Class Action Alleges Office Depot Violated New Okla. Telephone Solicitation Act

Office Depot removed to U.S. District Court for Northern Oklahoma in Tulsa a class action filed May 24 in Tulsa County District Court in which plaintiff Teresa Brown alleges the retailer unlawfully sends telemarketing text messages to numerous individuals in violation of the Oklahoma Telephone Solicitation Act (OTSA) that was enacted last year. Office Depot denies it has any liability to Brown or the class she seeks to represent, and denies she or the putative class members are entitled to recover the relief requested, said its notice of removal Wednesday (docket 4:23-cv-00287).

Oklahoma enacted the OTSA in May 2022 to bar anyone from making or allowing to be made “a commercial telephonic sales call” if the call involves “an automated system for the selection or dialing of telephone numbers,” said Brown’s class action. The OTSA also prohibits playing a recorded message “when a connection is completed to a number called without the prior express written consent of the called party,” it said.

A called party who's “aggrieved” by an OTSA violation may bring an action to enjoin future violations, and to recover $500 in damages for each violation, and $1,500 for each violation “committed knowingly or willingly,” said the complaint. The statute took effect Nov. 1.

Office Depot used an automated system to transmit the “subject text messages” to Brown’s cellphone “because such messages were sent from telephone numbers used to message consumers en masse,” said the complaint. Office Depot’s dialing equipment “includes features substantially similar to a predictive dialer, inasmuch as it is capable of making numerous calls or texts simultaneously,” it said. The hardware and software Office Depot uses to send the messages “have the capacity to both select numbers to be dialed and to dial such numbers in an automated fashion,” it said.

Since Brown’s cellphone alerts her whenever she receives a text message, each commercial sales call made to her number by Office Depot or agents on its behalf invaded her privacy and intruded on her “seclusion upon receipt,” said the complaint. Brown never gave Office Depot or any other party acting on its behalf her prior express written consent to authorize the unwanted texts she received on her cellphone, it said.

Before initiating the communications to Brown’s cellphone, Office Depot or its agents “lacked a signed written agreement” with her that “complies with the requirements” of the OTSA, said the complaint. It defines her proposed class as anyone with an Oklahoma area code who received a commercial sales call from Office Depot, using the “same type of equipment” used to send Brown the telemarketing text messages she received from the retailer.

Brown’s complaint alleges a single claim of multiple OTSA violations. It seeks injunctive relief “sufficient to ensure” that Office Depot “refrains from violating the OTSA in the future.” It also seeks treble damages for each OTSA violation found to have been made willfully or knowingly, plus an award of attorneys’ fees and costs.