Gadke v. New York Tribeca Group: The 2023 Florida Telephone Solicitation Act Amendment Requires a STOP Reply, Even in Pending Class Actions

Background

The plaintiff, a Florida resident, registered his cell phone number on the National Do Not Call Registry on January 6, 2022. On January 26 and February 10, 2022, he received unsolicited texts from the defendant, a New York limited liability company that provides business financing. The generic, identical messages offered financing options for his business and used automated systems designed to recognize keywords such as "STOP." The sending numbers could not receive calls, so he could not reach the defendant by calling back.

In December 2022, he filed a putative class action in the Eastern District of New York, invoking diversity jurisdiction under the Class Action Fairness Act. He asserted claims for three classes of persons under the FTSA, Fla. Stat. § 501.059, seeking declaratory relief, statutory damages, and an injunction. The defendant moved to dismiss under Rules 12(b)(1) and 12(b)(6).

The Amendment

On May 25, 2023, the Florida Legislature amended the FTSA to bar an action for damages unless the complainant first told the solicitor that he did not wish to receive text messages "by replying 'STOP' to the [sending] number." Fla. Stat. § 501.059(10)(c). The court quoted a Southern District of New York decision describing the mechanism: after receiving the notice, the solicitor has 15 days to stop sending text solicitations.

The defendant brought the amendment to the court's attention through a notice of supplemental authority.

Application to Uncertified Class Actions

The amending legislation, H.B. 761, provides that its amendments apply to "any putative class action not certified on or before the effective date of this act." The plaintiff had not moved for class certification, so the amendment governed his case.

No STOP Reply Alleged

The complaint did not allege that the plaintiff replied "STOP" to either message, and the screenshots attached to the complaint showed no such reply. The plaintiff alleged instead that he could not reach the defendant by calling the sending numbers. The court held that it could draw no inference from these facts that a STOP message was sent. Under "the plain text of the statute," the plaintiff was precluded from bringing an FTSA damages action, and each damages claim was dismissed as a matter of law.

Equitable and Declaratory Relief

As to the plaintiff's claims for equitable and declaratory relief, to the extent that the court had supplemental jurisdiction over those claims, it declined to exercise such jurisdiction. Given that disposition, the court did not reach the defendant's other arguments.

Takeaways

• The STOP prerequisite is a pleading element. FTSA text plaintiffs should allege, and ideally document, a STOP reply to the sending number.
• Pending class actions are covered. The amendment reaches any putative class action not certified by its effective date.
• Inability to call back is not a substitute. Alleging that the sending number could not take calls did not satisfy the requirement.
• Federal forum, Florida rules. A New York federal court applied the amended Florida statute to a Florida resident's claims against a New York company.

Read the full Eastern District of New York opinion.