Urban Outfitters has landed on the receiving end of a new lawsuit for allegedly “bombarding” consumers with promotional text messages without getting their consent. According to the complaint that he filed with the U.S. District Court for the Middle District of Florida on September 15, Martin Tooley claims that Urban Outfitters has run afoul of both federal and Florida state law by “engag[ing] in aggressive telephonic sales calls to consumers without having secured prior express written consent as required under the Florida Telephone Solicitation Act” (“FTSA”) – which prohibits the sending of marketing “calls” (including text messages) using “an automated system for the selection or dialing of telephone numbers” without the recipient’s prior express written consent – and “with no regard for consumer rights under the Telephone Consumer Protection Act” (“TCPA”).
Setting the stage in the newly-filed complaint, Tooley claims that “beginning on or about June 19, 2022, through June 30, 2022” Urban Outfitters sent a barrage of text messages to his cell phone that “constitute telemarketing” because they “encouraged the future purchase” of Urban Outfitters goods and services. Tooley alleges that “at no point in time did [he] provide [Urban Outfitters] with his express written consent to be contacted,” as required by law. (To constitute valid consent under the FTSA, a consumer must “[c]learly authorize the person making or allowing the placement of a telephonic sales call” or text message to make such contact “using an automated system for the selection or dialing of [their] telephone number.”)
Tooley assets that he “never provided ‘[Urban Outfitters] with express written consent” authorizing [the company] to transmit telephonic sales [messages] to [his] cellular telephone number utilizing an automated system for the selection or dialing of telephone numbers.” And “more specifically,” he contends that he “never signed any type of authorization permitting or allowing the placement of telephonic sales calls by text message using an automated system for the selection and dialing of telephone numbers.”
As a result of such unauthorized messages, Tooley claims that Urban Outfitters caused him and other similarly situated consumers “harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy.” Against that background, he sets out claims of violations of the FTSA and the TCPA. In addition to asking the court to certify the class action element of his lawsuit, Tolley is seeking “up to $1,500 in damages for each call in violation of the FTSA, which, when aggregated among a proposed class numbering in the tens of thousands, or more, exceeds the $5 million threshold for federal court jurisdiction under the Class Action Fairness Act.”
Rising FTSA Claims
Tooley’s lawsuit against Urban Outfitters falls in line with a growing number of FTSA suits following the amendment of the statute to allow for a private cause of action in July 2021. “Before the FTSA existed, plaintiffs mostly sued under the TCPA for alleged telemarketing violations,” according to Klein Moynihan Turco LLP’s David Klein, who notes that the FTSA “contains some key differences from the TCPA,” with the “most notable of which, at least in a litigation context, being the definition of ‘autodialer.’” (e-commerce services company Shopify, mall brand Hot Topic, and fast fashion brand Nasty Gal are among some of the companies that have been hit with TCPA lawsuits over the years.)
While an “autodialer” is defined under the TCPA as “equipment that randomly or sequentially generates phone numbers and then dials those numbers,” Klein contends that the FTSA “contains no such definition.” Instead, it contains “a somewhat vague reference to an ‘automated system for the selection or dialing of telephone numbers,'” leaving room for an appellate court to interpret the FTSA’s “autodialer” provision and/or the Florida legislature to provide “a real definition.”
As for how courts have been handling FTSA cases to date, just this month, the U.S. District Court for the Middle District of Florida dismissed such a lawsuit, “giving FTSA defendants their first win in Davis v. Coast Dental Services, LLC,” Venable LLP’s Daniel Blynn states, following a string of wins for FTSA lawsuit-filing parties. In the Davis case, the court determined on summary judgment that the plaintiff failed to make more than a “conclusory” allegation about how Coast Dental used a “computer software system that automatically selected and dialed” her number and sent her a single marketing message about its dental services without receiving her prior express written consent.
In its September 13 order, the court stated, “The fact that Coast Dental sent Davis an unsolicited text message is consistent with the idea that Coast Dental used an automated machine to send advertisements en masse. However, these facts are also consistent with Coast Dental hiring a marketing firm to send individual messages from a personal cell phone in full compliance with the FTSA.”
Two days after the court issued its decision in Davis (which includes an opportunity for the plaintiff to amend the complaint), Blynn notes that the U.S. District Court for the Southern District of Florida refused to dismiss an FTSA claim in Borges v. SmileDirectClub, LLC “on grounds that the FTSA does not violate the First Amendment and is not void for vagueness under the Due Process Clause of the Fourteenth Amendment.”
With Davis and Borges in mind, Blythe asserts that “the dismissal decisions tally is now 5-1 in favor of the plaintiffs’ bar.”
UPDATED (Oct. 3, 2022): In the wake of Tooley’s counsel filing a notice of voluntarily dismissal on Sept. 22, the court dismissed the case without prejudice on Oct. 3.
The case is Martin Tooley v. Urban Outfitters, Inc., 6:22-cv-01686 (M.D. Fla.).
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