Tooley v. Urban Outfitters, Inc.

On September 15, 2022, Martin Tooley filed a lawsuit on behalf of himself and other similarly situated individuals against Urban Outfitters in the District Court for the Middle District of Florida. The Complaint alleges that from June 19, 2022 through June 30, 2022, the Defendant “bombarded” the Plaintiff with “numerous telephonic sales calls” in violation of the Florida Telephone Solicitation Act (“FTSA”) and the Telephone Consumer Protection Act (“TCPA.”)

Plaintiff further alleges that his number was registered on the National Do-Not-Call Registry since 2009 and that Urban Outfitters did not obtain his consent prior to contacting him. With respect to damages, the FTSA class action Complaint alleges that “Defendant’s telephonic sales calls caused Plaintiff and the Class members harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance, and wasted time.”

FTSA Class Actions

The universe of telemarketing cases was expanded in 2021 when Florida enacted the FTSA, allowing for a private right of action. Since that time, the Florida law has been a very active resource employed by the Plaintiffs’ Bar. The Tooley lawsuit represents the latest class action filed in Florida under the FTSA and illustrates the fact that plaintiffs are taking advantage of the new law to now file claims on both a state and federal level. Prior to the enactment of the FTSA, lawsuits such as Tooley would have been brought in federal court under the TCPA.

As readers of this blog know, the FTSA is considered a “mini-TCPA” statute, but with several important differences. The two big ones are the definition of autodialer and call frequency restrictions. With respect to the definition of “autodialer,” the FTSA does not contain a definition. Under the TCPA, by comparison, “autodialer” means equipment that has the capacity to store or produce telephone numbers using a random or sequential number generator. With respect to call frequency, the FTSA limits the frequency of calls and texts on any given day. No one may place more than three commercial calls or send three commercial texts on a single subject in the same 24-hour period to a Florida State consumer.

Following the enactment of the FTSA, states like Oklahoma and Washington passed similar statutes. Other jurisdictions, such as Georgia and Michigan are close behind and have begun the process of enacting telemarketing laws along the lines of the FTSA. With each state that enacts a “mini-TCPA,” the forums that a business can be sued in increases. Businesses should also be wary of the fact that under many of the state mini-TCPA statutes, the focus is on whether a prohibited call or text was sent to a resident of the state, not whether the business is located in the state.