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.

HB 761

Since Florida’s Governor signed HB 761 into law on May 25, 2023, which amended the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059), courts have diverged on applying the amendments retroactively to cases that were pending and styled as class actions but had not been certified before HB 761’s enactment, as provided by HB 761.

As a reminder, HB 761 made significant changes to the FTSA, including:

  1. It amended the autodialing restrictions to apply only to “automated systems for the selection and dialing of telephone numbers”;
  2. It expanded the definition of “signature” to confirm that it includes acts such as “checking a box” and “responding affirmatively to receiving text messages”; and
  3. It created a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations, requiring a plaintiff to reply “STOP” to the number from which they received the text message, and allowing a defendant to avoid litigation by removing the plaintiff from their texting list within 15 days of receiving the “STOP” message. This has been referred to as the “pre-suit notice provision.”

Two Federal Courts Have Applied HB 761 Retroactively

Before HB 761’s effective date, one federal judge observed that the constitutionality of the retroactivity provision was unclear. See Murray v. Riders Share, Inc., 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.’”).

Since then, however, the two federal courts that have fully considered the issue have applied HB 761 retroactively and dismissed class action complaints of plaintiffs who had failed to obtain class certification before HB 761’s effective date and failed to allege that they replied “STOP” to any of the text messages they received.

In Holton, the court found that the plaintiff failed to allege (1) that he replied “STOP” to an unsolicited message or (2) that each member of his proposed class replied “STOP” to an unsolicited message. Holton v. eXp Realty, LLC, 2023 U.S. Dist. LEXIS 233394, at *3 (M.D. Fla. Dec. 28, 2023). Because the proposed class remained uncertified, the amended FTSA barred the class action for both the class and the class representative due to the failure to make the required allegations. Id. (“[Plaintiff] possesses no vested and inviolable right to represent a class [and] the proposed class members hold no vested and inviolable right, free from lawfully imposed requirements, to coalesce and litigate as a class.”). The court declined to rule on the plaintiff’s individual claim, finding that, without class allegations, the Class Action Fairness Act (“CAFA”) no longer supported subject matter jurisdiction, requiring immediate remand.

In Gadke, the court found that the amended FTSA applied to plaintiff’s action because he had not moved for class certification. Gadke v. N.Y. Tribeca Grp., 2024 U.S. Dist. LEXIS 7879, at *3 (E.D.N.Y. Jan. 16, 2024). The complaint did not allege that the plaintiff replied “STOP” to any of the messages that he received, nor did any of the screenshots included in the complaint show a “STOP” message. Id. at *4. As such, the court held that the plaintiff was precluded from bringing an FTSA action for damages by the plain text of the statute. Id. In contrast to Holton (which only dismissed the class claims and remanded the individual claims), the court in Gadke dismissed the plaintiff’s individual claim for damages, even though jurisdiction was based on CAFA. But, the court declined to exercise supplemental jurisdiction over the claims for equitable and declaratory relief, which were not subject to the FTSA’s pre-suit notice provision.

Two State Courts Have Not Applied HB 761 Retroactively

Two Florida state courts that have considered this issue have refused to apply HB 761 retroactively to putative class actions, holding that applying a pre-suit notice requirement retroactively to dismiss the named plaintiff’s case would violate the Florida Constitution’s due process clause.

In Smith, the court held that it was “improper” to apply the FTSA’s pre-suit notice provision retroactively. Smith v. Rocky Brands, Inc., 2023 Fla. Cir. LEXIS 1053, at *7-8 (14th Fla. Cir. Ct., Holmes Cnty. Sept. 12, 2023). The court relied, in part, on Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010), in which the Florida Supreme Court held that the pre-suit notice requirement of Florida’s Motor Vehicle No-Fault Law was not procedural but substantive and could not be applied retroactively. Id. at *8-10 (“[I]f a statute requiring pre-suit notice purported to subject to dismissal an action filed before the statute became effective, the statute would likely violate, among other things, the right of due process and access to the courts.”).

