Borges v. SmileDirectClub, LLC.
ORDER denying 4 Defendant's Motion to Dismiss Class Action Complaint. Answer and Affirmative Defenses due by 9/30/2022. Signed by Magistrate Judge Melissa Damian on 9/15/2022. See attached document for full details. (oco)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23011-DAMIAN
ALEJANDRO BORGES, individually,
and on behalf of all others similarly situated,
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS CLASS ACTION COMPLAINT [ECF NO. 4]
THIS CAUSE is before the Court on Defendant, SmileDirectClub, LLC’s
(“Defendant”), Motion to Dismiss Class Action Complaint, filed August 19, 2021, (the
“Motion to Dismiss”). [ECF No. 4].1
THE COURT has carefully considered the Motion to Dismiss, the parties’
memoranda [ECF Nos. 18, 21, 41, and 43], the notices of supplemental authority and
responses thereto [ECF Nos. 44–48, 53, 55–56, 67, and 69–71], the supplemental briefing
ordered by the Court [ECF Nos. 65 and 66], the pertinent portions of the record, and relevant
legal authorities. The Court also heard from the parties, through counsel, at hearings held
January 18, 2022, and March 21, 2022, and is otherwise fully advised in the premises. For the
reasons set forth below, the Motion to Dismiss [ECF No. 4] is denied.
This matter is referred to the undersigned pursuant to the Parties’ Consent to Proceed Before
United States Magistrate Judge, [ECF No. 58], and Order Referring Case to Magistrate
Judge. See ECF No. 59.
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Plaintiff, Alejandro Borges (“Plaintiff”), brought this class action pursuant to the
Florida Telephone Solicitation Act (“FTSA”), Section 501.059, et seq., Florida Statutes
(2021), as amended by Senate Bill No. 1120, a subsection of Florida’s Consumer Protection
laws. See ECF No. 1-3 (“Complaint”) at ¶ 1. Plaintiff alleges Defendant is an international
orthodontic device company that specializes in teeth alignment products and offers its
products to consumers online. Id. at ¶ 2. To promote its products and services, Defendant
engages in telephonic sales calls to consumers without securing their prior express written
consent as required by the FTSA. Id. at ¶ 3.
According to the allegations in the Complaint, on or about July 13, 2021, and July 19,
2021, Defendant sent two unsolicited text messages2 promoting orthodontic consumer goods
or services to Plaintiff’s cellular telephone number. Id. at ¶¶ 11–12. Defendant allegedly sent
similar unsolicited text messages to other individuals residing in Florida who did not consent
to receive text messages from Defendant. Id. at ¶¶ 13, 32. Plaintiff alleges that in sending these
unsolicited, unconsented to texts, Defendant used “a computer software system that
automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” Id.
at ¶¶ 15, 34. Plaintiff also alleges that neither he nor the Class members gave Defendant prior
express written consent to send the text messages promoting Defendant’s business in such
manner. Id. at ¶¶ 16, 32. According to Plaintiff, Defendant’s actions allegedly caused Plaintiff
and the Class members harm, including violations of their statutory rights, annoyance,
nuisance, and invasion of their privacy. Id. at ¶ 4.
Section 501.059(1)(j) defines telephonic sales calls to include text messages.
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Based on these allegations, on July 20, 2021, Plaintiff filed a one-count Complaint in
the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida,
alleging Defendant “made and/or knowingly allowed telephonic sales calls to be made
utilizing an automated system for the selection or dialing of telephone numbers” without
obtaining Plaintiff’s and the Class members’ prior express written consent in violation of the
FTSA. Id. at ¶¶ 33–34. Pursuant to Section 501.059(10)(a) of the FTSA, Plaintiff, on behalf
of the Class members and himself, seeks statutory damages and an injunction enjoining
Defendant from making further telephonic sales calls without obtaining the called party’s
prior express written consent. Id. at ¶¶ 5, 35.
On August 18, 2021, Defendant removed the action to this Court pursuant to the Class
Action Fairness Act, 28 U.S.C. § 1332(d). [ECF No. 1]. The following day, on August 19,
2021, Defendant filed the Motion to Dismiss now before this Court challenging the FTSA as
unconstitutional. [ECF No. 4]. On October 25, 2021, pursuant to 28 U.S.C. § 2403(b) and
Federal Rule of Civil Procedure 5.1(b), this Court certified to the Attorney General of the
State of Florida that the constitutionality of Section 501.59(8)(a) of the FTSA had been
challenged, and the Attorney General declined to respond within the sixty-day period
required by the certification. [ECF No. 39].
