iBig ruling out of Florida yesterday.
A federal district judge ruled the recent amendments to the FTSA do apply retroactively to calls made prior to the amendment. Thus any action involving text messages that was not certified prior to the date the amendment passed– May, 2023–is invalidated unless the Plaintiff can demonstrate such messages continued 15 days after a stop request.
This is a massive ruling that really guts most of the remaining FTSA claims based on text messages.
The case is German v. Mario’s Air Conditioning, 2024 WL 3028750 (M.D. Fl. June 17, 2024.) Here is the meat of the FTSA ruling:
In its motion, SEHS argues that because Plaintiff does not allege that she replied “STOP,” the amended FTSA bars her individual FTSA claim and the FTSA class action. The Florida Legislature recently amended the FTSA. See § 501.059(10)(c), F.S. Pursuant to this amendment, “a plaintiff must allege receiving at least one text message from an automated system within fifteen days after the plaintiff affirmatively replies ‘STOP’ to an unsolicited message.” Importantly, the amended FTSA applies “to any putative class action not certified on or before the effective date of this act,” which is May 25, 2023.
Because Plaintiff failed to certify this class action on or before May 25, 2023, the amended FTSA applies to Plaintiff’s individual claim and the class action. In her amended complaint, she fails to allege that she replied “STOP” to any unsolicited message and, based on the text message screenshots included in the amended complaint, she cannot do so in good faith. Plaintiff also fails to allege – and presumably cannot allege – that each member of the proposed class replied “STOP” to an unsolicited text. Therefore, Plaintiff’s proposed class fails to meet the pleading requirements of the amended FTSA, and the amended FTSA precludes Plaintiff’s individual claim and the class action.
The Court went on to reject the Plaintiff’s constitutional challenge to the amendment:
Plaintiff responds by challenging the constitutionality of the FTSA amendment. She contends that the FTSA’s amendment that permits some use of auto-dialers warrants strict scrutiny under the First Amendment because the statute “unconstitutionally favors speech based on content” by prioritizing debt collection and newspaper speech. She is incorrect. “Because the FTSA’s regulation of ‘telephonic sales calls’ targets commercial speech only, the statute warrants intermediate scrutiny, not strict scrutiny.” Pariseau v. Built USA, LLC, 619 F. Supp. 3d 1203, 1209 (M.D. Fla. 2022) (Merryday, J.). Moreover, the FTSA satisfies intermediate scrutiny because it advances Florida’s interest in protecting “residential privacy and tranquility” while leaving “open alternative channels for communication.” See id. Plaintiff’s argument that the FTSA is unconstitutionally vague also fails as the terms are sufficiently defined. See id.
The court’s analysis of the statute surviving content-based review is odd as the proper analysis here would turn on retroactivity. Perhaps Plaintiff did not raise the correct argument. Tough to say.
Regardless this is a big win for defendants in FTSA cases. Folks may recall that the FTSA was a massive driver of litigation when it was first passed a few years ago. The statute contained a massively broad autodialer definition and effectively barred marketing text messages in the state without a very high level of consent.
The new amendments gutted the autodialer definition and imposed a rigorous new “unsolicited” definition that suddenly converted Florida cell phones into a free range for marketers. The requirement of a stop followed by a 15 day forgiveness window only enhances the defenses of marketers–as shown in German.
There are parts of the FTSA that remain dangerous, however, so don’t sleep entirely on Florida.
