May was a difficult month for plaintiffs and potential plaintiffs with alleged Telephone Consumer Privacy Act and Florida Telephone Solicitation Act (“FTSA,” aka Florida’s “Mini-TCPA”) claims in Florida.
First, the Florida legislature passed, and Governor Ron DeSantis signed on May 25, 2023, amendments to the FTSA. The previous version of the FTSA prohibited companies subject to it from making calls or sending unsolicited text messages using an autodialer, or an “automated system” for selecting or dialing telephone numbers. The term “autodialer” was not defined, meaning that the statute arguably broadly prohibited systems that not only automatically dialed, but also those that used automated processes to select which numbers to dial. The amended version that DeSantis signed on May 25 clarifies that “autodialer” means a system that both automatically selects and dials numbers. This will mean fewer Florida Mini-TCPA lawsuits, as fewer automated systems actually do both.
The new FTSA also relaxes the requirement for “prior express written consent” for telemarketing. The previous version required the “signature” of the called party, with no apparent exception for digital signatures. The new FTSA permits customers to consent by checking a box indicating consent on a website, or responding “YES” or otherwise affirmatively to an invitation text message.
The amendment also limits a potential plaintiff’s ability to file suit immediately. Under the new version, before a plaintiff can file suit under the FTSA, that plaintiff must afford the sender a 15-day safe harbor. Only if the sender continues texting after 15 days may the plaintiff file suit.
Finally, the new FTSA will apply retroactively for putative class action plaintiffs with lawsuits pending on or before May 25, 2023, the effective date of the amendment. The amendment will not, however, apply retroactively to individual plaintiffs with pending claims, but will apply going forward.
The amendments to the FTSA are definitely pro-business, and will reduce significantly the number of new plaintiffs’ lawsuits filed in Florida.
Earlier in May, the Florida Third District Court of Appeal dealt a plaintiff who sued under the Mini-TCPA’s federal counterpart, the TCPA, a legal blow with significance far outside telephone privacy. In Pet Supermarket, Inc. v. Eldridge, Case No. 3D21-1174 (Fla. 3d DCA May 10, 2023), the Florida Third District Court of Appeal reversed class certification and directed dismissal of a plaintiff’s case, after finding that the plaintiff lacked standing to sue for alleged TCPA violations. The Third District found that the plaintiff had failed to establish a “concrete harm” from the alleged TCPA violation. The plaintiff, Eldridge, visited a Pet Supermarket store and learned of a promotion in which customers who texted the word “PETS” to a code would be entered into a contest to win dog food for a year. After texting “PETS” to the code, the plaintiff received two texts that notified him that he was entered into the drawing, and would receive text offers, and that he had “consent[ed] to receive autodialed text messages from Pet Supermarket.” Each text ended with “Reply STOP to end.” The plaintiff did not reply to either text. The plaintiff alleged that he received five additional texts from Pet Supermarket over the next six months, each of which ended with “Reply STOP to end.” The plaintiff never replied. Instead, he sued, first in federal court. The federal court dismissed his claim because the plaintiff’s allegations of loss of privacy and intrusion upon seclusion did not constitute a “concrete injury” for Article III standing in federal court.
The plaintiff filed in Miami-Dade Circuit Court, and moved for class certification. Pet Supermarket moved for summary judgment against the plaintiff, which the trial court denied after finding that the plaintiff only had to allege a violation of his statutory rights under the TCPA to have standing.
The Third District Court of Appeal disagreed, and reversed. While the plaintiff had alleged a “bare procedural violation” of the TCPA, the court held, he still had to “demonstrate a concrete harm or injury from the TCPA violation to demonstrate his standing in Florida state court.” In other words, it was not enough that the plaintiff had alleged the violation of the TCPA. The plaintiff was required to allege an injury that was “actual or imminent … concrete, distinct and palpable.” The majority ruled that receipt of one text message during a weekend did “not rise to the level of outrageousness required for an invasion of privacy … that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Therefore, the statutory injury was not “akin to Florida’s common law harm of intrusion upon seclusion.”
Eldridge is important, not just because it, combined with the amendment to the FTSA, has effectively dealt the death-blow to TCPA and Mini-TCPA plaintiffs in Florida, but also because it continues the trend in federal and state privacy jurisprudence toward finding that statutory violations, without concrete harm, are simply not enough to move plaintiffs’ claims forward.
