FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance

  • HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations.
  • HB 761 also stated that it should be applied retroactively to cases that were styled as class actions so long as a class had not been certified before HB 761’s effective date.
  • That retroactivity provision has caused a split between Florida’s federal courts and its state courts.
  • Two federal courts have applied HB 761 retroactively, dismissing class actions because a class had not been certified before HB 761’s effective date.
  • But two Florida state courts have refused to apply HB 761 retroactively, holding that applying a pre-suit notice requirement retroactively would violate due process.
  • Defendants will likely respond by invoking HB 761 retroactively only against unnamed class members (e.g., by striking class allegations) to avoid due process issues.
  • Relatedly, Florida state courts have sent mixed signals on TCPA/FTSA standing.
  • Until appellate courts provide clarity, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.

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Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues

A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

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Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation

In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA.

At the heart of the dispute was whether Plaintiff Smith had expressly consented to receive automated calls, and, if so, whether he had effectively revoked this consent. ExamWorks, seeking summary judgment, argued that consent obtained by Plaintiff’s insurer extended to it, as ExamWorks was conducting an independent medical examination (IME) related to Smith’s insurance claim. The company posited that since Smith had allegedly provided his cellphone number during the claim process, this constituted prior express consent, negating any TCPA violation.

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Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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Eastern District of Missouri Finds Standing Issue with TCPA Cases When Plaintiffs do Not Request to be on Internal Do-Not-Call Lists

The United States District Court for the Eastern District of Missouri recently issued an opinion with significant implications for plaintiffs’ standing to allege violations of the TCPA under Article III.  In the case of Thompson v. Genesco, Inc. (2024 WL 81187), the court addressed the critical question of whether the plaintiff had Article III standing to bring his TCPA claim.

Dennis Thompson filed a lawsuit against Genesco, Inc. in Missouri state court, alleging that Genesco had unlawfully sent him unwanted marketing text messages in violation of the TCPA and its accompanying regulations. Genesco removed the case to federal court, and the court, sua sponte, ordered supplemental briefing to address whether Thompson had Article III standing to maintain his lawsuit.

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District of Oregon Finds that Ninth Circuit’s Chennette Presumption Does Not Materially Impact Class Certification Criteria

The United States District Court for the District of Oregon recently issued a significant opinion regarding the legal framework for certifying Do-Not-Call claims. See Mattson v. New Penn Financial LLC, 2023 WL 8452659 (D. Or. 2023).

The genesis of the case was the alleged receipt of unsolicited calls to a cellphone number listed on the National Do-Not-Call Registry. Central to the lawsuit was the plaintiff’s motion to certify a class of individuals who had allegedly received similar calls from the defendant. Id.

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Recent Rulings Highlight the Importance of Challenging Imprecise TCPA Class Definitions

A recent ruling in Sowders v. Scratch Financial, Inc., No. 23-0056, 2023 WL 7525900 (S.D. Ohio Nov. 14, 2023), emphasizes the need to challenge overbroad and unascertainable class definitions in TCPA suits.  In that case, the defendant’s motions to dismiss resulted in a ruling that effectively narrowed the plaintiff’s proposed class definition.

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Ninth Circuit Clarifies Standards for Certifying a Class and Determining Treble Damages Under TCPA

Last week, the Ninth Circuit in True Health Chiropractic, Inc. v. McKesson Corp. (True Health II), No. 22-15710 (9th Cir. Oct. 25, 2023), affirmed the Northern District of California’s earlier ruling in True Health Chiropractic Inc. v. McKesson Corp., 13-cv-02219 (N.D. Cal. Apr. 27, 2022), which clarified the standards for certifying classes under the TCPA and determining whether a violation of the TCPA is sufficiently “willful and knowing” to warrant treble damages.

In True Health, plaintiffs received 13 faxes from defendant advertising and offering rebates for medical billing software.  Plaintiffs attempted to certify a class and asked for treble damages, alleging that defendant “willfully and knowingly” violated the TCPA when it sent the faxes.  In response, defendant argued that plaintiffs had consented to receiving the faxes because they filled out optional registration forms giving their contact information and had authorized the transmission of “certain computer and software usage information” by signing an end user license agreement (“EULA”).  True Health, No. 22-15710 at 4.  Plaintiffs had filled out both documents when purchasing other products from defendant.

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Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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This Blog Goes to Eleven

Today marks ten years and counting of the FCC’s revised TCPA rules—and, not coincidentally, of this blog. Over the last decade, more than 50 contributors have shared more than 500 posts about the statute’s restrictions, the FCC’s rules and regulations, the states’ enactment of so-called “mini” TCPAs, and the many twists and turns in the seemingly endless stream of litigation—much of it concocted by a colorful cast of recurring characters—arising under all of them. We have enjoyed sharing our insights and meeting our readers, and we can’t wait to see what the next ten years will bring.