I’ve been previewing for some time that the next big battleground is whether TCPA suits dismissed from federal court for lack of standing can yet be heard in state court.
Setting the stage, ever since Campbell Ewald TCPA defendants have wisely been leveraging Article III issues to challenge a plaintiff’s standing to pursue a case in federal court.
I, of course, earned the first dismissal of a TCPA suit in the nation on Article III grounds following CE in Stoops. And I also earned the first prudential standing dismissal in a TCPA suit, which rendered the claim unjudiciable in state court.
Yeah, I know, impressive stuff. But that’s what I’m here for.
So in the years since Stoops, TCPA defendants have mostly been unable to capitalize on my early success. Instead most TCPA defendants have lost their Article III challenges, and even when they win they end up litigating in state court–a worse forum most of the time. Indeed, some Plaintiff’s lawyers have take to affirmatively seeking remand of federal suits on jurisdictional grounds–arguing to the federal court they were not harmed–only to pursue the claim in state court.
As of last Thursday, the defense bar had come up completely empty in their efforts to avoid litigating TCPA suits in state court on standing grounds. Every remanded case ended up being stuck in state court.
Leave it to my team to again score a first in the nation standing result.
On top of my big win in Stoops, you’ll recall that just last year the Czarina obtained a first-in-the-nation result on standing–a determination that an emailed fax causes no harm.
Well now, the Archduke and the Empress–those two are good–have topped that win with one of the biggest TCPA standing victories of all time–and a real watershed moment for folks litigating TCPA (and perhaps mini-TCPA) suits in the state of Florida.
In Toney v Advantage Chrysler, Case No. 2021-CA-002428 (Fl. Feb. 24, 2022), the Court held that a TCPA class action that had been thrown out of federal court on Article III grounds could not be litigated in state court either.
The Toney court reasoned that in Florida state court–just like in federal court– there must be a real injury occasioned by the challenged conduct. It refined the rule thusly: “[A]n actual injury includes an economic injury for which the relief sought will grant redress,” and it “must be distinct and palpable, not abstract or hypothetical.”
But the Court found the Plaintiff had failed to demonstrate any such actual injury where he had received a single ringless voicemail:
Here, Plaintiff alleges an injury that is purely legal – that is, Defendant violated the TCPA by not acquiring the requisite consent to make marketing calls to Plaintiff. Specifically, Plaintiff alleges that he, and others like him, received a single, ringless (as confirmed at the hearing on February 2, 2022) prerecorded voicemail message on a cellular phone, which he claims resulted in actual harm, including invasion of his privacy, aggravation, and annoyance. The Court fails to see how Plaintiff has demonstrated any actual, redressable injury that resulted from a single, ringless call that resulted in a voicemail. This is not an injury that is distinct or palpable, as contemplated to demonstrate standing.
B to the O to the O to the Yah.
So the Court dismissed a state court TCPA suit for lack of an actual injury, and established–for the first time–that a TCPA suit cannot proceed in state Court in Florida without a real life tangible injury.
I cannot say enough about how important this ruling is. FINALLY TCPA callers have an avenue to disrupt suits on standing grounds at both the state and the federal level. And I am SO PROUD that it was my team that brought it to you.
Big round of applause for the Empress and the Archduke everyone. They really raised the bar here and gave everyone a new fighting chance.
Oh–and a big congrats to the client here, who had the bravery and determination to fight this fight in two forums and come up with the ultimate “W.”
Hip hip hooray!!!
Order here: HUGE STANDING ORDER
More stupidity from the 11th Circuit and FL. A judge using their position to subvert the purpose of the private right of action under the TCPA. Nice. How would anyone be able to enforce the PRA if the typical harms suffered by unwanted calls don’t give rise to standing? Absurd. Hope there is an appeal and the decision is overturned. In any case good luck replicating that anywhere outside FL, especially in the 9th circuit.
Not just that… first needing more than one call/text/RVM to establish standing, when the PRA under 227(b) requires only one call, and now needing ECONOMIC injury??? LOLOLOL. These FL judges need to get checked.
Defendant: “Your Honor, they say that my conduct was obnoxious, annoying, and rude. If I face no consequences, others will be emboldened to behave in the same way. However, it was only a momentary inconvenience for those who experienced it. It ruined just a small part of their day, and there was no pecuniary loss. Therefore, I am asking you to cast aside the statute and ignore the clear intent of the legislature. Please refuse to hear this case.”
Judge: “Sounds like a good argument to me. Dismissed for lack of jurisdiction.”
Prosecutor: “Great. Now we’re going to have *everyone* taking off their clothes at Dairy Queen.”
Judge: “So that’s what this was about? Whoops, I thought this was the TCPA docket. I get to make up all kinds of crazy rules on that day.”