The Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, is one of the more dangerous versions of the mini-TCPAs that individual states have enacted. Like the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and its implementing regulations, FTSA prohibits, subject to certain exceptions, unsolicited sales calls to telephone numbers registered on Florida's version of the Do-Not-Call Registry and making unsolicited sales calls with an autodialer or recorded message. But FTSA contains a dangerous provision that the TCPA does not. It allows a prevailing party to recover attorney's fees and costs. It is good news for FTSA defendants that it is at least a prevailing-party provision, meaning a defendant can recover its attorney's fees and costs from the plaintiff if the defendant prevails. But the possibility that a plaintiff could recover his or her attorney's fees and costs can often serve as a hurdle to a fair, early settlement. Therefore, it is important to understand when FTSA's attorney-fee provision applies, and when it doesn't, which we discuss below.
FTSA's Attorney-Fee Provision
FTSA states that, “in any civil litigation resulting from a transaction involving a violation of [FTSA], the prevailing party, . . . if any, shall receive his or her reasonable attorney fees and costs from the nonprevailing party.” See Fla. Stat. § 501.059(11)(a). The term “transaction” is the key to understanding which FTSA claims this attorney-fee provision applies to.
FTSA's Rules Regarding Contracts Formed During Sales Calls
FTSA contains two subsections that apply to contracts formed during sales calls. The first subsection contains a number of requirements that must be met for a contract formed during a sales call to be valid and enforceable. See Fla. Stat. § 501.059(6). The second subsection, subject to certain exceptions, requires a merchant that engages telephone solicitors to make sales calls to obtain a signed copy of the relevant contract from the consumer before it charges the consumer's credit card or makes an electronic transfer of funds. See Fla. Stat. § 501.059(7). The only time the term “transaction” appears in FTSA is in those two subsections and the attorney-fee provision.
FTSA Attorney-Fee Provision Only Applies to Claims Brought Under Either Fla. Stat. § 501.059(6) or (7)
As FTSA's attorney-fee provision only explicitly applies to claims resulting from a transaction involving a violation of FTSA, it logically follows that FTSA's attorney-fee provision would only apply to claims involving violations of either Fla. Stat. § 501.059(6) or (7), the two FTSA subsections relating to contracts formed during a sales call and actually using the term “transaction.” In Bales v. Bright Solar Mktg. LLC, United States Magistrate Judge Philip Lammens, of the Middle District of Florida, agreed with that logic.
In Bales, the plaintiff's FTSA claim was based on three calls the plaintiff allegedly received from the defendant. The court noted that FTSA regulates both sales calls and transactions resulting from sales calls. The court ruled that FTSA's attorney-fee provision only applies to violations of Fla. Stat. § 501.059(6) and (7), the subsections regulating transactions resulting from sales calls. As part of its reasoning, the court explained that the Florida legislature, when it amended FTSA to provide a private right of action for the receipt of certain sales calls not involving a transaction, rejected an expansion of the attorney-fee provision to violations of FTSA not involving transactions. Based on Bales, it seems clear that FTSA's attorney-fee provision only applies to claims based on violations of either Fla. Stat. § 501.059(6) or (7).
Court Improperly Recognizes the Possibility That FTSA's Attorney-Fee Provision May Apply to Other FTSA Claims
Despite Bales, a United States District Judge in the Middle District of Florida recently disagreed. In Clouse v. Loan Dept, LLC, the plaintiff brought TCPA claims and a FTSA claim against the defendant and sought attorney's fees and costs under FTSA. Plaintiff's FTSA claim was brought under Fla. Stat. § 501.059(8)(a), which prohibits, subject to certain exceptions, making unsolicited sales calls using an autodialer or recorded message. It is not necessary for an unsolicited sales call to involve a transaction/formation of a contract to violate that subsection.
The defendant, correctly, sought to strike the plaintiff's claim for attorney's fees and costs under FTSA's attorney-fee provision since the plaintiff's FTSA claim was not brought under either Fla. Stat. § 501.059(6) or (7). But, strangely, the court denied the defendant's motion to strike on the grounds that it was too early in the case to decide that issue.
In Bales, the court decided the attorney-fee issue after the defendant won summary judgment. The court in Clouse reasoned that it did not have to follow Bales because it was much earlier in the case (neither party had won summary judgment, nor had summary judgment briefing begun). The court believed it would be more appropriate to decide the attorney-fee issue after the record was more developed or following an entry of judgment for one of the parties.
This rationale is inconsistent with traditional federal practice, where courts should evaluate the merits of the pleadings as they are actually asserted, not what they could theoretically become. It was not too early for the court to strike the plaintiff's claim for attorney's fees because this plaintiff simply did not plead a claim for which they could even be available. Deciding whether FTSA's attorney-fee provision applies to a Plaintiff's FTSA claim is as simple as looking at the complaint and seeing what subsections of FTSA the plaintiff is bringing his or her claims under. If the plaintiff is bringing at least one FTSA claim under either Fla. Stat. § 501.059(6) or (7), then the attorney-fee provision could apply and the plaintiff can assert a claim for attorney's fees and costs (while the defendant can also seek attorney's fees and costs if it is the prevailing party). But if the plaintiff is not bringing a FTSA claim under either Fla. Stat. § 501.059(6) or (7), FTSA's attorney-fee provision is simply inapplicable. When a defendant is facing a FTSA claim not brought under either Fla. Stat. § 501.059(6) or (7) and the plaintiff is seeking attorney's fees or costs under FTSA's attorney-fee provision, the defendant should move to strike that claim as improper based on Magistrate Judge Lammens' correct, common-sense reasoning in Bales. While a defendant winning this issue will prevent it from being able to obtain attorney's fees and costs in the event it is the prevailing party, eliminating that possibility for the plaintiff is more likely to facilitate reaching a fair, early settlement.
Case No: 5:21-cv-496-MMH-PRL, 2023 U.S. Dist. LEXIS 142028 (M.D. Fla. Aug. 15, 2023); Magistrate Judge Lammens' holding was adopted by the United States District Judge. See Bales v. Bright Solar Mktg. LLC, Case No. 5:21-cv-496-MMH-PRL, 2023 U.S. Dist. LEXIS 156721 (M.D. Fla. Sept. 5, 2023); Case No: 8:23-cv-2720-CEH-SPF, 2025 U.S. Dist. LEXIS 1382 (M.D. Fla. Jan. 6, 2025).
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