New TCPA Complaint Claims OpenAi and Twilio are Liable for User Initiated Robotexts Violating the TCPA

Every trade show you attend these days you see “AI voice” outreach platforms promising to replace human agents.

“They’re cheaper.”

“They’re better.”

“They’re more compliant.”

As if consumers would rather talk to a bot than a person.

Leave that alone– most of these thousands of platforms that have sprung up overnight sit on the back of ChatGPT or some other OpenAI instance. And while OpenAI probably has nothing to do with (and no idea about) these messages undoubtedly a huge number of calls made using these AI outreach platforms violate the TCPA.

Why?

Well, first this technology IS regulated by the TCPA yet it is being deployed under circumstances where consent has not been properly obtained (I won’t go into more detail for the moment.)

Bottom line, however, AI voice outreach is promising for callers and for TCPA litigators alike.

But as lucrative as TCPA litigation is when hopscotching from defendant to defendant imagine how INCREDIBLY lucrative it would be to sue OpenAI directly for ALL of the calls being made by its various users.

I don’t have stats on this but my anecdotal experience counsels that hundreds of millions of calls and texts A DAY are being made leveraging OpenAI right now. And if only 1% of those are illegal– and that is WAY low–OpenAI’s contribution to unwanted robocall/texts is in the tens of millions of calls a day range.

At $500.00 per call you’re talking about $1BB a day in theoretical exposure here– and with a four year look back on the TCPA the liability in a TCPA class action looping in all illegal calls made using Open AI could exceed a trillion dollars no sweat.

And that seems to be what one enterprising law firm seems to be thinking.

In William Lowry v. OpenAi, et al. a consumer in Virginia is seeking to hold OpenAI directly liable for texts made via a company called Fresh Start Group through numbers obtained from Twilio.

Per the complaint

The complaint seeks to represent an eye-poppingly large class of all persons in the U.S. who received marketing messages generated on an OpenAI platform where the number was on the DNC list and OpenAI does not have consent to send that message.

I’m going to tell you, that’s a huge number of people. And exposure here is theoretically over a trillion dollars without breaking a sweat.

Now, when I say “theoretically” I mean precisely that. There are massive hurdles to landing a blow on OpenAI in a TCPA case– but if Plaintiff can show OpenAI knew or should have known it’s product suite was being endlessly used to violate the TCPA there might be something to this suit (although the incredible breadth of the class definition would NEVER meet with success.)

So.. wait a second.

This means OpenAI might actually be in some trouble here.

And that means all AI voice and text solutions that sit atop an OpenAI engine better pay attention.

You can imagine swift and cruel (for businesses relying on ChatGPT for outreach) changes from OpenAI in response to this lawsuit.

You can read the entire complaint here: OpenAi TCPA Complaint

We will keep a close eye on this VERY interesting one.

Happy new year!