Plaintiff’s counsel in Florida have seized upon Florida’s Telephone Solicitation Act (“FTSA”), § 501.059, Florida Statutes to sue companies that send text messages or phone calls to solicit sales to phone numbers on a computer-generated random basis. These actions are invariably filed as putative class actions, thus begging the question – are such claims “class-actionable”?
As I am in the process of defending a number of such claims, my viewpoint is understandably biased against any class determination of such claims. Nevertheless, I would submit that such claims for statutory damages on behalf of a class of similarly situated individuals inherently conflicts with § 501.509’s plain language as to who may bring an action for violation of the statute.
Section 501.509(10)(a) contains specific language that enables a statutorily defined “called party” to obtain relief under the statute if that called party is “aggrieved”. Significantly however, that statutory term, in and of itself, creates an individualized issue that will defeat the requirement of “predominance” because it would require the Court to conduct a separate inquiry, if not a trial, with regard to every putative class member prior to obtaining awarding relief under the statute. This consideration precludes Rule 1.220 certification of the (b)(2) and (b)(3) classes typically identified in FTSA class action complaints.
Additionally, although most, if not all, FTSA class action complaints have been brought in Circuit Court, should the Circuit Court acknowledge that such claims cannot be maintained on a class action basis, there would be no set of facts or proofs that would entitle the class representative plaintiff to relief that falls within the subject-matter jurisdiction of the circuit court. Accordingly, the class representative plaintiff’s individual claim for the statutory damages, exclusive of costs, interest, and attorney’s fees, would have to be transferred to the county court for the county where it was filed.
The Statutory Element of Being “Aggrieved” Raises An Individualized Issue Precluding Class Certification.
The FTSA class action complaints seek statutory remedies that may be available to a “called party”[1] under § 501.059(10(a). Problematically, the plain language of that section specifically requires a that an action under § 501.059(10)(a) be predicated on the fact that a “called party” was “aggrieved” by the alleged violation[2], i.e., there is no cause of action or remedy available to a party simply because they fit the definition of a “called party”, supra. It is the legislature’s use of the word “aggrieved” as a predicate or condition to the right.
of a “called party” to bring an action for recovery of actual or statutory damages and obtaining an injunction that precludes such class representative plaintiffs from presenting a viable basis for relief on behalf of the putative class he or she seeks to have certified.
Section 501.059 requires that a “called party” must do significantly more than demonstrate that he, she, or it received a “telephonic sales call”[1] in order to “bring an action” under § 501.059. That “called party” must also demonstrate that they were “aggrieved” by “a violation of this section.” The legislature has clearly and plainly required something more than just the occurrence of an event, in the form of an electrical connection between phones. Otherwise, the call merely has the potential to lead to damage or injury to a “called party.”
“The ‘plain meaning of the statute is always the starting point in statutory interpretation.’” Alachua County v. Watson, 2022 WL 247086, *6 (Fla. January 27, 2022); Lacayo v. Versailles Gardens I Condominium Association, Inc., 325 So. 3d 295, 297 (Fla. 3d DCA 2021). Florida courts are “bound by the plain meaning of the text of the provisions of the PIP statute” and:
We thus are guided by “what Justice Thomas has described as the ‘one, cardinal canon [of construction] before all others’—that is, we ‘presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Page v. Deutsche Bank Tr. Co. Americas, 308 So. 3d 953, 958 (Fla. 2020) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)
MRI Associates of Tampa, Inc. v. State Farm Mutual Automobile Insurance Company, 2021 WL 5832298, *5 (Fla. December 9, 2021) (emphasis added). Further, “If the language of the statute is clear, ‘the statute is given its plain meaning, and the court does not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction.’ (quoting Halifax Hosp. Med. Ctr. v. State, 278 So. 3d 545, 547 (Fla. 2019).” Steiger v. State, 328 So. 3d 926, 930 (Fla. 2021) citing State v. Maisonet-Maldonado, 308 So. 3d 63, 68 (Fla. 2020); State v. McKenzie, 2021 WL 4314052, *8 (Fla. September 23, 2021). Finally, the Third District Court of Appeal has plainly stated that:
Our duty in construing statutes is equally well established: we look first to the statute’s plain meaning, and must initially be guided by the principle that if the wording of a statute is unambiguous, we should not go beyond the clear wording and plain meaning of the statute to give it a different meaning. City of Clearwater, 863 So. 2d at 153,; Streeter v. Sullivan, 509 So. 2d 268 (Fla. 1987). “When the words of a statute are plain and unambiguous and convey a definite meaning, courts have no occasion to resort to rules of construction—they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996).
