Last week, courts issued two new Florida Telephone Solicitation Act (FTSA) decisions. We’ve been covering the sprawl of FTSA cases filed since the statute was amended to allow for a private cause of action in July 2021. Both of last week’s decisions were on motions to dismiss.
First, on September 13, 2022, the Middle District of Florida gave FTSA defendants their first win in Davis v. Coast Dental Services, LLC. There, the plaintiff, using a form complaint that her attorneys often use in other FTSA cases, alleged that the defendant used a “computer software system that automatically selected and dialed” her telephone and sent a single marketing message to her (from a ten-digit phone number) about its dental services without her prior express written consent.
The court found that such an allegation merely parroted the FTSA’s general prohibition on the sending of marketing text messages using “an automated system for the selection or dialing of telephone numbers” without the recipient’s prior express written consent. Specifically, the court held that:
This allegation is conclusory and the Court need not accept it as true. The fact that Coast Dental sent Davis an unsolicited text message is consistent with the idea that Coast Dental used an automated machine to send advertisements en masse. However, these facts are also consistent with Coast Dental hiring a marketing firm to send individual messages from a personal cell phone in full compliance with the FTSA. From the facts pleaded, it is merely possible that Coast Dental violated the FTSA, but not plausible as the pleading standard requires. Without more, Davis’s FTSA claim fails.
This is an expected result and the dismissal was without prejudice. The plaintiff will have an opportunity to amend the complaint, so don’t get too excited. However, more notable than the conclusion itself is the court’s admonition buried in footnote 3 at the end of the decision: “Considering the Eleventh Circuit’s recent decisions regarding Article III standing for statutory violations, if the complaint is amended, [the] parties should consider whether Plaintiff has suffered a concrete injury.” Given that Florida state courts apply the same standing test as federal courts (see our previous blog posts here and here), this will be an interesting issue to follow in Davis.
Two days after Davis, in Borges v. SmileDirectClub, LLC, the Southern District of Florida denied dismissal to an FTSA claim on grounds that the FTSA does not violate the First Amendment and is not void for vagueness under the Due Process Clause of the Fourteenth Amendment. The decision itself is fairly unremarkable and, unfortunately, simply follows the (wrong) analysis applied by other judges within the Southern District.
The better argument, in my opinion, is that the FTSA applies to intrastate communications only, i.e., those that both begin and end within Florida. After all, that is how the statute has been applied historically, and such limited geographic reach led to the interstate telemarketer “loophole,” which is exactly why Florida and other states petitioned Congress to pass the Telephone Consumer Protection Act (TCPA).
Indeed, Florida regulators and the then-Florida governor are on record noting that Florida cannot enforce the FTSA outside of the state’s borders. To allow for interstate application of the FTSA would violate the Commerce and Dormant Commerce Clauses (another good argument to make and supported by a 2009 Southern District of Florida decision finding that Florida’s Caller ID Anti-Spoofing Act violated such constitutional provisions (TelTech Sys., Inc. v. McCollum). Nonetheless, the Borges decision exists, and defendants should be aware of its holdings.
With Davis and Borges, the dismissal decisions tally is now 5-1 in favor of the plaintiffs’ bar. The other four FTSA motion to dismiss decisions of which we are aware are:
- Alvarez v. Sunshine Life & Health Advisors LLC, No. 2021 020996 CA 01 (Fla. 11th Cir. Ct. Mar. 10, 2022) (denying motion to dismiss and finding that Florida’s standing test was satisfied where plaintiff alleged a purely legal injury—the simple violation of the FTSA—without any attendant actual harms or damages);
- Turizo v. Subway Franchise Advertising Fund Trust Ltd., — F. Supp. 3d –, 2022 WL 2919260 (S.D. Fla. May 18, 2022) (finding that the FTSA neither violates the First Amendment nor is void for vagueness, and the TCPA’s ATDS definition is not the same as what constitutes an autodialer under Florida law);
- Pariseau v. Built USA, LLC, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022) (holding that the FTSA does not violate the 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 dual-purpose text messages were “telephonic sales calls” under the FTSA).