On May 2, 2023, the Florida legislature passed HB 761, a tort reform bill that will serve to curtail the frivolous litigation against business in Florida seeking to communicate with subscribing customers. This legislation is of particular relevance to lawsuits against companies who send text messages to their customers. Effective July 1, 2021, the Florida Telephone Solicitation Act (“FTSA”) created a private right of action for consumers who receive unwanted calls and text messages. Class action cases surged in Florida after the amendments, and the statutory fines were significant: damages of $500 to $1,500 per call or text, plus costs and attorneys’ fees.
Recognizing the confusion created by the FTSA’s lack of clarity, state legislators introduced House Bill 761 and Senate Bill 1308. Alexis Buese, who co-leads Gunster’s Class Action Defense team was retained by the Florida Justice Reform Institute to provide critical testimony during the Legislative Session in support of the reforms.
Preceding Legislation
The FTSA is significantly more restrictive than the TCPA because it contains an overly broad definition of “autodialer” that looks at any system that either automatically dials or selects phone numbers to be dialed. On its face, the FTSA sweeps up click-to-dial systems as well as most workflow programs into its gambit — although that was never tested on a motion for summary judgment.
Critical Provisions and Implications of HB 761
HB 761 narrows the definition of an “auto-dialer” by changing the wording to “selection and dialing of telephone numbers.” The bill also creates a safe harbor for texts that allow recipients to reply “STOP” to text messages and requires a consumer to give 15 days-notice and an opportunity to cure before commencing suit. Significantly, HB 761 will apply to any FTSA suit that is a putative class action that has not already been certified.
What to Expect
The revisions to the FTSA, contained in HB 761, impose a number of significant impediments on frivolous litigation against businesses by consumers who signed up to receive text message. The law revamps the framework in Florida in several ways by (1) clarifying the type of system used, (2) requiring consumers to opt-out if they no longer wish to receive text messages, and (3) equipping companies with a defense to pending uncertified class actions.
YES! PLEASE SIGN ME UP TO RECEIVE EMAIL ALERTS FROM OTHER GUNSTER PRACTICE AREAS.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 260 attorneys and consultants, and over 270 committed professional staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.
