McMiller Manny
Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients to achieve their goals and avoid disruption.
View the full bio for McMiller Manny at the Faegre Drinker website.
Articles by McMiller Manny:
A judge in the Middle District of Florida recently dismissed Do-Not-Call claims under the TCPA, holding that “a text message is not a telephone call.” El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).
The court explained that “it is only th[r]ough the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages. … However, a District Court is not bound by the FCC’s interpretation of the TCPA.” Id. at 1.
Continue reading “Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages”
A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).
In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).
Continue reading “Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages”
A Florida federal court recently denied a defendant’s motion for summary judgment in a putative class action, finding that the text message at issue was not “purely informational” but rather a solicitation for purposes of the plaintiff’s do-not-call claim. Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).
Shortly before Hurricane Ian’s landfall in Florida, the plaintiff received the following text:
Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. [Phone Number] STOP to end.
Continue reading “Florida Federal Court Finds Air Conditioning Company’s Pre-Hurricane “Here for You” Text Was a Solicitation”
A federal court recently dismissed Do-Not-Call claims after finding that, “based on a plain reading of the TCPA and its implementing regulations,” 47 U.S.C. § 227(c) “does not apply to text messages.” Jones v. Blackstone Med. Servs., LLC, No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).
In Jones, the plaintiffs alleged that they had received telemarketing texts about the defendant’s home sleep tests, despite their having placed their numbers on the National Do-Not-Call Registry and/or asking to be placed on the defendant’s Do-Not Call list. (Although they also made passing references to “calls” as well as “texts,” the court found that those allegations were neither well pleaded nor the crux of the claim.) They filed suit under 47 U.S.C. § 227(c), which concerns violations of Do-Not-Call rules.
Continue reading “McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts”
Florida’s governor recently signed Senate Bill 232, amending Fla. Stat. § 559.72(17). Subsection 17 prohibits certain debt-collection “communications” to debtors between 9 p.m. and 8 a.m. Senate Bill 232 now clarifies that Subsection 17 does not apply to emails, ending the ambiguity that litigants faced due to differing court decisions. Given the proliferation of debt collection emails — which are used by 74% of debt collectors — Senate Bill 232’s enactment cuts off a significant source of potential liability.
Read the full article on the Faegre Drinker website
At a Glance
- Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
- The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
- The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
- Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.
Continue reading “FTSA’s Application to Nonprofits Remains Unsettled as Florida’s Legislative Session Will End Without Remedial Legislation”
A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.
In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.
Continue reading “Texas Federal Court Finds Prerecorded Calls to Schedule Pest Inspections Were Informational, Not Telemarketing”
In an unpublished opinion, the United States Court of Appeals for the Third Circuit recently affirmed the dismissal of a “list-mode” theory of liability that had been advanced by prolific professional plaintiff Andrew Perrong. Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 WL 1651274, 2024 U.S. App. LEXIS 9238 (3d Cir. Apr. 8, 2024) (unpublished).
Defendants (including the local committee of the Democratic Party) allegedly called Perrong, addressing him by name and urging him to vote for Democratic candidates in his county’s general elections. Perrong argued that the defendants had used an ATDS—and by doing so had violated the TCPA—because their equipment had allegedly used a number generator to determine the order in which to call phone numbers from a stored list of previously compiled voters.
Continue reading “Third Circuit Affirms Dismissal of List-Mode TCPA Claims”
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.
Continue reading “FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity“
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.
Continue reading “Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues”
