There have been scores of Florida Telephone Solicitation Act (FTSA) class actions filed since July 1, 2021, when the statute was amended to provide for a private right of action; the Florida legislature thinks that number may be more than 100. As might be expected, there are a number of motions to dismiss pending in FTSA litigations. Many make arguments regarding the constitutionality of the statute and/or that the law is preempted by its federal counterpart (the Telephone Consumer Protection Act (TCPA)). A couple of defendants also have argued lack of standing, i.e., that the receipt of one or two allegedly unsolicited, autodialed text messages does not constitute a sufficiently concrete injury to confer standing on the plaintiff.
Well, the first FTSA decision issued yesterday, March 10, 2022, in an oral ruling from the bench in Alvarez v. Sunshine Life & Health Advisors LLC. But it actually has little to do with the FTSA itself. We’ve previously written about Alvarez and a pretty wild position taken by the plaintiff’s attorneys in that case during the first day of oral argument on the defendant’s motion to dismiss.
During the continued hearing on that defendant’s motion, the Florida state court found that the complaint alleged the receipt of two—not one—unsolicited, autodialed text messages, and that Florida state courts do not apply the same familiar Article III standing test that applies in federal courts. Relying on a 2011 Florida Supreme Court decision in Sosa v. Safeway Premium Finance Co., the Alvarez court held that an alleged legal injury—the simple violation of the FTSA—without any attendant actual harms or damages is enough to give plaintiffs a ticket into state court.
Yet, the Alvarez court was not presented with Florida Supreme Court Chief Judge Canady’s more recent articulation of the standing inquiry in state court in Johnson v. State, which aligns with the federal standard. Nor did the court receive argument on why Sosa appears to be largely the exception rather than the general rule with respect to state court standing. And the court did not pick up on the fact that the Sosa court relied on federal Article III standing precedent, or that that plaintiff suffered actual economic injury as opposed to a purely legal one.
Furthermore—and this is pretty important for many of the defendants who are litigating FTSA cases—the Alvarez court did not reach any constitutional or preemption issues because, during the first day of oral argument, the defendant advised the court that it was no longer pressing those issues in support of its motion to dismiss. It also bears noting that the Alvarez decision is at odds with another recent decision from the same court (different judge) in a TCPA case (Toney v. Advantage Chrysler-Dodge-Jeep, Inc.), which held that the receipt of a single ringless voicemail is not sufficient to confer standing under state law. As one of my local counsel in Florida recently explained to me, “Florida gonna Florida.” And who doesn’t like a good split in legal authority, right?
The transcript from that day’s oral argument is available here. I also have the transcript from the first day’s argument if you want it. Give me a call. Let’s talk.