TEMU invites folks to “shop like a billionaire” but it just took a massive hit in a case that may make a group of Plaintiff’s lawyers millionaires–again.

So the biggest TCPA news of 2023 wasn’t TCPA-related at all, it was the spread of state level mini-TCPA statutes.

Probably the most dangerous state TCPA statute in the country is in Oklahoma, of all places the Oklahoma Telephone Solicitation Act (OTSA). Okla. Stat. tit. 15, § 775C.1 et seq.

OTSA provides for steep penalties for violating various rules limiting outreach technology, call timing and the use of numbers that cannot be called back.

One of the first ever OTSA cases was filed against popular online retailer TEMU (official name Whaleco)

Well the Court in this case just rejected TEMU’s bid to compel arbitration and it is really bad news for the company.

In Eakins v. Whaleco, Inc. 2024 WL 1190766 (W.D. Ok. March 5, 2024) the Court found Temu’s terms and conditions simply were not accepted by the consumer based on the improper set up of its website. And given the volume of transactions on the popular website this ruling could be a massive deal.

Here are the problems with the Temu website in the court’s view:

• The terms of use agreement appears in relatively small font at the bottom of the screen—spatially decoupled from the attention-grabbing orange “Continue” button that users click to create their account;
• Given the placement of the button “One could argue it is initially unclear whether the terms of use agreement even pertains to the creation of an account using email or phone number”; and
• Temu failed to distinguish the “Terms of Use” hyperlink from its surrounding text–it used dark gray for hyperlinks and light gray for the rest of the text.

As a result the court refused to enforce the terms and refused to compel the suit to arbitration. Not good.