In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class in Florida state court, alleging violations of the Florida Telephone Solicitation Act (“FTSA”). Defendant removed the case to the United States District Court for the Southern District of Florida. Id.
Sometimes dubbed Florida’s “Mini-TCPA,” the FTSA regulates telemarketing activities within Florida. The law was designed to protect consumers from unwanted telemarketing calls and ensure that telemarketers comply with certain rules and regulations. The FTSA prohibits certain acts, such as calling individuals who are on the National Do Not Call Registry, using automatic dialing systems to call emergency phone numbers, and using pre-recorded messages without prior consent.
In Weitz, Plaintiff alleged that Defendant engaged in telephonic sales calls to consumers without securing prior written consent as required by the FTSA. Id.; see also Fla. Stat. § 501.059(8)(a) (“A person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.”). Specifically, Plaintiff alleged that Defendant sent an unsolicited text message to Plaintiff and other class members promoting a getaway trip to Defendant’s resort. Weitz, 2023 WL 2328365, at *1. Plaintiff’s claim was premised upon Defendant’s use of an automated system to send the text message without express written consent. Id.
Defendant moved to dismiss the Complaint, asserting constitutional challenges to the FTSA. Id. Though Defendant did not raise the issue, the Court focused its analysis on whether Plaintiff had Article III standing, considering whether the “Complaint’s allegation that he received one unwanted text message advertising a vacation package at Defendant’s resort describe[d] a concrete injury.”. Id. at *3. The Court referenced recent Eleventh Circuit decisions that have held the “mere receipt of text messages in violation of a statute” is not a concrete injury for purposes of establishing Article III standing. Id. (citing Salcedo v. Hanna, 936 F.3d 1162, 1172-73 (11th Cir. 2019); Drazen v. Pinto, 41 F.4th 1354, 1362 (11th Cir. 2022)). The Court applied these holdings to the FTSA context because the “requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Id. (quoting Salcedo, 936 F.3d at 1167).
The Court found that Plaintiff’s allegations amounted to no more than “a bare statutory violation.” Id. He alleged receiving only one text message, but asserted no harms stemming from it and instead alleged mere conclusory damages, inconvenience, and annoyance. Id. Because Plaintiff failed to demonstrate a concrete injury, he lacked Article III standing and the Court therefore lacked subject matter jurisdiction over the matter. Id. at *3-4. Accordingly, the Court declined to consider the sufficiency of Plaintiff’s allegations or Defendant’s constitutional concerns, and it remanded the case to state court. Id. at *4.
Since the FTSA’s passage in July 2021, there has been an increase in lawsuits, particularly because of the statute’s unclear restrictions on certain types of sales calls and text messages to Florida residents, its stiffer penalties of up to $1,500 per violative call or text, and its rejection of Facebook Inc. v. Duguid, 141 S. Ct. 1163 (2021).
Notably, the Eleventh Circuit recently agreed to re-evaluate the Salcedo ruling and reconsider whether a single, unsolicited text message does not confer standing to sue under the TCPA. See Drazen et al. v. GoDaddy.com LLC, No. 21-10199 (11th Cir.). In Drazen, a Florida resident sued defendant GoDaddy in the Southern District of Alabama for the alleged use of an ATDS to send unwanted calls and text messages promoting its products. The lower court preliminarily approved a settlement, but disagreements arose on appeal to the Eleventh Circuit, and the case was later remanded to consider whether some class members had Article III standing to sue, even though neither party had briefed the issue. Although the lower court approved the class and found that members living outside the Eleventh Circuit still had viable claims in their own circuits, the Eleventh Circuit disagreed and held every class member must have Article III standing to recover individual damages. Thus, this recent development will impact future TCPA and FTSA claims.
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