Overview
The last week has been great for companies defending Florida Telephone Solicitation Act (FTSA) class actions. More specifically, in three recent decisions, Florida courts variously have found that (1) the May 2023 amendments to the FTSA and, in particular, the text message “STOP” safe harbor (which we covered here), in fact, applies to uncertified putative class actions pending at the time of the amendments; (2) in order to maintain an FTSA class action seeking statutory damages, a plaintiff must plead and prove actual damages arising out of the challenged telemarketing (an issue that we wrote about a few months ago when another Florida court failed to address it in a dismissal decision); (3) a plaintiff may only receive a single statutory damages award of $500 (possibly trebled if the court finds knowing or willful violations of the statute) per action, rather than per violation; and (4) a class action alleging the impermissible use of an autodialer and state do not call violations could not be certified. Companies should pay close attention to these decisions as they provide valuable roadmaps to defending FTSA class actions, both new ones that are filed and pending cases. Let’s jump right in.
First, on December 28, 2023, in Holton v. eXp Realty, LLC, No. 8:23-cv-734 (M.D. Fla. Order (ECF 52) entered Dec. 28, 2023), the Middle District of Florida issued an order striking the FTSA class allegations on grounds that the FTSA’s May 2023 amendments apply retroactively to pending uncertified class actions. In that case, which was filed in February 2023 before the FTSA was amended, the plaintiff alleged that the defendant used an autodialer to send unsolicited marketing text messages to him and a putative class of Florida consumers. However, the plaintiff did not plead that he responded “STOP” to any of the text messages that he allegedly received. A few months after the May 2023 amendments went into effect, the defendant moved to strike the class allegations, arguing that the amended FTSA’s text message “STOP” safe harbor applied and, because the plaintiff failed to request that the text messages stop and wait fifteen days before filing suit, his claims were barred.
The court agreed, holding that the FTSA amendments applied retroactively and that the plaintiff could not maintain a class action:
The amended FTSA applies “to any putative class action not certified on or before the effective date of this act.” In other words, the amended FTSA’s application to a class is wholly prospective and the amended FTSA applies only to a class certified after May 25, 2023. [Plaintiff’s] proposed class remains uncertified; the amended FTSA applies to [plaintiff’s] proposed class. [Plaintiff] fails to allege that he replied “STOP” to an unsolicited message. [He] fails to allege (and presumably cannot allege) that each member of his proposed class replied “STOP” to an unsolicited message. [Plaintiff’s] proposed class fails the pleading requirements under the amended FTSA. Therefore, the amended FTSA bars [plaintiff’s] class action (absent “STOP” allegations) for the class and the class representative.
[Plaintiff] possesses no vested and inviolable right to represent a class. Similarly, the proposed class members hold no vested and inviolable right, free from lawfully imposed requirements, to coalesce and litigate as a class.
(Internal citations omitted.)
Because the plaintiff did not undertake the most basic modicum of self-help and respond “STOP” to any of the text messages he claimed to receive as the amendments require, he could not maintain an FTSA class action.
In the second case—Soto Leigue v. Everglades College Inc., No. 2022-008872-CA-01 (Fla. 11th Jud. Cir. Ct. Orders (ECF 60 and 61) entered Jan. 3, 2024)—the Florida Circuit Court issued separate decisions denying class certification and granting the defendant’s motion for partial summary judgment. The underlying briefing on both motions was fulsome and the decisions are great.
In Soto Leigue, the plaintiff alleged that, although she had completed a lead form in January 2020 consenting to automated calls and text messages from the defendant, in October that year, she responded “Stop” to one of the defendant’s text messages. Almost a year later, she received four additional text messages from the defendant over the span of a few weeks. After, again, opting out from future communications from the defendant in late September 2023, the plaintiff received one more text message a few weeks later. She filed a putative class action alleging that the defendant violated the FTSA by sending autodialed text messages to her and other consumers, and that those text messages were sent after she and others requested to be added to the defendant’s internal do not call list.
