Wave of class action lawsuits aimed at marketing to Florida | Adams & Rees Law Firm, Florida

Wave of class action lawsuits aimed at marketing to Florida

Is your business at risk?

With the surge in telemarketing class action lawsuits in 2022, businesses should be increasingly concerned about their practices and procedures for marketing by phone or text to Florida area codes. Most of the recent allegations stem from recent changes to the Florida Telemarketing Act, which went into effect in July 2021.

The FTSA was signed during the pandemic and apparently received little attention from businesses and marketers promoting their products and services to Florida. Similarly, there has been little litigation activity under the new law. However, 2022 will be the year that consumer attorneys and their clients rapidly turn their attention to his FTSA.

Today, class action lawsuits are filed daily against the largest blockbuster retailers, coupon clubs, medispas, and virtually every other company that tells Florida residents about their products and services.

Violating the FTSA can result in fines ranging from $500 to $1,500 per call or text, in addition to legal fees and costs liability. Millions of calls have been made since 2021, and companies currently being sued under the FTSA face the risk of devastating class action lawsuits.

The FTSA contains various restrictions related to communications with Florida residents regarding a company’s products and services. However, at the center of recent lawsuits is the use of telephone sales calls involving automated systems for selecting or dialing phone numbers or playing recorded messages to numbers without prior express written consent. or certain limitations related to composing text messages. of the called party.

This particular limit has two key elements.

• First, the term “automated system” is broadly defined by the FTSA as a system that simply automatically dials or selects a number to call. Since the U.S. Supreme Court limited the definition of “automated telephone dialing system” under the Federal Telephone Consumer Protection Act (TCPA) in April 2021, many businesses, lead generators, and marketing vendors have decided that their telemarketing activities I made the general conclusion that it is “TCPA compliant”. Based on established practice.Indeed, the TCPA litigation after clout Facebook Decline in decision-making by more than 30% in just 6 months of opinion[1]. But Facebook The decision is limited to not being applicable to the FTSA, as there is no statutory definition similar to the TCPA. This open question – what is an automated system under the FTSA? – has opened the door to those lawsuits that businesses believed were no longer a risk.
• Second, the FTSA requires “express written consent” to comply with this limitation. The term is defined by law and requires a written agreement to have certain substantive content and, most importantly, to be “signed by the called party”. Merely providing a mobile number as part of a referral or basic signup is likely not compliant with these requirements and could put the company at significant risk.

Since most cases are still in their early stages, businesses are actively working to understand the FTSA and adhere to specific restrictions on texting and calling to Florida area codes, unlike TCPA compliance restrictions. is needed. By implementing steps to ensure compliance with the FTSA, you can reduce your risk of litigation. Below are some action items companies can take now to act proactively.

• Please consult your law firm or internal legal department regarding the appropriate procedures for obtaining express written consent and modify your current procedures accordingly.
• Take appropriate time and steps to ensure prior express written consent prior to any communication as part of customer contact and lead generation.
• Audit third-party vendors and lead generators to ensure that customer consent is properly obtained and archived.
• Evaluate telemarketing policies and procedures for consistency with consent withdrawal records and internal do-not-call list policies and procedures.
• As part of your vendor agreement, certify that your vendor is compliant with both the FTSA and TCPA.

We will continue to monitor the outcome of the Florida incident regarding the FTSA and will keep you informed of future developments.

[1] See US Chamber of Commerce Law Reform Institute.