City of Miami Beach v. Miami New Times, LLC, 314 So. 3d 562, 566-67 (Fla. 3d DCA 2020 (emphasis added).
Here the statute does not provide the right to bring an action to a “called party” simply because they received a call. Instead, a “called party” “may bring an action” if the alleged violation has “aggrieved” them. § 501.059(10)(a), Fla. Stat. (emphasis added). It is therefore incumbent upon the Courts interpreting the statute to apply the statute to each putative class member as a “called party”, but only allow them to be class members if they affirmatively demonstrate that they individually have been “aggrieved” within the plain meaning of that word.
Such determination creates an individual issue that precludes class certification because the class representative plaintiff, separate from his subjective feelings at the time he received the call, simply cannot validly assert that another party was, in fact, aggrieved so as to be able to bring the action for themself.[4] The Supreme Court of Florida has defined the burden placed on a putative class representative to establish that common questions predominate over individual issues in a class action. In Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011), the Court stated:
The methodology employed by a trial court in determining whether class claims predominate over individual claims involves a proof-based inquiry. More specifically, a class representative establishes predominance if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact. See Soria, 33 So. 3d at 771. A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members.
Id. at 112. See also Miami Automotive Retail, Inc. v. Baldwin, 97 So. 3d 846, 857 and 858 (Fla. 3d DCA 2012) (“. . . under Florida law, the predominance requirement ‘is not satisfied when the claims involve factual determinations which are unique to each plaintiff’” quoting Volkswagen of America, Inc. v. Sugarman, 909 So. 2d 923, 924 (Fla. 3d DCA 2005); “Where the facts necessary to determine liability are based upon the defendant’s interactions with specific plaintiffs, individual issues predominate over class-wide proof.”) (Emphasis added). Applying the facts alleged in the FTSA class action complaint with the language of § 501.059(10)(a), it is not possible for the class representative plaintiff to “necessarily” prove the requirement of being “aggrieved” for the class members by simply proving how he was “aggrieved.” The class representative plaintiff cannot demonstrate a “reasonable methodology” for generally proving being “aggrieved” with “class-wide impact.” Id.
“When considering the meaning of terms used in a statute, this Court looks first to the terms’ ordinary definitions, … definitions [that] may be derived from dictionaries.” Raymond James Financial Services, Inc. v. Phillips, 126 So. 3d 186, 190 (Fla. 2013) quoting Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209, 214 (Fla. 2009). The plain meaning of “aggrieved” can be determined by resort to both legal and English language dictionaries. Black’s Law Dictionary defines “aggrieved” as:
aggrieved adj. (16c) 1. (Of a person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights. 2. (Of a person) angry or sad on grounds of perceived unfair treatment.[5]
Additionally, the American Heritage Dictionary, relied upon by the Supreme Court of Florida[1], defines “aggrieved” as:
Aggrieved
adj.
- Feeling distress or affliction.
- Treated wrongfully; offended.
- Law Treated unjustly, as by denial of or infringement upon one’s legal rights.[7]
Similarly, The Merriam-Webster Dictionary, founded in 1828 and also relied upon by the Supreme Court of Florida[1], defines “aggrieved” as:
Definition of aggrieved
- : troubled or distressed in spirit
- a : suffering from an infringement or denial of legal rights
- b : showing or expressing grief, injury, or offense[9]
Therefore, in order to be “aggrieved” by something, there must be a demonstrable mental and/or physical reaction to the event itself, e.g. harm, anger, sadness, distress, affliction, trouble, suffering, grief, injury, or offense. By way of example,
if a “called party” views the words “Unknown Caller”, “Spam Risk” or “Telemarketer” on their phone’s display, that event may elicit a range of responses, not all of which rise to the level of being “aggrieved”; or it may elicit no response whatsoever. It is, in its simplest form, a wholly subjective response that cannot be assigned to the wide range of individuals who may receive a call. The “called party’s” response may, for example, be to ignore the call altogether; sigh heavily; curse under his or her breath; call out to their spouse or significant other that they got another one of “those calls”; or throw their phone against a wall in a fit of anger, none of which (as demonstrated below) rise to the level of being “aggrieved” and therefore establish the actionable predicate under § 501.059(10)(a).
The mere receipt of an incoming phone call cannot by itself be actionable under that statute without some resulting form of injury that causes the recipient of the call to become “aggrieved.” Interpretation and application of the clear language of the § 501.059(10)(a) as providing for a right of action simply through connection of a call to a phone, is just a legal “bridge too far.” It may as well be actionable to make the honking of a car horn directed towards another driver obliviously sitting at a green traffic signal while they check their email on their mobile phone. These days, it’s not impossible that this latter scenario occurs more frequently than the former.