In the Motion to Dismiss, Defendant argues that the FTSA is unconstitutional for two
reasons: (1) it violates the First Amendment to the United States Constitution (and Florida’s
free speech guarantee) as an unconstitutional content-based restriction on speech (i.e., the
statute singles out telephonic sales calls); and (2) it violates the Due Process Clause of the
Fourteenth Amendment (and Florida’s due process guarantee) because it fails to define what
constitutes an “automated system for the selection or dialing of telephone numbers,” thereby
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making it unconstitutionally vague regarding the type of equipment or system that is
prohibited under the statute. Motion to Dismiss at 3–4.3
APPLICABLE LEGAL STANDARDS
To adequately plead a claim for relief, Federal Rule of Civil Procedure 8(a)(2) requires
“a short and plain statement of the claim showing that the pleader is entitled to relief,” in
order to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Federal Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a complaint based on the plaintiff’s “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule
12(b)(6), a plaintiff must present “enough facts to state a claim for relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 12(b)(6) does not
permit dismissal of a well-pled complaint simply because “actual proof of those facts is
improbable,” the “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id.
When ruling on a motion under Rule 12(b)(6), a court must “view the complaint in
the light most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as
true.” Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). Still, the court
need not take allegations as true if they are merely “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555). Additionally, “a district court weighing a
The pagination of the Motion cited herein corresponds to that shown on the top right-hand
corner created by the Court’s CM/ECF filing system.
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motion to dismiss asks not whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims.” Twombly, 550 U.S. at 563 n.8 (citation and
internal quotations omitted). “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)
(quoting Conley, 355 U.S. at 45–46).
Although Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(6),
Defendant neither contests the sufficiency of the factual allegations nor the plausibility of the
claims as alleged in the Complaint. Rather, in the Motion to Dismiss, Defendant asserts
constitutional challenges to Section 8(a) of the FTSA and argues that it runs afoul of the First
Amendment, as an unconstitutional content-based restriction on speech, and the Due Process
Clause of the Fourteenth Amendment, as unconstitutionally vague. Motion to Dismiss at 3–
As noted in the Motion to Dismiss, the FTSA attracted little attention since its
enactment in 1987 until the Florida legislature added a private right of action in 2021. Id. at
5. For many of the same reasons that Congress enacted the federal Telephone Consumer
Protection Act (“TCPA”) in 1991, the Florida legislature introduced CS/SB 1120 to address
several concerns raised by consumers regarding unsolicited, automated telephone calls. See
Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2344 (2020) (noting the TCPA
“responded to a torrent of vociferous consumer complaints about intrusive robocalls”); see also
The Florida Senate, Bill Analysis And Fiscal Impact Statement, S.B. 1120, at 2 (Apr. 19,
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2021) (“Consumers are often inundated with unwanted calls. In fiscal year 2020, the Federal
Trade Commission . . . received 293,071 complaints from Florida consumers about unwanted
telephone calls.”). The Florida bill updated Section 501.059 of the FTSA by creating a new
private right of action for consumers which went into effect on July 1, 2021. Fla. Stat. §
Consequently, the FTSA now requires all solicitors making sales telephone calls, text
messages, and voicemail transmissions with an automated system that is capable of either
selecting or dialing the recipient’s telephone number to have the recipient’s prior express
written consent. Id. at § 501.059(8)(a). Specifically, Section 8(a) of the FTSA provides:
A person may not make or knowingly allow a telephonic sales call to be made
if such call involves an automated system for the selection or dialing of
telephone numbers or the playing of a recorded message when a connection is
completed to a number called without the prior express written consent of the
Id. at § 501.059(8)(a).4
The terms “telephonic sales call” and “prior express written consent” are defined under the
statute as follows:
“Telephonic sales call” means a telephone call, text message, or voicemail
transmission to a consumer for the purpose of soliciting a sale of any consumer
goods or services, soliciting an extension of credit for consumer goods or
services, or obtaining information that will or may be used for the direct
solicitation of a sale of consumer goods or services or an extension of credit for
Fla. Stat. § 501.059(1)(j).
