As readers of our blog know, the Florida Telephone Solicitation Act (“FTSA”) (Florida’s state law version of the Telephone Consumer Protection Act (“TCPA”)) was amended in May 2023. While the FTSA amendments narrowed the FTSA’s scope and clarified some ambiguities, two recent Florida decisions discuss the applicability of the FTSA amendments, and serve to limit the potential exposure businesses may face in future FTSA class action lawsuits.
FTSA Amendments Are Prospective And A Class Plaintiff Must Prove Actual Damages
In Holton v. eXp Realty, the Middle District of Florida was asked to determine whether the FTSA’s amended provisions applied retroactively to class actions not certified prior to the amendments’ effective date. In Holton, filed in February 2023 before the amendments to the FTSA became effective, the plaintiff alleged that defendant used an autodialer to send unsolicited marketing texts to him and a proposed class of Florida consumers. One of the amendments to the FTSA includes a requirement that consumers wait 15 days after texting “STOP” before filing suit for any subsequent text messages. Because plaintiff did not allege that he replied “STOP” to any of the text messages he purportedly received, defendant moved to strike the class allegations on the grounds that the FTSA’s text message “STOP” safe harbor provision applied. The Court agreed and granted defendant’s motion to strike plaintiff’s class allegations. In its decision, the Court explained that “[t]he 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 applies only to a class certified after May 25, 2023.
In Leigue v. Everglades College, a Florida State court heard a constitutional challenge to the amended FTSA. Although the Court declined to consider the constitutionality of the FTSA amendments, it did issue two separate decisions, one in which it denied class certification and another in which it granted defendant’s partial summary judgment motion. Significantly, the Court clarified that a plaintiff cannot pursue a class action for statutory damages without both alleging and proving actual damages. In its holding, the Court stated that Florida Statute Section 768.734 mandates that a plaintiff in a class action seeking statutory damages under the FTSA must allege and substantiate actual damages. The Court explained that purported injuries, such as annoyance or frustration, do not satisfy the actual damages requirement. 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. Accordingly, this ruling significantly curtails the potential exposure for telemarketers in putative class actions brought pursuant to the FTSA.
Implications for Businesses
For businesses that find themselves embroiled in FTSA class action lawsuits, the FTSA amendments and these recent decisions offer a pathway to limiting potential class action liability, particularly in those cases in which a putative class has not been certified. As always, maintenance of comprehensive records, especially those concerning consumer opt-outs from text messaging campaigns, remains critically important.
The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law. Although the FTSA is relatively new, our attorneys 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 possible representation.
If you need assistance with updating your telemarketing practices and procedures or defending against a FTSA lawsuit, please email us at firstname.lastname@example.org 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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