Urban Outfitters has landed on the receiving end of a new lawsuit alleging that consumers were “bombarded” with promotional text messages without obtaining their consent. According to the lawsuit he filed Sept. 15 in the US District Court for the Middle District of Florida, Martin Tooley alleges that Urban Outfitters violated both federal and Florida state statutes by “engag[ing] making aggressive telephone sales calls to consumers without first obtaining express written consent under the Florida Telephone Solicitation Act (“FTSA”) – which requires the sending of marketing “calls” (including text messages) using “an automated system for the Selecting or dialing a telephone number” without the recipient’s prior express written consent – and “without regard to consumer rights under the Telephone Consumer Protection Act” (“TCPA”).
In the newly filed complaint, Tooley alleges that “from or about June 19, 2022 to June 30, 2022,” Urban Outfitters sent a barrage of text messages to his cellphone that “constituted telemarketing” because they “encouraged” the future purchase” of goods and services from Urban Outfitters. Tooley claims that “at no time was that the case [he] provide [Urban Outfitters] to be contacted with their express written consent” as required by law. (To constitute valid consent under the FTSA, a consumer must “[c]You expressly authorize the person making or permitting a telephone sales call” or text message to make such contact, “using an automated system of selecting or dialing [their] phone number.”)
Tooley assets he ‘never provided'[Urban Outfitters] with express written consent”. [the company] to transmit telephone sales [messages] to [his] cell phone number using an automated system for selecting or dialing phone numbers.” And “more specifically,” he claims that he “never signed any type of authorization permitting or authorizing the making of telephone sales calls via SMS using an automated system for to make the selection and dialing of telephone numbers.”
As a result, Tooley alleges that Urban Outfitters caused him and other similarly situated consumers “harm, including violations of their legal rights, legal damages, harassment, harassment, and invasion of their privacy.” With that in mind, he alleges violations of the FTSA and TCPA in the lawsuit. In addition to asking the court to confirm the class action element of his lawsuit, Tolley is seeking “up to $1,500 in damages for each call violating the FTSA, which, if consolidated into a proposed class action lawsuit, is in the tens of thousands, or more than that.” $5 million threshold for federal court jurisdiction under the Class Action Fairness Act.
Increasing FTSA claims
Tooley’s lawsuit against Urban Outfitters is consistent with a growing number of FTSA lawsuits following the amendment of the statute to allow for a private cause of action in July 2021. ‘ said David Klein of Klein Moynihan Turco LLP, who noted that the FTSA ‘contains a number of key differences from the TCPA’, the ‘most notable of which, at least in a litigation context, is the definition of ‘autodialer”.
While an “autodialer” is defined under the TCPA as “a device that randomly or sequentially generates telephone numbers and then dials those numbers,” Klein claims, “the FTSA contains no such definition.” Instead, it contains “a somewhat vague reference to an ‘automated telephone number selection or dialing system,'” leaving room for an appellate court to interpret the FTSA’s “autodialer” provision and/or Florida legislature to establish a to provide real definition .
As for court handling of FTSA cases to date, just this month the US District Court for the Middle District of Florida “handed the FTSA defendants their first victory Davis v. Coast Dental Services, LLC,” Venable LLP’s Daniel Blynn explains after a string of victories for parties filing suits with the FTSA. In the Davis case, the court found in summary judgment that the plaintiff had made no more than a “conclusive” 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 it has its dental services without their prior express written consent.
In its Sept. 13 order, the court found, “The fact that Coast Dental sent Davis an unsolicited text message is consistent with the notion that Coast Dental used an automated machine to mass-mail advertisements. However, these facts are also consistent with Coast Dental engaging a marketing firm to send individual messages from a personal cell phone in full compliance with the FTSA.”
Two days after the court made its decision in the Davis Blynn notes that the US District Court for the Southern District of Florida has refused to dismiss an FTSA lawsuit Borges v SmileDirectClub, LLC “reasoning 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 light of this, Blythe claims that “the balance of dismissal decisions is now 5-1 in favor of the bar.”
The case is Martin Tooley v. Urban Outfitters, Inc., 6:22-cv-01686 (MD Florida).