Comprehensive tort reform legislation which will serve to curtail the frivolous litigation against business in Florida seeking to communicate with subscribing customers was passed by the Florida legislature on May 2, 2023. The amendment, House Bill 761, was presented to Governor Ron DeSantis on May 16, 2023. The Governor has until May 31, 2023 to take action. If not signed by May 31, 2023, HB 761 will become law without the Governor signing. HB 761 will take effect immediately upon becoming law and applies to causes of action filed thereafter and putative classes not yet certified.
This legislation is of particular relevance to lawsuits against companies that send text messages to their consumers. 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. During the April 25, 2023, House of Representatives debate on HB-761, sponsor Rep. Tom Fabricio explained “This bill has two big goals, the first goal is to definitely protect consumer protections with regard to the unsolicited phone calls but the other goal of the bill which is incredibly important to consumers as well has to do with the immense amount of litigation that has spawned because of the current version of the statute that we have in place.”
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 Telephone Consumer Protection Act (“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.
"True spam, which is what we should be stopping, is where an illegitimate business is contacting somebody who has no business relationship with that consumer," Buese told the Florida Senate Committee on Rules on April 24. "None of the true spammers are being sued because when you get a text message from a spammer, it doesn't include their contact information. When you get a text message from a business you signed up to get a text message from, it includes their contact information. The amendment strikes the right balance. It punishes the true unsolicited text messages and calls while stopping the abuse of litigation tactics against Florida's businesses."
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.
Senator Yarborough, the Sponsor of an identical senate bill stated during testimony in the Senate Committee on Rules, provided that the “amendment has three parts, it provides that consent is given through a signature which is either an actual signature or another affirmative act that demonstrates express consent, clarifies precisely what steps can be taken to revoke consent and also provides a safe harbor for compliance which was based on input I received from stakeholders on both sides and ensures these clarifications go in effect upon the bill becoming the law.” As Yarborough noted “[u]nfortunately, the prior legislation captured some calls that are actually solicited by consumers meaning that well meaning business were being sued for things that we did not intend to be within the scope of the law. To that end Senate Bill 1308 prohibits unsolicited calls, clarifies how an individual consents to a solicitation and provides direction to consumers who wish to revoke such consent.”
What to Expect
For now, interested parties can only wait and see when and whether Florida Governor Ron DeSantis will sign the bill into law. 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 messages. 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.
