Michael P. Daly, Matthew J. Adler, Emanuel L. McMiller, Author at TCPA Blog

McMiller Manny

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

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Articles by McMiller Manny:

Third Circuit Affirms Dismissal of List-Mode TCPA Claims

In an unpublished opinion, the United States Court of Appeals for the Third Circuit recently affirmed the dismissal of a “list-mode” theory of liability that had been advanced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 LEXIS 9238 (3d Cir. Apr. 8, 2024) (unpublished).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.

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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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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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Eleventh Circuit Expands on Drazen II, Holding that an Unwanted Text is Sufficient for FTSA Standing

In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) for his receipt of five unsolicited telemarketing text messages. Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).

In reaching that conclusion, the Eleventh Circuit applied its recent en banc decision in Drazen II, which held that a single unwanted illegal telemarketing text message is sufficient to allege a concrete injury under the TCPA. See Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc). See our prior discussion of Drazen II here.

Drazen II explained that “the Constitution empowers Congress to decide what degree of harm is enough [for standing] so long as that harm is similar in kind to a traditional harm.”

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Eleventh Circuit Overturns Salcedo, Holding that One Text is Sufficient for TCPA Standing

In a unanimous en banc decision, the Eleventh Circuit recently held that “a single unwanted, illegal telemarketing text message” is sufficient to allege a concrete injury under the TCPA. Drazen v Pinto, No. 21-10199, 2023 WL 4699939 (11th Cir. July 24, 2023) (en banc).

Previously, the leading Eleventh Circuit precedent on Article III standing in text-message cases held that a plaintiff’s alleged receipt of a single unsolicited text in violation of the TCPA “d[id] not state a concrete harm that meets the injury-in-fact requirement of Article III.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). See our prior discussion of Salcedo here. Based on Salcedo, an Eleventh Circuit panel previously dismissed the Drazen appeal for lack of jurisdiction, holding that the class definition did not meet Article III standing requirements because it included individuals who had received only a single text message. See our prior discussion of the Drazen panel decision here. The Salcedo opinion made the Eleventh Circuit an outlier of one, with every other federal appellate court to consider the question reaching the opposite conclusion. See Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690 (5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (Barrett, J.); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).

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Florida Governor Signs FTSA Amendments Into Law

Yesterday, Florida’s Governor signed HB 761, which makes significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059).

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.’”).

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Florida Appeals Court Finds Lack of Standing in State Court TCPA Case

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.

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Florida District Courts Increasingly Staying FTSA Cases as 11th Circuit Threatens to Overturn Salcedo

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.

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