Overview
Just over a week ago, in Morris v. Lincare, Inc., 2023 WL 5336780 (M.D. Fla. Aug. 18, 2023), the US District Court for the Middle District of Florida dismissed a putative Telephone Consumer Protection Act (TCPA) and Florida Telephone Solicitation Act (FTSA) class action. While the decision contains several nice, common sense conclusions, one of the defendant's arguments the court did not address may be the most interesting to companies that telemarket to Florida consumers and defense practitioners alike.
In Morris, the plaintiff alleged the defendant violated the two statutes by placing unsolicited prerecorded message telemarketing calls to her cell phone. The court dismissed the operative complaint as a "shotgun pleading" for its failure to separate each claim for relief into a distinct cause of action — in this case, the complaint alleged violations of separate TCPA subsections, which prohibit unsolicited prerecorded message telemarketing calls to cell phones (47 U.S.C. § 227(b)(1)(A)(iii)) and "residential" telephones (47 U.S.C. § 227(b)(1)(B)), respectively. Nonetheless, the court addressed several other of the defendant's dismissal arguments "to facilitate the orderly progression of this case" in the event the plaintiff amends her complaint again.
Most interesting of the court's findings was its holding that residential and cell phones, in fact, are distinct types of telephones under the TCPA. For context, the TCPA contains separate subsections that prohibit certain types of telemarketing calls to cellular telephones on the one hand, and "residential telephones" on the other. The court began its analysis by explaining that, although the terms "home phones" and "residential telephones" are often used by courts interchangeably, both "are distinct from cell phones." And that matters under the statute:
. . . Plaintiff appears to only be claiming that calls were made to her cell phone. While Plaintiff alleges she uses her cell phone as a residential line, the statute and case law make clear they are not one in the same. . . . Thus, in amending her complaint, Plaintiff should be mindful that calls to a cell phone that are violative of the TCPA are addressed under § 227(b)(1)(A)(iii), whereas calls to a residential line are properly brought in a separate count under § 227(b)(1)(B). If no calls were made to a residential line, no claim should be brought under the latter provision.
Courts nationwide are split on this issue. While other Florida courts have suggested there is a difference between the two types of telephones, the Morris court’s discussion is the most direct. Notably, although the specific claim at issue in Morris was based on the defendant's alleged use of prerecorded messages in telemarketing calls, the same analysis and conclusion should apply to the TCPA's do not call provisions, which prohibit telemarketing calls only to "residential telephone" numbers.
The court, however, did not reach the defendant’s gating argument that the plaintiff failed to sufficiently allege actual damages that would allow her to maintain a class action seeking statutory damages under the FTSA. Since the FTSA was amended in July 2021 to allow for a private cause of action, plaintiff’s standing to bring class actions under the statute seeking only the draconian, uncapped statutory damages for bare violations of the statute, i.e., without any actual concrete harm, have been challenged under federal Article III and Florida’s distinct state law on standing. But, the Morris defendant argued something different—that, irrespective of Article III and other standing jurisprudence, Florida Statute § 768.734 (entitled Capacity to sue) requires a class action plaintiff seeking statutory damages under the FTSA must plead and prove actual damages.
Section 768.734(2) makes clear that “[n]otwithstanding any law to the contrary, in order to maintain a class action seeking statutory penalties under chapter[ ] . . . 501 [the chapter containing the FTSA] . . . the class action claimants must allege and prove actual damages.” Do you see that? In order to recover statutory damages under the FTSA, which is what every FTSA plaintiff seeks as a practical matter, the plaintiff must both allege and prove actual damages. And, there are almost never true actual damages at issue in FTSA cases. Indeed, the Florida State Senate Staff Analysis and Economic Impact Statement evaluating the bill that became Section 768.734 noted this requirement prohibits “class actions for monetary relief for technical violations of the law that do not cause an injury.” The Senate Staff Analysis also differentiated between “legal injuries” and “actual damages”: “Florida currently only requires proof of nominal damages, not actual damages for the recovery of monetary relief. Nominal damages are damages for a legal injury ‘when there is no substantial loss or injury to be compensated.’ In contrast, ‘actual damages’ are ‘damages that repay actual losses.’”
For years, FTSA plaintiffs have argued a bare procedural violation of the statute is enough “harm” to demonstrate standing. Florida state appellate courts have largely rejected that position, but the Eleventh Circuit recently appeared to agree with it. We’ll have to follow Morris and see what the court does with the defendant’s Section 768.734(2) argument, which will surely be asserted in support of a forthcoming motion to dismiss the plaintiff’s second amended complaint that was filed the same day as the court issued its dismissal decision. Will the plaintiff’s conclusory allegation that the defendant’s calls caused her “harm, including liquidated actual damages” be enough? Time (and the court’s decision) will tell.
