Courts continue to grapple with issues surrounding Florida’s Telephone Solicitation Act, including what types of claims are sufficient to allege a concrete injury in fact to establish standing under Article III.

In December, the saga continued, with a federal court in Florida finding that the plaintiff did not adequately allege injury despite receiving five unsolicited text messages from the defendant between November 2020 and July 2021. In Muccio v. Global Motivation, Inc., the plaintiff filed a five-count class action complaint alleging violations of the Florida Telephone Solicitation Act (FTSA) and the Telephone Consumer Protection Act (TCPA). The defendant filed a motion to dismiss, arguing that the plaintiff failed to allege that she suffered an “injury in fact” sufficient to give rise to Article III standing.

The court agreed with the defendant, citing the framework set forth by the Eleventh Circuit in Salcedo v. Hanna, which found that the receipt of a single unsolicited text message does not give rise to Article III standing in a TCPA class action. Applying Salcedo, the court found that there were no allegations of “financial loss or other pecuniary harm,” nor did plaintiff allege he was unable to use his phone for other functions because of the unwanted messages, or that his cell phone was searched, disposed of, or seized for any length of time.

In addition, the receipt of the text message was also not alleged to be “highly offensive” or constitute “objectively intense inference.” Instead, the plaintiff only alleged five unwanted text messages with a “bare statutory violation” as well as “generalized allegations of inconvenience, invasion of privacy, aggravation, annoyance.” This, the court said, was not enough to establish concrete harm under Article III.

Although the plaintiff attempted to distinguish his claim from Salcedo by noting the number of text messages received, the court did not agree, noting that “there is no minimum quantitative limit required to show injury; rather, the focus is on the qualitative nature of the injury, regardless of how small the injury may be.’” The court granted the motion to dismiss without prejudice.

The court also cited to a September decision from the Southern District of Florida, Frater v. Lend Smart Mortgage,  in which the court dismissed claims under the FTSA where the plaintiff received two text messages and alleged that she was”bombarded” with similar texts over a year-long period. In that case,the court held that the Article III Standing requirements apply to FTSA claims in the same way that they apply to TCPA claims.

Thus, while the plaintiff alleged generally that she and the putative class members suffered “harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance, and wasted time,” without further elaboration, the court held that the plaintiff failed to plead harms “qualitative different” from those alleged in Salcedo. Last week, the plaintiff in Muccio  filed a notice of appeal, asking the Eleventh Circuit to weigh in on the issue. It is unclear how the Eleventh Circuit will come out, how other courts will address injury in telemarketing lawsuits, or where the line will be drawn. Stay tuned.