HB 761 states that these amendments will not only take effect immediately, but also apply retroactively to any pending FTSA action styled as a class action but was not certified as such before the Governor signed the law. But there are already signs that the law’s retroactivity provision will face challenges, including one court’s recent observation that the constitutionality of that particular provision is unclear. See Murray v. Riders Share, Inc., No. 6:22-cv-2329-PGB-DCI, 2023 U.S. Dist. LEXIS 83388, at *3 n.2 (M.D. Fla. May 12, 2023) (“Retroactive application of a civil statute ordinarily transgresses constitutional limitations on legislative power ‘if the statute impairs vested rights, creates new obligations, or imposes new penalties.’”).
Florida’s Third District Court of Appeal recently reversed class certification and directed dismissal, holding that the plaintiff had failed to establish any concrete harm from an alleged violation of the TCPA and thereby lacked standing. Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (3d Fla. Dist. Ct. App. May 10, 2023). (Note that this opinion has yet to be released for publication in the permanent law reports, as a motion for rehearing, clarification, or certification, or a petition for review, may be pending.)
Eldridge had visited the defendant’s store, where he learned about a promotion in which customers could win free dog food for a year if they enrolled in the defendant’s text-message program. After enrolling, Eldridge immediately received two texts, and then received an additional five texts over a period of six months. All the texts contained the message “Reply STOP to end” and concerned promotional or advertisement information.
Plaintiffs’ attempts to keep FTSA cases venued in Florida state courts are being upended by the Eleventh Circuit’s recent decision to revisit en banc its Article III standing precedent in single-text message cases. Previously, Florida district courts were generally remanding such cases to state court. Since then, a couple of district courts have remanded cases to state court, but several more have stayed cases pending the Eleventh Circuit’s decisions in two pending appeals, Drazen v. Pinto, No. 21-10199 (11th Cir.) and Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir.). And the momentum appears to be in favor of staying such cases.
On April 11, Judge Honeywell of the Middle District of Florida granted a defendant’s unopposed motion to stay in Read v. Coty DTC Holdings, LLC, pending the resolution of Drazen and Muccio. No. 8:23-cv-00662-CEH-MRM, 2023 WL 3431820 (M.D. Fla. Apr. 11, 2023). The plaintiff in Read had alleged receipt of a single text message in violation of the FTSA. Eleventh Circuit precedent on Article III standing holds that a plaintiff’s alleged receipt of a single unsolicited text message in violation of the TCPA does not meet the injury requirement for Article III standing. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). However, the Eleventh Circuit recently vacated a panel decision that had reaffirmed that precedent to re-evaluate its application en banc. See Drazen. Additionally, another appeal before the Eleventh Circuit will address whether Article III injury exists for plaintiffs alleging receipt of multiple texts, not just one, and who allege a violation of the FTSA, not the TCPA. See Muccio. Against this backdrop, the Read court found that the Eleventh Circuit was an outlier with the holdings of other Courts of Appeal that have found standing does exist based on an unsolicited text message. Additionally, the court noted that the Eleventh Circuit’s precedent on this issue appears to have been called into question due to the pending appeals in Drazen and Muccio. As such, the court stayed the case.
The Eastern District of Pennsylvania recently reaffirmed that an objective “four corners” standard governs whether faxes are “advertisements” that must meet the TCPA’s consent requirement. Separately, any fax that compares the sender’s product or service to others could constitute an “advertisement” under the Court’s decision.
In Steven A. Conner DPM, P.C. v. Fox Rehabilitation Services, P.C., 2023 WL 2226781 (E.D. Pa. Feb. 24, 2023), Plaintiff (a podiatrist) alleged that Defendant sent unsolicited faxes to his office during the onset of the COVID-19 pandemic to promote its in-home physical therapy services. Plaintiff had never had contact with or made a referral to Fox Rehab before receiving the faxes. Fox Rehab testified at trial that it had sent the faxes to Plaintiff as part of a blast campaign to inform referring healthcare providers that it was adhering to recently issued public guidelines for stemming the spread of coronavirus. Since Fox Rehab admitted to having sent the faxes, the sole issue for the Court was whether they were “unsolicited advertisements” under the TCPA.
The Florida Senate passed HB 761 late yesterday by a 29-10 vote, less than a week after the bill sailed through the Florida House by a 99-14 vote. As we previously reported, passage of this bill paves the way for significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059). The bill must now be presented to the Florida Governor, who will have up to 15 days following presentment to sign or veto the bill. See Fla. Const., Art. III, § 8(a).