With respect to class certification, the court, first found that the plaintiff lacked standing to maintain her own claims and those on behalf of the putative classes; the trial court was bound by state appellate court precedent, which holds that a plaintiff lacks standing under Florida law to maintain an action based solely on an alleged statutory violation of the FTSA without any attendant “concrete” injury-in-fact. Nonetheless, despite finding that the plaintiff failed to meet that threshold standing requirement, the court addressed the various class certification factors and found that many were not satisfied. In particular, the court found that typicality was lacking because of the factual differences and unique defenses applicable to the plaintiff versus the purported class members. In assessing “adequacy”—i.e., that both the plaintiff and her counsel could fairly and adequately represent the interests of the absent class members—the court held that plaintiff failed to demonstrate that either she or her attorneys were adequate. The court also found that typicality and predominance were lacking because of a host of individualized issues related to (i) whether all of the defendant’s text messages constituted “telephonic sales calls” subject to the FTSA; (ii) whether class members made clearly expressed requests to no longer receive the defendant’s text messages; and (iii) whether the putative class members were subject to agreements requiring them to arbitrate their purported claims. Finally, the court found that the report of the plaintiff’s proposed expert, Aaron Woolfson, was “not based on sufficient facts or data, the methodology [wa]s not sufficiently reliable, and Mr. Woolfson ha[d] not reliably applied the methodology to data or facts in issue.” (Mr. Woolfson is a frequent would-be expert on which FTSA and TCPA class action plaintiffs rely, so defense attorneys should pay particular attention to the court’s discussion of his expert report.)
While the class certification decision is excellent, in my opinion, the Soto Leigue court’s separate decision granting the defendant’s motion for partial summary judgment is even better and more useful as it addresses several issues that arise in almost all FTSA cases, namely the gating issue of a plaintiff’s capacity to bring an FTSA class action in the first instance, and what statutory damages are available in an FTSA case.
As to the gating issue, the court addressed head-on whether a plaintiff may maintain an FTSA class action seeking statutory damages under the statute where she has not both alleged and proved that she suffered actual damages. The court held that a plaintiff may not. Indeed, the court explained 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. Allegations of “liquidated actual damages” or “actual liquidated damages”—damages that the court noted do not exist under Florida statutory or common law—are not enough. Nor, according to the court, are allegations of intangible harms, like annoyance or frustration. Rather, in order to bring an FTSA class action, a plaintiff must both allege and prove actual damages, i.e., an “actual, quantifiable, injury or loss.” That is a heavy burden for a plaintiff to meet.
Finally, the Soto Leigue court held that, much like cases brought under other Florida statutes, such as the Florida Consumer Collection Practices Act, statutory damages under the FTSA are capped at $500 (or $1,500 if trebled) per action, rather than “per violation.” (We’ve briefed this issue before under the FTSA but Soto Leigue appears to be the first case to address it.) The full analysis is worth restating here:
Fla. Stat. § 501.059(10)(a) states “A called party who is aggrieved by a violation of this section may bring an action to: 1. Enjoin such violation. 2. Recover actual damages or $500, whichever is greater.” Defendant argues that the FTSA does not provide Plaintiff the ability to obtain multiple statutory penalties. Among other things, Defendant compares the FTSA with the federal Telephone Consumer Protection Act (TCPA), after which the 2021 amendment to the FTSA was modeled. The TCPA expressly provides to recovery of “actual monetary damages or up to $500 per violation.” The Florida Legislature, however, did not use that same language in the FTSA.
Moreover, in the FTSA, at Fla. Stat. § 501.059(9)(a), the Legislature contemplated that in an enforcement action the State could seek a penalty “for each violation” yet excluded the “for each violation” language [i]n section (10)(a). Numerous other parts of Chapter 501 and the rest of the Florida Statutes contain provisions awarding a penalty or damages on a “per violation” basis. But, in subsection (10)(a) of the FTSA, the Legislature did not include the “for each violation” language. Basic principles of statutory construction hold that “[w]here the legislature has used a term in one section of a statute but omitted the term in another section, the court [may] not read the term into the sections where it was omitted.” Accordingly, the Court grants judgment on the pleadings in favor of Defendant as to Plaintiff’s claim that Plaintiff is entitled to recover multiple statutory penalties.
(Internal citations omitted.)
So, there we have it—an FTSA plaintiff may recover, on his or her best day in court, a single award of statutory damages under the FTSA ($500 up to $1,500).
