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In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla.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 Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).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

The Eleventh Circuit relied on Drazen II to hold that just as Congress could “decide what degree of harm is enough” for standing under the TCPA, the Florida Legislature could use “its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim under the FTSA.”

Therefore, because “the harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of inclusion upon seclusion…receipt of an unwanted text message causes a concrete injury” sufficient for standing under the FTSA.

It remains to be seen how potential litigants will square the Eleventh Circuit’s decisions in Drazen II and Muccio with a recent decision by Florida’s Third District Court of Appeal in Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201 (3d Fla. Dist. Ct. App. 2023). See our prior discussion of Pet Supermarket here. There, the court rejected plaintiff’s contention that he 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 (intrusion upon seclusion).

We will continue to keep you posted on all the latest updates surrounding the TCPA and FTSA in Florida and the Eleventh Circuit.

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