The Oklahoma Telephone Solicitation Act (OTSA) is now the single most expansive anti-robocall statute in the nation, replacing Florida–which just amended its previously-identical statute last month.
So you know what happens next.
The Florida legislature passes an amendment to shut down the Plaintiff’s lawyers cashing in on its massively broad Mini-TCPA bill. So the Plaintiff’s lawyers shift to Oklahoma–where a copycat version of the bill lives on.
In the latest filing, famous FTSA filer Manny Hiraldo has continued his push into Sooner country by filing his latest class action–this time against women’s vitamin seller Welfary.
In Nathan Feroli the Plaintiff claims he received the following texts:
This is true despite the fact–he claims–he did not sign up to receive them.
Plaintiff sues Welfary under familiar theories related to calling using an autodialer–very broad definition in Oklahoma–without consent and also calling a number on the DNC list without consent.
But perhaps more importantly for companies using shortcodes to text consumers in Oklahoma, Plaintiff argues that the use of a shortcode AUTOMATICALLY violates the Oklahoma Telephone Solicitation Act:
Moreover, the telephone number utilized by Defendant to send the messages (69608) is known as a short-code. Text messages utilizing a short-code can only be sent utilizing automated computer equipment and not a traditional telephone.
The telephone number utilized by Defendant to send the messages is not capable of receiving telephone calls and does not connect the call recipient, upon calling such number, to Defendant…
These allegations are particularly problematic under OTSA because a telephone number used by a caller must be able to receive return calls:
“If a telephone number is made available through a caller identification service as a result of a commercial telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a commercial telephonic sales call was placed.” Okla. Stat. tit. 15 § 775C.3.B.
Now to me it is rather obvious that this provision does not apply to a shortcode–it is not a “telephone number” to begin with!–but no court has yet held, and until one does this remains a very dangerous theory because the case can, presumably, be certified.
Further, those companies using a 10DLC to send messages that does not allow inbound calls face a difficult hurdle in Oklahoma–so WATCH OUT!
In addition to suing on his own claims–worth $500.00 per violation–Mr. Feroli is also suing on behalf of three broad classes:
TCPA DNC Class: All persons in the United States who from four
years prior to the filing of this action through the date of class
certification (1) Defendant, or anyone on Defendant’s behalf, (2)
placed more than one text message call within any 12-month
period; (3) where the person’s telephone number that had been
listed on the National Do Not Call Registry for at least thirty days;
(4) regarding Defendant’s property, goods, and/or services; (5) who
did not purchase or transact business with Defendant during the
eighteen months immediately preceding the date of the first
message; and (6) who did not contact Defendant during the three
months immediately preceding the date of the first message with an
inquiry about a product, good, or service offered by Defendant.
OTSA Autodialer Class: All persons in Oklahoma who, (1) were
sent one or more text messages regarding Defendant’s property,
goods, and/or services, (2) using the same equipment or type of
equipment utilized to call Plaintiff, (3) from November 1, 2022
through the date of class certification.
OTSA Caller ID Class: All persons in Oklahoma who, (1) were sent
one or more text messages regarding Defendant’s property, goods,
and/or services, (2) through a use of any short-code, (3) from
November 1, 2022 through the date of class certification.
You can read the whole complaint here: Welfrary Complaint
We will keep an eye on this for you.
In the meantime, if you want to get caught up on all the state Mini-TCPAs around the nation you will NOT want to miss the Duchess’ incredible breakdown coming up at the Troutman Amin, LLP Summer Marketing/Advertising/Privacy Law conference on July 13, 2023.
She will be breaking down everything you need to know about OTSA, CEMA, Maryland, New Jersey, and the pile of other states who have updated their telemarketing/outreach laws.
In-person tickets are SOLD OUT but you can still attend our virtual option!
