Well the Plaintiff’s bar is certainly back out and swinging.

Dozens of putative class actions have been filed in the last couple of weeks under either the TCPA or FTSA (or both.) Earlier this week I penned a quick article about Chipotle facing its first FTSA class action.

Well now everybody’s favorite manly ecommerce site–touchofmodern–is facing its own FTSA class action.

In the suit–which like the claim against Chipotle is brought in California–the Plaintiff Ethan Levine claims he received a text on November 12, 2022 that read:

Touch of Modern: Today Only – Get 15% Off Any 2 Items, 20%
Off 3 Items or more! Shop now: https://txts.ly/s7BeFg

Plaintiff alleges the text was sent using an autodialer under Florida’s broad law because:

Specifically, Defendant utilized an “automated system for the selection or dialing of telephone numbers” to transmit the subject text messages to Plaintiff’s 0979 Number because such messages were sent from telephone numbers used to message consumers en masse; because Defendant’s dialing equipment includes features substantially similar to a predictive dialer, inasmuch as it is capable of making numerous calls or texts simultaneously; and because the hardware and software used by Defendant to send such messages have the capacity to both select numbers to be dialed and to dial such numbers in an automated fashion.

And Plaintiff alleges the text he received was made without express written consent–which is required under the FTSA.

He seeks to represent a class of:

All persons in Florida who, at any time since July 1, 2021, received a telephonic sales call made by or on behalf of Defendant using the same type of equipment used to make telephonic sales calls to Plaintiff.

Per usual, this class is overly broad and uncertifiable because it does not take consent into account. It should be stricken and the pleadings stage in my opinion.

Either way, however, Touch of Modern now faces a large class action under the FTSA, which carries the same $500.00 per violation MINIMUM as the TCPA, plus potentially enables the recovery of attorneys fees. Not good.

Once again, the take away here is clear. Companies texting into Florida MUST MUST MUST be aware of the FTSA. Even if the texts are sent by an out of state company–you can be sued in California for texts sent to Florida area codes!