FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance

• HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations.
• HB 761 also stated that it should be applied retroactively to cases that were styled as class actions so long as a class had not been certified before HB 761’s effective date.
• That retroactivity provision has caused a split between Florida’s federal courts and its state courts.
• Two federal courts have applied HB 761 retroactively, dismissing class actions because a class had not been certified before HB 761’s effective date.
• But two Florida state courts have refused to apply HB 761 retroactively, holding that applying a pre-suit notice requirement retroactively would violate due process.
• Defendants will likely respond by invoking HB 761 retroactively only against unnamed class members (e.g., by striking class allegations) to avoid due process issues.
• Relatedly, Florida state courts have sent mixed signals on TCPA/FTSA standing.
• Until appellate courts provide clarity, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.