Readers of our blog may recall a recent article in which we discussed two Florida class action lawsuits that significantly limited telemarketing companies’ exposure in cases alleging violations of the Florida Telephone Solicitation Act (“FTSA”). Our readers likely are familiar with the common defenses available to companies facing FTSA class action claims, such as prior express written consent. Now, as detailed below, Fla. Stat. § 768.734(2) provides telemarketing companies with a lack of standing defense to FTSA class action claims.
FTSA Standing For Class Action Claimants
To have capacity to sue in a Florida State class action lawsuit, Florida law requires the claimant and the putative class members to be Florida residents at the time that the alleged misconduct occurred. Codified at Fla. Stat. § 768.734, this same law requires class action claimants to allege and prove actual damages in order to proceed with a class action seeking statutory penalties under chapters 320, 501, 520, and 521. Until recently, Florida courts had not considered whether a class action claimant is required to allege and prove actual damages in order to maintain a class action under the FTSA.
Applying Fla. Stat. § 768.734(2), in Leigue v. Everglades College, a Florida State court held that plaintiff could not maintain a class action for statutory damages under the FTSA without both alleging and proving actual damages. In its holding, the court stated that purported injuries, such as annoyance or frustration, do not satisfy the actual damages requirement.
Further guidance likely is coming soon. In Morris v. Lincare, Inc., Lincare moved to dismiss plaintiff’s FTSA class claims on the grounds that plaintiff lacked capacity to sue on behalf of a class because she failed to plead actual damages as required under Fla. Stat. § 768.734(2). Although the court has not yet decided Lincare’s Motion to Dismiss (which was filed before the Leigue decision), it will be interesting to see if the District Court for the Middle District of Florida follows Leigue’s lead, and also dismisses plaintiff’s FTSA class action claims for failure to allege actual damages.
Implications for Businesses
Because the majority of FTSA class action claims only seek statutory damages, the Leigue decision is significant in that it substantially curtails potential exposure for telemarketers. Notably, the Leigue Court also ruled that statutory damages under the FTSA are limited to $500 per action, not per violation, or $1,500 if trebled. For businesses that find themselves entangled in FTSA class action lawsuits, the Leigue decision offers a pathway to limiting potential liability. As we monitor developments in the Lincare case, continue to follow our blog for updates.
The attorneys at Klein Moynihan Turco have decades of telemarketing law experience. Although the FTSA is still a relatively new tool of the plaintiffs’ bar, our attorneys already have defended businesses in countless cases involving FTSA claims. Our first-rate litigation defense team will use this experience to ensure that your business gets the best possible representation.
If you need assistance with updating your telemarketing practices and procedures or defending against a FTSA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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