BOORITO: Wonderful wonderful Chipotle Sued in New FTSA Class Action

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:
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.”


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

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



  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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