Nobody looks at the big picture these days, it seems.

One of the best (only good) things about the TCPA is that attorney’s fees are NOT available to a Plaintiff. But some state statutes–including the FTSA–include an attorney’s fees clause that may, or may not, apply.

While traditional thinking is that a Defendant would NOT want to see attorney’s fees enabled in these cases–that creates even more risk and leverage for a Plaintiff–at least one Defendant thought they’d go the opposite route and argue in FAVOR of a fee award.

It happened. And luckily, they lost. But still…

For the uninitiated, the Florida Telephone Solicitation Act (FTSA) was once the broadest anti-robocall law in the country. It was recently amended to have some of its teeth removed, but it is still plenty dangerous.

One of the key unanswered questions about the statute, however, was whether attorney’s fees were available to a prevailing party. The key provision notes that “[i]n any civil litigation resulting from a transaction involving a violation of this section, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his or her reasonable attorney’s fees and costs from the nonprevailing party.” Fla. Stat. § 501.059(11).

So that begs the question– if a Plaintiff sues, can they recover fees?

Now one would imagine that Defendants–who already face the risk of massive $500-$1,500.00 per call liability–would not want to also see a fee award available. But one Defendant–who prevailed at summary judgment–decided they would take the short anyway.

In Bales v. Bright Solar, 2023 WL 5726434 (M.D.FL. Aug. 15, 2023) the Court found a prevailing Defendant in an FTSA case is NOT entitled to attorneys fees unless the claim arose out of a “transaction” governed by the FTSA.

Backing up, the FTSA regulates both telemarketing CALLS and telemarketing TRANSACTIONS. And while a private right of action exists for both types of claims, the Bales court concluded that the use of the word “transaction” in the FTSA’s fees provision limited the availability of fees to only claims related to transactions.

More basic FTSA claims–like those challenging an autodialer was used without consent– are not claims related to “transactions” but merely clams related to calling. So no fees are available.

This is a GREAT ruling in the end–it assures that Plaintiff’s lawyers can’t use the threat of fees to extort even more damages from Defendants. But it is just shocking to me a Defendant would try to advance the position of the Plaintiff’s bar by urging fees are available (but how mad is the Plaintiff’s bar right now at Bales’ lawyer? ha)

A strange strange posture, but a good ruling nonetheless.