By David O. Klein

Last month, a magistrate judge for the United States District Court for the Southern District of Florida issued an informative report and recommendation in Zononi v. CHW Grp., Inc (“CHW”). Plaintiff sued CHW for allegedly sending him multiple commercial text messages without his consent. Plaintiff alleges that these text messages violated both the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”).

In turn, defendant filed a motion to dismiss the action. The TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. The FTSA, colloquially known as a Mini-TCPA, is Florida’s own set of telemarketing laws designed to regulate the delivery of intrastate telemarketing communications. Every day, numerous decisions are rendered in TCPA litigation across the country. The Zononi decision is notable because of the careful and detailed analysis of defendant’s motion undertaken by the Court.

Background of the Zononi TCPA Litigation

CHW sells home warranties designed to guard against the cost of unexpected home repairs. The plaintiff alleges that, on at least three occasions, he received commercial text messages from defendant reminding him to renew his home warranty. Plaintiff alleges that his cellular telephone number was listed on the National Do-Not-Call Registry (“NDNC”). Plaintiff also alleges that CHW sent the subject text messages using an “automated dialing system.” As our readers know, these are standard allegations contained in most TCPA litigation complaints. In response to the plaintiff’s First Amended Complaint (“FAC”), defendant filed a motion to dismiss. The motion was granted in part and denied in part.

The Zononi Decision

The Zononi decision is a notable TCPA litigation ruling for several reasons. As an initial matter, TCPA defendants’ motions to dismiss are often decided on threshold bases, leaving little to no analysis on substantive arguments otherwise contained in the pleadings. In Zononi, the magistrate judge not only evaluated each of the defendant’s arguments, he also potentially sent telemarketing companies a major warning.

With respect to defendant’s arguments, the judge held that:

1) Claims of unconstitutionality are often brought by FTSA defendants; Florida federal courts have always rejected them;

2) Plaintiff did not rebut defendant’s claim that they had an established business relationship. The TCPA exempts from the definition of “solicitation” any calls made to persons “with whom the caller has an established business relationship.” As such, plaintiff’s claim that defendant violated the NDNC provision of the TCPA fails; and

3) Plaintiff’s FAC fails to suggest a threat of future injury. Therefore, plaintiff’s request for injunctive relief was denied.

The judge also examined CHW’s claim that plaintiff failed to sufficiently plead defendant’s use of an “automated” telephone dialing system. Defendant argued that plaintiff’s allegations were conclusory and speculative – a common refrain in TCPA litigation. The judge decided this part of the motion in favor of the plaintiff.

The judge highlighted that defendant’s privacy policy stated, in part: “[t]his means CHW may contact you, in person or by recorded message, by e-mail, telephone or mobile telephone number (including use of automated dialing equipment).” In order to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to create an inference that plaintiff’s claims are plausible. Essentially, the judge viewed CHW’s privacy policy as an admission, providing plaintiff sufficient reason to believe that it employed an “automated” dialing system. In the judge’s eyes, this was more than a sufficient basis to allow plaintiff’s “automated” system claim to survive the motion to dismiss. As our readership knows, many telemarketing companies include this language in their consent language and/or privacy policy as a protective measure. In Zononi, however, this language served to further plaintiff’s case. While the Zononi decision was rendered by a magistrate judge, it may still have significant implications in future TCPA proceedings.

Hire Experienced Attorneys to Craft the Best Available Defenses to TCPA Lawsuits

Numerous decisions are rendered in TCPA litigation proceedings every day. However, opinions like Zononi are reminders that the landscape is constantly shifting. New facts are examined, and precedent is constantly being set. As such, businesses should hire experienced TCPA attorneys who stay up to date with the constant deluge of case law and regulatory changes. Experienced TCPA attorneys not only help to ensure compliance, but also explore all avenues to a successful litigation defense.

• Editor’s Note: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.