May 23, 2022

Volume XII, Number 143


May 20, 2022

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Litigation Under Florida’s Mini TCPA Begins to Heat Up

Since going into effect on July 1, 2021, the plaintiffs’ bar has wasted no time in seeking to test the limits of Florida’s mini-TCPA. In particular, one law firm active in prosecuting TCPA claims has filed at least half a dozen class action complaints under the Florida Telephone Solicitation Act, Fla. Stat. § 501.059:

  1. Errante v. Blades Direct, LLC, No. 2021-020069-CA-01 (Fla. Cir. Ct. Aug. 30, 2021)

  2. Gonzalez v. Streetsrider Int’l, No. 2021-019505-CA-01 (Fla. Cir. Ct. Aug. 19, 2021)

  3. Garcia-Cortez v. Prospect Home Finance, No. 2021-019504-CA-01 (Fla. Cir. Ct. Aug. 18, 2021)

  4. Patton v. Pizza Hut, LLC, No. 2021-018755-CA-01 (Fla. Cir. Ct. Aug. 4, 2021)

  5. Merl v. Dickey’s Barbecue Restaurants, Inc., No. 2021-018446-CA-01 (Fla. Cir. Ct. July 30, 2021)

  6. Cooper v. Batteries Plus, LLC, No. 2021-017128-CA-01 (Fla. Cir. Ct. July 13, 2021)

The complaints involve businesses of all stripes from all across the country. According to the respective complaints, Blades Direct is “a diamond tools supplier that carries a broad range of diamond blades and diamond cutting products”; Streetsrider, a manufacturer and seller of “indoor/outdoor elliptical bicycles,” based in Huntington Beach, California; Prospect Home Finance, a mortgage lender based in San Diego, California; Dickey’s Barbecue, a Dallas, Texas-based owner and operator of a national restaurant chain; and Batteries Plus, “one of the largest retailers of batteries and light bulbs in the country,” based in Hartland, Wisconsin.   

The complaints are notable in a few respects. First, all of the cases involve text messages, which may be permissible to send without prior express written consent in many circumstances under the TCPA but likely require prior express written consent under Florida’s vague and expansive autodialer definition. The application of these different standards present a potential trap for companies far outside of Florida that communicate with Florida residents. As a result, in each case the plaintiff alleges merely that the defendant transmitted the telephonic sales calls using “a computer software system that automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” Second, in each case, the plaintiff seeks an injunction and statutory damages on behalf of himself or herself and the class members, who are defined as “[a]ll persons in the United States who, (1) were sent a telephonic sales call regarding Defendant’s goods and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff.” But the definition does not bother to exclude individuals that provided express written consent. Third, in each case the plaintiff alleges that he or she “received such [telephonic sales] calls while residing in and physically present in Florida, thus appearing to sidestep the Commerce Clause issues we mentioned here.

Whether these cases are meritorious remains to be seen, but we will continue monitoring to see what effect, if any, they each have in developing Florida’s still nascent TCPA law. In the interim, the pace at which these cases are being filed makes clear that businesses that make telephonic sales calls, send text messages, or direct-to-voicemail transmissions, either with an autodialer or for the purpose of playing a recorded message to a Florida consumer or to a phone with a Florida-based area code, need to ensure their practices take this Florida law into consideration to avoid becoming a litigation target.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 252

About this Author

Dwayne Sam Communications Attorney Womble Bond Dickinson Law Firm
Of Counsel

Dwayne represents clients in complex proceedings concerning communications law, constitutional issues, the interpretation and enforcement of federal statutes, and administrative law.  As an experienced advocate, Dwayne regularly practices before federal agencies, federal appellate and district courts, and the Supreme Court of the United States.

In addition to his legal practice, Dwayne serves as an adjunct professor at William & Mary Law School where he co-directs the Appellate and Supreme Court Clinic. The Clinic focuses on First Amendment (free speech and religion) and Fourth...