Past 7 days, courts issued two new Florida Phone Solicitation Act (FTSA) conclusions. We have been covering the sprawl of FTSA circumstances filed considering that the statute was amended to permit for a non-public bring about of motion in July 2021. The two of very last week’s conclusions were on motions to dismiss.
1st, on September 13, 2022, the Center District of Florida gave FTSA defendants their very first win in Davis v. Coastline Dental Providers, LLC. There, the plaintiff, utilizing a kind complaint that her attorneys usually use in other FTSA cases, alleged that the defendant applied a “computer computer software technique that mechanically chosen and dialed” her telephone and sent a single marketing and advertising concept to her (from a ten-digit cellphone quantity) about its dental companies without her prior convey created consent.
The court docket discovered that this sort of an allegation simply parroted the FTSA’s common prohibition on the sending of internet marketing textual content messages making use of “an automated procedure for the assortment or dialing of telephone numbers” without the need of the recipient’s prior categorical written consent. Specially, the courtroom held that:
This allegation is conclusory and the Court docket need not accept it as legitimate. The fact that Coast Dental sent Davis an unsolicited text message is reliable with the thought that Coast Dental utilised an automatic device to ship adverts en masse. Nevertheless, these information are also consistent with Coastline Dental hiring a marketing organization to mail specific messages from a own cell cell phone in whole compliance with the FTSA. From the details pleaded, it is basically achievable that Coast Dental violated the FTSA, but not plausible as the pleading conventional involves. Devoid of much more, Davis’s FTSA claim fails.
This is an anticipated consequence and the dismissal was without having prejudice. The plaintiff will have an chance to amend the grievance, so never get also fired up. Nonetheless, far more noteworthy than the conclusion alone is the court’s admonition buried in footnote 3 at the end of the choice: “Considering the Eleventh Circuit’s current decisions concerning Short article III standing for statutory violations, if the grievance is amended, [the] functions should contemplate no matter whether Plaintiff has suffered a concrete personal injury.” Given that Florida condition courts utilize the identical standing examination as federal courts (see our former site posts here and below), this will be an attention-grabbing difficulty to follow in Davis.
Two times just after Davis, in Borges v. SmileDirectClub, LLC, the Southern District of Florida denied dismissal to an FTSA assert on grounds that the FTSA does not violate the Very first Amendment and is not void for vagueness less than the Due System Clause of the Fourteenth Amendment. The decision itself is quite unremarkable and, however, basically follows the (incorrect) assessment utilized by other judges within just the Southern District.
The much better argument, in my belief, is that the FTSA applies to intrastate communications only, i.e., these that equally begin and end inside of Florida. After all, that is how the statute has been utilized traditionally, and this kind of limited geographic get to led to the interstate telemarketer “loophole,” which is just why Florida and other states petitioned Congress to pass the Telephone Customer Defense Act (TCPA).
In truth, Florida regulators and the then-Florida governor are on document noting that Florida simply cannot implement the FTSA outside of the state’s borders. To allow for for interstate application of the FTSA would violate the Commerce and Dormant Commerce Clauses (one more great argument to make and supported by a 2009 Southern District of Florida conclusion locating that Florida’s Caller ID Anti-Spoofing Act violated this sort of constitutional provisions (TelTech Sys., Inc. v. McCollum). Even so, the Borges final decision exists, and defendants really should be conscious of its holdings.
With Davis and Borges, the dismissal conclusions tally is now 5-1 in favor of the plaintiffs’ bar. The other 4 FTSA motion to dismiss conclusions of which we are informed are:
- Alvarez v. Sunshine Lifestyle & Health Advisors LLC, No. 2021 020996 CA 01 (Fla. 11th Cir. Ct. Mar. 10, 2022) (denying movement to dismiss and discovering that Florida’s standing check was glad wherever plaintiff alleged a purely lawful injury—the basic violation of the FTSA—without any attendant actual harms or damages)
- Turizo v. Subway Franchise Promotion Fund Rely on Ltd., — F. Supp. 3d –, 2022 WL 2919260 (S.D. Fla. Could 18, 2022) (finding that the FTSA neither violates the Very first Amendment nor is void for vagueness, and the TCPA’s ATDS definition is not the identical as what constitutes an autodialer under Florida law)
- Pariseau v. Created Usa, LLC, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022) (holding that the FTSA does not violate the Very first Amendment nor is void for vagueness) and
- Calvin v. Humana, Inc., No. 9:22-cv-80804-WPD (S.D. Fla. Aug. 18, 2022) (holding that the defendant’s twin-objective textual content messages were “telephonic sales calls” less than the FTSA).