Three Federal Courts Have Applied HB 761 Retroactively
Before HB 761’s effective date, one court called the constitutionality of the retroactivity provision into question. See Murray v. Riders Share, Inc., 2023 U.S. Dist. LEXIS 83388, at *3 n.2 (M.D. Fla. May 12, 2023) (“Retroactive application of a civil statute ordinarily transgresses constitutional limitations on legislative power ‘if the statute impairs vested rights, creates new obligations, or imposes new penalties.’”).
Since that dicta, however, three federal trial courts have fully considered the issue. Each one has applied HB 761 retroactively and dismissed class action complaints of plaintiffs who had not obtained class certification before HB 761’s effective date and had not alleged that they had replied “STOP” to any of the text messages they had received.
In Holton v. eXp Realty, LLC, a court in the U.S. District Court for the Middle District of Florida found that the plaintiff failed to allege (1) that he replied “STOP” to an unsolicited message or (2) that each member of his proposed class replied “STOP” to an unsolicited message. 2023 U.S. Dist. LEXIS 233394, at *3 (M.D. Fla. Dec. 28, 2023). Because the proposed class remained uncertified, the amended FTSA barred the class action for both the class and the class representative due to the failure to make the required allegations. Id. (“[The plaintiff] possesses no vested and inviolable right to represent a class,” and “the proposed class members hold no vested and inviolable right, free from lawfully imposed requirements, to coalesce and litigate as a class.”). The court declined to address the plaintiff’s individual claim, finding that, without class allegations, the Class Action Fairness Act (CAFA) no longer supported subject matter jurisdiction, requiring immediate remand. Id.
In Gadke v. New York Tribeca Group, a court in the U.S. District Court for the Eastern District of New York found that the amended FTSA applied to the plaintiff’s action because he had not moved for class certification. 2024 U.S. Dist. LEXIS 7879, at *3 (E.D.N.Y. Jan. 16, 2024). The complaint did not allege that the plaintiff had replied “STOP” to any of the messages that he received, nor did any of the screenshots in the complaint show a “STOP” message. Id. at *4. In light of that, the court held that the plain language of HB 761 prevented the plaintiff from bringing an FTSA action for damages. Id. In contrast to Holton (which dismissed only the class claims and remanded the individual claims), Gadke dismissed the plaintiff’s individual claim for damages, even though jurisdiction had been based on CAFA. But the court declined to exercise supplemental jurisdiction over the claims for equitable and declaratory relief, which were not subject to the FTSA’s pre-suit notice provision.
In Germain v. Mario’s Air Conditioning & Heating, Inc., another court in the Middle District of Florida similarly found that the plaintiff had failed to allege that she replied “STOP” to any unsolicited message, and that she could not do so in good faith based on the text screenshots in her amended complaint. 2024 U.S. Dist. LEXIS 106777, at *8–10 (M.D. Fla. June 17, 2024). The court also found that the plaintiff had failed to allege that each member of the proposed class replied “STOP” to an unsolicited text. The court therefore held that the amended FTSA precluded the plaintiff’s individual claim and the class action.
Two State Courts Have Not Applied HB 761 Retroactively
Two Florida trial courts have reached the opposite result, however, finding that applying a pre-suit notice requirement retroactively to dismiss the named plaintiff’s case would violate the Florida Constitution’s due process clause.
In Smith v. Rocky Brands, Inc., the court held that it was “improper” to apply the FTSA’s pre-suit notice provision retroactively. 2023 Fla. Cir. LEXIS 1053, at *7–8 (14th Fla. Cir. Ct., Holmes Cnty. Sept. 12, 2023). The court relied, in part, on Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), in which the Florida Supreme Court held that the pre-suit notice requirement of Florida’s Motor Vehicle No-Fault Law was not procedural but substantive and therefore could not be applied retroactively. Id. at *8–10 (“[I]f a statute requiring pre-suit notice purported to subject to dismissal an action filed before the statute became effective, the statute would likely violate, among other things, the right of due process and access to the courts.”).
In Fiallo v. El Car Wash, LLC, the court also declined to apply the FTSA’s pre-suit notice provision retroactively. No. 2023-015782-CA-01 (11th Fla. Cir. Ct., Miami-Dade Cnty. Nov. 2, 2023). That court relied on Menendez, too, as well as American Optical Corp. v. Spiewak, 73 So. 3d 133 (Fla. 2011), in which the Florida Supreme Court held that the retroactive application of the Asbestos and Silica Compensation Fairness Act (which added a requirement for claimants to prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor) violated the Florida Constitution’s due process clause.
Florida State Courts Have Split on Standing
While federal and state courts are debating whether HB 761 should apply retroactively, Florida state courts are also addressing recent appellate decisions in Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201 (3d Fla. Dist. Ct. App. 2023); Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc); and Muccio v. Global Motivation, Inc., 2023 WL 5499968 (11th Cir. Aug. 25, 2023)—all of which concern whether the receipt of a single text message gives rise to standing under the FTSA or the TCPA.
In Pet Supermarket, Florida’s Court of Appeal for the Third District found that the plaintiff had not sufficiently alleged a concrete injury under the TCPA, holding that the single text that had “arguably” intruded upon his private space did not rise to the level of “outrageousness” required for an invasion of privacy. 360 So. 3d at 1207. The U.S. Court of Appeals for the Eleventh Circuit reached a different outcome, holding in Drazen that a single unwanted illegal text message was sufficient to establish a concrete injury under the TCPA. In Muccio, the Eleventh Circuit went further, holding that receipt of an unwanted text message causes a concrete injury sufficient for standing under the FTSA as well.
While the Eleventh Circuit’s decisions in Drazen and Muccio settled the issue in federal court, Florida’s state courts are still split about whether to follow either Pet Supermarket or Drazen/Muccio. Smith appears to be the first decision that tries to square those rulings. That case essentially disregarded Pet Supermarket, finding that Drazen and Muccio were more recent and thus more applicable (particularly at the pleading stage, as the Pet Supermarket opinion was issued on appeal of a class certification decision). The court in Fiallo reached a similar outcome, finding that Drazen and Muccio were more recent than Pet Supermarket and holding that the issue was more properly examined at the class certification or summary judgment stage. In light of these two trial court decisions, defendants in Florida state court may have more success with standing arguments at the class certification stage than at the pleading stage.
But another state court recently denied a motion for class certification, finding that it was bound by Pet Supermarket, that Pet Supermarket remained good law, and that arguments to the contrary should be raised before an appellate court. Leigue v. Everglades Coll. Inc., 2024 WL 306200 (11th Fla. Cir. Ct., Miami-Dade Cnty. Jan. 3, 2024).
Conclusion
It well may be that appellate decisions will harmonize the state and federal approaches to these issues. In the meantime, defendants invoking HB 761 retroactively may try to avoid due process arguments by moving to strike class allegations rather than moving to dismiss named plaintiffs’ claims. As the court stated in Holton, there is “no vested and inviolable right to represent a class,” and “proposed class members hold [no right] to coalesce and litigate as a class.” 2023 U.S. Dist. LEXIS 233394, at *3 (M.D. Fla. Dec. 28, 2023).
It is also possible that a Florida appellate court will square Drazen, Muccio, and Pet Supermarket, and either follow Eleventh Circuit precedent or clarify that standing under the Florida Constitution requires something more than Article III. Until then, however, defendants in Florida state court may have more success with standing arguments at the class certification stage than at the pleading stage.
