly above or below” and remains within the user’s field of vision during form submission.
That said, the court delivered a warning: creating “borderline” consent mechanisms invites judicial scrutiny and litigation risk. While below-button placement survived here, it doesn’t represent a safe harbor worth adopting industry-wide.
Compliance Action Items
Conduct Internal Form Audits
Systematically evaluate every lead capture form against the four-factor test. Is your page layout clean? Does consent language sit adjacent to your button? Do design choices emphasize or diminish visibility? Maintain documentation of this review process.
Demand Transparency from Lead Vendors
When acquiring leads from external sources, require actual form screenshots showing consent language in situ. Apply identical scrutiny to vendor forms as you do to your own. Representations alone provide inadequate protection.
Choose Cautious Design Patterns
The court’s acceptance of below-button placement notwithstanding, above-button positioning with bold typography and color differentiation remains the most defensible approach. Compliance certainty delivers better ROI than litigation defense.
Revise Vendor Contract Terms
Lead acquisition agreements should mandate adherence to the four-factor framework explicitly. Specify that violations constitute material breaches and include provisions allowing you to audit vendor compliance periodically.
Strategic Takeaway
This decision provides lead generation businesses with concrete, actionable standards for consent collection. Rather than viewing this as permission to test boundaries, smart operators will use the framework to build robust, defensible consent practices. Companies that prioritize conspicuous, clear consent mechanisms today position themselves to avoid expensive legal disputes tomorrow.
