BOORITO: Wonderful wonderful Chipotle Sued in New FTSA Class Action

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The Florida mini-TCPA continues to take its toll on corporate America.

The latest victim is one of my favorite restaurants–Chipotle!

The fresh Mex restaurant famous for upcharging for creamy guacamole–totally getting this for lunch–is fazing a robotext lawsuit arising under the Florida Telephone Solicitation Act. And, in a twist, the suit is brought in California.

In the new class action suit, a lady by the name of Sandra Diaz claims she was minding her own business last Halloween when she was tricked (not treated) by the following message:

Happy Boorito! Visit any U.S. Chipotle in costume & get a $6
entrée after 3pm. Rewards member exclusive. Info:
chipotle.com/rewards&utm_source=Vibes&utm_medium=SMS&
utm_campaign=10312022_Boorito.Txt HELP4help STOP2quit

Now, I will grant you that this is a bad pun but according to Plaintiff this text “invaded Plaintiff’s privacy and intruded upon Plaintiff’s seclusion upon receipt.”

Riiight…

Anyhoo, Plaintiff sues Chipotle–again, in California despite the fact that Plaintiff is a Florida resident suing under a Florida law–seeking to represent:

All persons in Florida who, at any time since July 1, 2021, received
a telephonic sales call made by or on behalf of Defendant using the
same type of equipment used to make telephonic sales calls to
Plaintiff.

And you will notice this class definition is not limited to individuals–like Plaintiff–who claim not to have consented to the texts. Every single person that ever signed up to receive alerts from Chipotle is in this class. So, yeah, it should definitely be stricken as overly broad.

In another interesting note, the case has been assigned to the Hon. David O. Carter. Judge Carter is an absolutely famous federal judge here in Southern California who is known to be tough as nails on both sides. I love litigating in front of the guy–tons of respect for how he runs his courtroom–but that is not universally true amongst litigators. So will be interesting to see where this thing goes.

More broadly, the suit demonstrates that FTSA claims continue to be EXTREMELY dangerous and impact folks from coast to coast. Unlike the federal TCPA–which has a narrow ATDS definition and largely does not apply to text messages–the state of Florida’s autodialer definition is exceptionally broad. And while text messages are a relatively safe channel of communication under federal law, the use of promtional text messages–such as text club engagements–are driving a huge number of claims brought under the Florida mini-TCPA. this is just the latest example.

And remember–just because you are not located in Florida does not make you immune to suit. These plaintiff’s lawyers are happy to sue you in your own home court for texts sent across the nation–just ask Chipotle!

You can read the complaint here: Chipotle FTSA Suit

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. Doesn’t the language of 501.059(8)(d) which states there is a REBUTTABLE PRESUMPTION (emphasis added) that a sales call made to Florida area code was made to a person in Florida, in of itself, make the certification of a class difficult since a defendant would have to research each call individually to determine if the call was actually made to someone within the boundaries of Florida? For instance I personally reside in Texas but have a cell phone with another state’s area code. I obtained the cell number when I resided in the non-Texas state and never obtained a “local” number. With free nationwide calling on the vast majority of the plans and the transportability of cell phones, each recipient of a call would require a search of records, let alone attempting to ascertain whether or not the individual was in Florida when the call was received. During election season, I receive a noticeable amount of calls from candidates from within the area code assigned to my number even though I do not live there and not allowed to vote in that state either. Just a thought.

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