A new Florida law that aims to protect consumers from unwanted sales calls and text messages has already prompted a series of class-action lawsuits, raising concerns that the new law is creating a new venue for civil litigation.
Senate Bill 1120, which became law on July 1, allows consumers to sue businesses when firms make sales calls or send text messages using an automated dialer – without the express written agreement of the recipient. Plaintiffs are allowed to recover either $500 or their actual monetary damages, in addition to attorney fees.
In addition, courts can triple the damages award if the defendant’s action is considered willful, according to an analysis of the bill by the Florida Senate.
Attorney Patrick Doran
Florida’s new law is similar to the federal Telephone Consumer Protection Act (TCPA) but offers a vague definition of an automated telephone dialing system, according to Patrick Doran, counsel for Buchanan, Ingersoll & Rooney P.C., which has an office in Miami.
“I’ve seen seven class actions that have been brought into the state courts of Florida under this new law,” Doran told the Florida Record. “... The firms bringing these cases are firms that are well recognized in the (federal) TCPA space.”
Four of the class actions, including one involving Wisconsin-based Batteries Plus LLC, have been dismissed, suggesting that settlements have occurred in some of the cases, he said. Typically, the class actions that have been filed argue the business communications have caused harm to class members, including annoyance, nuisance and privacy invasions.
Doran expects more of these types of lawsuits will be filed under the new Florida law, but not by law firms that are inexperienced in telephone consumer protection cases.
“These are not new entrants into the marketplace of plaintiffs’ class actions,” he said. “These are experienced firms who have quickly adapted to this new law and have been filing these suits.”
There are a couple of things businesses can do to avoid getting hit with a civil lawsuit based on the Florida law, according to Doran.
“"What companies should be doing is before they send text messages to anyone, they need to have prior express, written consent for the recipient to get the text message,” he said. “... The key is to make sure marketing campaigns don't start until they've got prior written consent."
Businesses could also consider using marketing technology that requires human or manual intervention and offer simple ways for consumers to opt out of receiving messages, according to Doran.