DICKEY’S BARBECUE HIT IN FLORIDA MINI-TCPA CLASS ACTION: Fourth of July Texts May Have Violated Statute That Went into Effect 3 Days Earlier

You have to love “gotcha” class actions.

Let’s say you have the misfortune of NOT following TCPAWorld and/or not having the great and powerful Squire Patton Boggs TCPA defense team on your side. Then you might not have even heard about the new Florida “mini-TCPA” until it was too late.

Case in probable point.

The good folks at Dickey’s Barbecue Restaurants–purveyor’s of fine slabs of slathered meat–are facing a suit under Fla. Stat. § 501.059, as amended by Senate Bill No. 1120.

As TCPAWorld readers know–and knew ahead of time–the bill became effective on July 1, 2021. Just in time to trigger liability for Fourth-of-July related messages like these:

My mouth is heavily watering right now.

But that’s not the point. These messages were sent just a handful of days into the new Florida mini-TCPA’s amended existence. And now Dickey’s is facing trouble.

In a new suit filed July 30, 2021 a consumer in Florida is suing Dickey’s claiming that these–and other–text messages violated the amended Florida robocall bill. Compaint here: Dickey’s Florida Suit

According to the Complaint the Plaintiff never provided express written consent to receive the messages and the messages were sent by a system that “automatically selected” the Plaintiff’s number. (Let’s hope the good folks at Dickey’s were using a human selection text platform!)

The class is focused on the use of a specific text platform–as these new Florida cases often will be:

All persons in Florida who, (1) were sent a telephonic sales call regarding Defendant’s goods and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff.

Notably the class is overly broad since it does not exclude individuals that provided express written consent. But we’ll see if the claim goes anywhere.

The suit against Dickey’s was filed by Manny Hiarldo–a guy who has been making a lot of noise in TCPAWorld recently. But he’s no longer alone in filing litigation under the Florida mini-TCPA.

Just yesterday–this complaint Identalwas filed in Florida, making the first state suit brought by Shamis & Gentile and Scott Edelsberg. Tip of the iceberg folks.

Obviously we’ll keep an eye on these filings as they come in.


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