“Prior express written consent” means an agreement in writing that:
1. Bears the signature of the called party;
2. Clearly authorizes the person making or allowing the placement of a
telephonic sales call, text message, or voicemail transmission to deliver
or cause to be delivered to the called party a telephonic sales call using
an automated system for the selection or dialing of telephone numbers,
the playing of a recorded message when a connection is completed to a
number called, or the transmission of a prerecorded voicemail;
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Aggrieved parties can bring an action to enjoin violations of Section 8(a) and recover
actual damages or $500 per violation, whichever is greater. Id. at § 501.059(10)(a).
Additionally, a court may triple these damages if the underlying violation is willful or
knowing. Id. at § 501.059(10)(b).
With the foregoing statutory framework in mind, the Court first considers whether
Plaintiff has alleged sufficient facts to state a claim for relief under the FTSA. Twombly, 550
U.S. at 555.
Plaintiff Has Stated A Claim Under The FTSA.
To assert an FTSA claim, a plaintiff must allege a person made or knowingly allowed
“a telephonic sales call to be made if such call involves an automated system for the selection
or dialing of telephone numbers . . . without the prior express written consent of the called
party.” Fla. Stat. § 501.059(8)(a) (hereinafter, “Section 8(a) of the FTSA” or the “Autodialer
Provision”). At the motion to dismiss stage, the Court’s task is to determine ‘not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims.’” Twombly, 550 U.S. at 563 n.8.
3. Includes the telephone number to which the signatory authorizes a
telephonic sales call to be delivered; and
4. Includes a clear and conspicuous disclosure informing the called party
a. By executing the agreement, the called party authorizes the
person making or allowing the placement of a telephonic sales
call to deliver or cause to be delivered a telephonic sales call to
the called party using an automated system for the selection or
dialing of telephone numbers or the playing of a recorded
message when a connection is completed to a number called; and
b. He or she is not required to directly or indirectly sign the written
agreement or to agree to enter into such an agreement as a
condition of purchasing any property, goods, or services.
Id. at § 501.059(1)(g).
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As noted above, although Defendant moves to dismiss the Complaint pursuant to Rule
12(b)(6), Defendant does not contest the sufficiency of the factual allegations or the
plausibility of the claims in Plaintiff’s Complaint. See generally Motion to Dismiss. And, taking
the well-pled allegations in the Complaint as true, the Court finds that Plaintiff has sufficiently
alleged Defendant violated the autodialer provision of the FTSA by using an “automated
system” to send the unsolicited and unconsented to text messages at issue. See Complaint at
¶¶ 29–34. Defendant instead avers that Section 8(a) of the FTSA violates the First and
Fourteenth Amendments to the United States Constitution, as well as the free speech and due
process guarantees under the Florida Constitution. See Motion to Dismiss at 3–4. Thus, the
Court turns to Defendant’s constitutional challenges.
The FTSA Does Not Violate The First Amendment.
Defendant first argues that Section 8(a) of the FTSA violates the First Amendment.
Specifically, Defendant asserts the statute imposes a content-based restriction, as it subjects
only “telephonic sales calls” to the FTSA’s regulations. Id. at 6–8. Defendant further argues
that because it is a content-based restriction on speech, the FTSA is subject to the very high
standard of strict scrutiny. Id. at 9–10. Strict scrutiny requires a law to be “narrowly tailored
to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).
Plaintiff responds that since the FTSA only restricts commercial speech, it is subject to
the less stringent standard of intermediate scrutiny. Response at 3–7. To satisfy the
intermediate scrutiny standard, a statute or regulation must be “narrowly drawn” to “directly
and materially advance” a “substantial [government] interest.” Florida Bar v. Went For It, Inc.,
515 U.S. 618, 624 (1995) (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 564–65 (1980)).
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1. The FTSA Is Subject To Intermediate Scrutiny.