In Fiallo, the court also declined to apply the FTSA’s pre-suit notice provision retroactively. Fiallo v. El Car Wash, LLC, No. 2023-015782-CA-01 (11th Fla. Cir. Ct., Miami-Dade Cnty. Nov. 2, 2023). (A similar order was previously entered by the court on October 3, 2023, see 2023 Fla. Cir. LEXIS 1230, but was vacated on October 5, 2023.) The court relied on Menendez, as well as Am. Optical Corp. v. Spiewak, 73 So. 3d 133 (Fla. 2011), in which the Florida Supreme Court held that the retroactive application of the Asbestos and Silica Compensation Fairness Act (which added a requirement for claimants to prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor) violated the Florida Constitution’s due process clause.

Relatedly, Florida State Courts Have Split on Standing

While Florida’s federal and state courts are debating whether HB 761 should apply retroactively, Florida state courts are also addressing recent appellate decisions in Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201 (3d Fla. Dist. Ct. App. 2023), Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc), and Muccio v. Global Motivation, Inc., 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished), regarding standing under the TCPA and FTSA for receipt of a single unsolicited text message. See our prior discussion of these cases here.

In Pet Supermarket, Florida’s Third District Court of Appeal rejected the contention that the plaintiff had sufficiently alleged a concrete injury under the TCPA, holding that the only text that had “arguably” intruded upon his private space did not rise to the level of “outrageousness” required for an invasion of privacy. The Eleventh Circuit reached a different outcome, holding in Drazen that a single unwanted illegal text message was sufficient to establish a concrete injury under the TCPA. In Muccio, the Eleventh Circuit went further, holding that receipt of an unwanted text message causes a concrete injury sufficient for standing under the FTSA.

While the Eleventh Circuit’s decisions in Drazen and Muccio settled the issue in federal court cases, Florida’s state trial courts are still seeking clarity. Smith appears to be the first decision that attempts to square these three cases. Smith essentially disregarded Pet Supermarket, finding that Drazen and Muccio were more recent, and thus more applicable (particularly at the motion to dismiss stage). The court in Fiallo reached a similar outcome, finding that Drazen and Muccio were more recent than Pet Supermarket, and holding that the issue was more properly examined at the class certification or summary judgment stage.

But another Florida state court recently denied a plaintiff’s motion for class certification, finding that the court was bound by the decision in Pet Supermarket which remained good law, and that any arguments to the contrary should be raised to the appellate court. Leigue v. Everglades College Inc., 2024 WL 306200 (11th Fla. Cir. Ct., Miami-Dade Cnty. Jan. 3, 2024).


A future decision may attempt to resolve this growing divergence between federal court decisions that retroactively applied HB 761, and Florida state court decisions that reached the opposite conclusion. In the meantime, defendants, particularly in Florida state court cases, will likely limit their arguments to striking class allegations, rather than trying to dismiss individual plaintiff claims, to avoid any due process issues. As the court stated in Holton, there is “no vested and inviolable right to represent a class” and “proposed class members hold [no right] to coalesce and litigate as a class.”

It is also possible that a future decision by the Florida Supreme Court or a lower appellate court will square Drazen, Muccio, and Pet Supermarket, and either follow Eleventh Circuit precedent or clarify that standing under the Florida Constitution requires something more than Article III standing. Until then, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.

We’ll continue to keep you posted regarding the impact of the amended FTSA on the lawsuits that have flooded Florida’s courts in the last two years.

Emanuel L. McMiller

About the Author: Emanuel L. McMiller

Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients to achieve their goals and avoid disruption.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

Marsha J. Indych

About the Author: Marsha J. Indych

Marsha Indych handles complex commercial litigation and arbitration matters in jurisdictions throughout the United States, focusing on consumer class actions and domestic and international business disputes. She represents clients from a broad array of industries, including the health care, financial services, media, technology and energy industries. Marsha defends leading businesses against consumer protection-based claims. She has successfully defended dozens of Telephone Consumer Protection Act (TCPA) actions, including class actions, individual actions, arbitrations and prelitigation disputes in jurisdictions across the country. Her practice includes helping clients navigate evolving — and sometimes conflicting — standards for TCPA compliance. She regularly contributes to the TCPA Blog, providing analysis about recent developments regarding the statute.

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