Several years ago, in Salcedo v. Hanna, the Eleventh Circuit held that the receipt of a single allegedly unsolicited, autodialed text message was not a concrete enough injury-in-fact to establish Article III standing for a plaintiff under the federal Telephone Consumer Protection Act (TCPA). We covered that decision here. Since then, the Salcedo court’s reasoning has been applied by Florida district courts in cases involving five text messages, the receipt of ringless voicemails, and unanswered prerecorded message calls.

At the Florida state court level, however, the issue of whether the mere receipt of an unsolicited, autodialed text message or call (or even several) without any attendant harm is enough to satisfy standing under the Florida Telephone Solicitation Act (FTSA) is unsettled. This past March, in Alvarez v. Sunshine Life & Health Advisors LLC, a judge in the Miami-Dade County Circuit Court held that, under Florida law, the receipt of two purportedly unsolicited, autodialed text messages was enough to support the plaintiff’s standing to bring an FTSA claim. That judge found that an alleged legal injury—the simple violation of the FTSA—without any attendant actual harm or damages is enough to give plaintiffs a ticket into state court because Florida courts do not follow the same standing analysis as federal courts do under Article III.

But there are Florida state court TCPA decisions that go the other way and follow the Salcedo analysis under state law. The issue has been briefed by me and others in pending motions to dismiss filed in FTSA cases; it is also currently the subject of appeals in Saleh v. Miami Gardens Square One, Inc., et al. and Aloisio v. S. Fla. Fair and Palm Beach Cty. Expositions Inc.

Last week, in Southam v. Red Wing Shoe Company, Inc., the Florida Fourth District Court of Appeals (Fourth DCA) issued a thorough, well-reasoned decision holding that “a purely illegal action in the absence of resulting harm does not confer standing on an individual. Rather, individuals must allege some threatened or actual injury resulting from the putatively illegal action.” (Internal quotations and citation omitted.)

In that case, recognizing that the law on standing in federal court was not favorable, the plaintiff filed a putative Fair and Accurate Credit Transactions Act (FACTA) class action in Florida state court, claiming that the defendant violated the statute by printing ten digits of his credit card number on his receipt. (FACTA requires merchants to conceal all but the last five debit or credit card digits on receipts.)

The lawsuit did not allege any harm or seek to recover any damages. The Fourth DCA noted that Florida state courts are not bound by federal standing law governing actions brought in federal court because they are courts of plenary, rather than limited, jurisdiction. However, according to the Fourth DCA, “Florida jurisdiction clearly has limitations.” Applying Florida Supreme Court precedent, the court aligned with federal Article III standing standards and made clear that the mere violation of a statute is not enough for a plaintiff to maintain an action in state court. Southam has good application to FTSA cases, and savvy defense counsel should hammer it home in their arguments. The decision serves to bridge the gap between federal standing law applicable to TCPA cases and state FTSA lawsuits. However, there is another procedural mechanism available in Florida state court (which is not available in federal court), and although it is rarely used, with very strong supporting case law it can be applied in an attempt to short-circuit FTSA cases without even delving into the nuances of standing. (Hint, hint—think class action pick-offs.)