So Temu is in a heap of TCPA trouble (though not as bad as KW.)

It recently lost a CRITICAL effort to compel a TCPA class action to arbitration.

Well it is facing a second TCPA suit and it tried to stay that suit pending the outcome of the appeal in the first suit. It didn’t go well.

In Smith v. Whaleco, Inc. (TEMU) 2024 WL 1862327 (W.D. Ok.. April 29, 2024) a court refused to stay a TCPA class action pending the outcome of an appeal on the enforceability of an arbitration clause that was also at issue in the new case.

As the court put it:

The Court accepts the proposition that a resolution of the arbitrability issues in this case would be easier with the benefit of the Tenth Circuit’s analysis of similar issues in Eakins. However, looking to the discretionary factors endorsed by the Tenth Circuit, the Court finds they do not weigh strongly in favor of a stay. The impact of the first factor whether Defendant is likely to prevail in Eakins – is unclear; both parties make persuasive arguments about the respective merits of their positions. As to the second factor, Defendant does not claim the denial of a stay will cause it irreparable, or even substantial, harm. If Defendant is required to prosecute or defend a second appeal, it will incur additional costs for the appeal, but if the same issues are presented in both cases, as argued by Defendant, it could request consolidation or abatement from the court of appeals. Regarding the third factor, Plaintiff also has not identified any substantial harm from a stay. Plaintiff complains of further delay in proceeding with her class-action allegations, but as stated above, Plaintiff cannot proceed at all until the arbitrability of her claim is decided. Finally, the public interest is served by a timely resolution of the arbitrability question and the advancement of this case. For
these reasons, the Court finds that the case should be not stayed pending a decision by the court of appeals in Eakins.

So there you go.

It bears repeating that arbitration clauses are incredibly important in defeating TCPA class actions–so make sure yours are enforceable! Temu’s may not be–and that is leading to a heap of TCPA trouble.

TCPA like a billionaire… hahaha.

Chat soon.