Defending against such a FTSA claim, I would advocate filing a motion to strike the class allegations because Florida courts have recognized that where a failed putative class claim that may be otherwise prosecuted on an individual basis, the appropriate remedy is the striking of the class allegations. See Florida Department of Transportation v. Tropical Trailer Leasing, LLC, 308 So. 3d 242 (Fla. 1st DCA 2020). There, the trial court struck the class allegations of the plaintiff/putative class representative, Tropical Trailer’s, second amended complaint. In affirming that ruling, the First District noted:
Florida Rule of Civil Procedure 1.140(f) states, “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” However, where a complaint states a cause of action but is not maintainable as a class action, the portions of the complaint relating to a class action should be stricken. See Harrell v. Hess Oil & Chem. Corp., 287 So. 2d 291, 294 (Fla. 1973) (citing Balbontin v. Porias, 215 So. 2d 732 (Fla. 1968)) (noting that where a complaint as a whole states a cause of action the remaining parts could be considered as surplusage); see Equitable Life Assurance Soc’y of U.S. v. Fuller, 275 So. 2d 568, 569 (Fla. 3d DCA 1973) (“A more appropriate motion to have been filed by the defendant would have been one to strike from the complaint the matter relating to the class action.”).
Id. at 248 (emphasis added). Notably, the trial court struck the class allegations because they were “internally inconsistent”, very much the same situation created by the putative class representative plaintiffs in their FTSA complaints by failing to consider the showing of being “aggrieved” necessary to bringing class action under the statute. See also Stabinski v. Pirelli Tire Corporation, 371 So. 2d 679 (Fla. 3d DCA 1979) (Class action dismissed with prejudice because plaintiff/putative class representative’s claim for breach of an express warranty did not apply to the tires that were on his automobile). The Supreme Court of Florida has also weighed in on this procedural remedy by holding that an action that failed as a class action should not be dismissed until the trial court has determined that the plaintiff’s individual claim could not proceed on its own. See Evans v. St. Regis Paper Company, 287 So. 2d 296 (Fla. 1979). Cf. Estate of Bobinger v. The Deltona Corporation, 563 So. 2d 739 (Fla. 2d DCA 1990) where the dismissal of a class action complaint was reversed because the deficiencies in the complaint relating to the fraud alleged were capable of correction by amendment. Such is not the case here.
Accordingly, until definitive rulings establish that FTSA claims may be maintained on a class action basis I would encourage all defendants to challenge whether such claims may be advanced on a class-wide basis.
April 20, 2022
David H. Charlip, B.C.S., Esq.
CHARLIP LAW GROUP, LC
999 Brickell Avenue, Suite 840
Miami, Florida 33131
Telephone: (305) 354-9313
Fax: (305) 354-9314
dcharlip@charliplawgroup.com
[1] Section 501.059(1)(a) defines a “Called Party” as “a person who is the regular user of the telephone number that receives a telephonic sales call. Accordingly, the statutory cause of action appears to be limited to a single individual.
[2] “(10)(a) A called party who is aggrieved by a violation of this section may bring an action to:
- Enjoin such violation.
- Recover actual damages or $500, whichever is greater.” (emphasis added).
[3] § 501.059(1)(j) defines a “Telephonic sales call” as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”
[4] This conclusion is effectively demonstrated from the allegations of the typical FTSA class action complaint. The complaint usually asserts that the calls allegedly “caused . . . harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance.” These highly subjective feelings and responses to a call are surely within the ambit of the class representative plaintiff’s individual experience, but there is no way that such plaintiff can establish this fact of causality, mandatory to certification of a class, without bringing every putative class member before the Court to verbalize their individual mental or physical reaction to the call giving rise to their being “aggrieved.”
[5] Aggrieved, Black’s Law Dictionary (11th ed. 2019). (Emphasis added).
[6] See In re Amendment to Florida Rule of Civil Procedure 1.280, 324 So. 3d 459 (Mem.), 462 (Fla. August 26, 2021); In re Amendment to Rule Regulating the Florida Bar 6-10.3, 2021 WL 5992537, *1 (Fla. December 16, 2021).
[7] Aggrieved, American Heritage Dictionary (5th ed. 2011). (Emphasis added).
[8] See Furst v. DeFrances, 2021 WL 3923409, *13 (Fla. September 2, 2021).
[9] Aggrieved, The Merriam-Webster Collegiate Dictionary (11th ed. 2014). (Emphasis added).
