Overview
Since the May 2023 Florida Telephone Solicitation Act (FTSA) amendments went into effect, the telemarketing class action defense bar has argued that the amendments are retroactive. After all, as we wrote in May 2023, that is specifically what the Florida legislature said when passing the amendments: "[t]he amendments made by this act apply to any suit filed on or after the effective date of this act [May 25, 2023] and to any putative class action not certified on or before the effective date of this act." Not surprisingly, the FTSA plaintiff's bar has disagreed. However, earlier this week, in Germain v. Mario’s Air Conditioning and Heating, Inc., 2024 WL 3028750 (M.D. Fla. June 17, 2024), the United States District Court for the District of Florida weighed in and found that, yes, the May 2023 FTSA amendments, in fact, do apply retroactively to any uncertified putative FTSA class action pending at the time of the amendments.
In Germain, the plaintiff filed suit in February 2023, alleging that she received two unsolicited marketing text messages advertising one of the defendant’s air conditioning services. The FTSA amendments, however, added an easy and commonsense self-help requirement, namely, that before filing a lawsuit arising out of the receipt of unsolicited text messages, a consumer must first reply "STOP" to the number from which the text message(s) was/were sent and wait 15 days. Only if marketing text messages continue after that 15-day period may the consumer file an FTSA complaint. The plaintiff did not plead that she responded "STOP" to either of the defendants' text messages; she "also fail[ed] to allege—and presumably [could] not allege—that each member of the proposed class replied 'STOP' to an unsolicited text." On the defendants' motions to dismiss, the central FTSA issue was whether the May 2023 amendments apply retroactively. For, if they do, then the plaintiff’s uncertified putative FTSA class claims failed and no FTSA claim could proceed. The court answered affirmatively, finding in favor of retroactive application: "Because Plaintiff failed to certify this class action on or before May 25, 2023, the amended FTSA applied to Plaintiff’s individual claim and the class action." The plaintiff's individual FTSA claim was dismissed without leave to amend and the FTSA class allegations were stricken.
In reaching its conclusion, the Germain court joined other federal courts that have found that the 2023 FTSA amendments apply retroactively as the state legislature intended, like in Holton v. eXp Realty, LLC, -- F. Supp. 3d --, 2023 WL 9285131 (M.D. Fla. Dec. 28, 2023) (discussed here), and Gadke v. N.Y. Tribeca Grp., 2024 WL 168329 (E.D.N.Y. Jan. 16, 2024). However, it bears noting that several Florida state court decisions have rejected retroactive application of the FTSA amendments. Thus, as with most telemarketing laws, there is a split of judicial authority, which only serves to underscore the incredibly high stakes associated with these types of cases.