Generally, “[a] content-neutral regulation of expressive conduct is subject to
intermediate scrutiny, while a regulation based on the content of the expression must
withstand the additional rigors of strict scrutiny.” NetChoice, LLC v. Att’y Gen., State of Fla., 34
F.4th 1196, 1223 (11th Cir. 2022) (citing Fort Lauderdale Food Not Bombs v. City of Fort
Lauderdale, 11 F.4th 1266, 1291 (11th Cir. 2021)). However, the general rule that contentbased restrictions on speech trigger strict scrutiny is not absolute. Dana’s R.R. Supply v. Att’y
Gen., Fla., 807 F.3d 1235, 1246 (11th Cir. 2015). “Content-based restrictions on certain
categories of speech such as commercial and professional speech, though still protected under
the First Amendment, are given more leeway because of the robustness of the speech and the
greater need for regulatory flexibility in those areas.” Id. With respect to these categories of
speech, a court’s inquiry is “the more flexible, yet still searching, standard of intermediate
scrutiny.” Id. (citing Central Hudson, 447 U.S. at 564). Under intermediate scrutiny,
“‘restrictions directed at commerce or conduct’ may be upheld—assuming they further a
substantial government interest and are narrowly tailored—even if they ‘impos[e] incidental
burdens on speech.’” Id. (quoting Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–64 (2011)).
Commercial speech is defined as an “expression related solely to the economic
interests of the speaker and its audience.” Central Hudson, 447 U.S. at 561. The “core notion”
of commercial speech extends to speech that proposes a commercial transaction. Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 65–66 (1983). The law is clear that commercial speech
is afforded lesser protections than those traditionally given to noncommercial speech. FF
Cosmetics FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017). The party
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seeking to uphold a restriction on commercial speech carries the burden of justifying it. Bolger,
463 U.S. at 71 n.20 (citing Central Hudson, 447 U.S. at 570).
Here, although the parties agree the FTSA restricts commercial speech, they disagree
on what level of scrutiny—intermediate v. strict—applies. See Motion to Dismiss at 7–10;
Response at 2–7. Defendant argues that Section 8(a) of the FTSA is subject to strict scrutiny
because it singles out a specific type of commercial speech—telephonic sales calls—and
subjects only these calls to the FTSA’s regulations, while all other types of calls (e.g.,
informational and debt collection calls) are not restricted by the FTSA’s autodialer provision.
Motion to Dismiss at 6–8. But, as the Eleventh Circuit recently specified in analyzing a
different Florida statute5 in the First Amendment context, the fact that a statutory provision
targets only a specific subset or type of speech (here, solicitation calls) “isn’t enough to subject
the entire law to strict scrutiny or per se invalidation.” NetChoice, 34 F.4th at 1225. Rather, the
appellate court explained, although “the First Amendment mandates strict scrutiny for any
speech regulation that applies to one medium (or a subset thereof) but not others: ‘Heightened
scrutiny is unwarranted when the differential treatment is justified by some special
characteristic of the particular medium being regulated.’” Id. (quoting Turner Broad. Sys., Inc.
v. F.C.C., 512 U.S. 622, 660–61 (1994)). As applied in the instant case, the NetChoice decision
instructs that although the FTSA’s autodialer provision applies only to telephonic sales calls,
it is not necessary to subject the law to strict scrutiny because Section 8(a) of the FTSA
regulates only commercial speech.
In NetChoice, the Eleventh Circuit analyzed the constitutionality of S.B. 7072—a new Florida
law aimed at restricting large social media platforms’ ability to engage in content moderation
decisions. 34 F.4th at 1205.
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The Eleventh Circuit has not addressed the FTSA within the context of a First
Amendment challenge, and there are scant decisions from federal district courts that have
done so. However, at least one court in this District has analyzed similar constitutional
challenges to the statute. See Turizo v. Subway Franchisee Advert. Fund Tr. Ltd., No. 21-cv-6149,
2022 WL 2919260 (S.D. Fla. May 18, 2022) (Ruiz, J.). In Turizo, the plaintiff brought a similar
class action under the FTSA alleging the defendant had violated the FTSA’s autodialer
provision by using an “automated system” to transmit unsolicited text messages advertising
Subway restaurant deals. Id. at *1–2. Like Defendant here, the defendant in Turizo asserted
constitutional challenges to the FTSA. Id. at *2. The District Court held that the statute is
subject to intermediate scrutiny because it regulates commercial speech, and the court found
that the FTSA’s autodialer provision “does not represent an unconstitutional restriction on .
. . commercial speech” and that the statute “is narrowly drawn to advance a substantial
government interest.” Id. at *9–11. In Pariseau v. Built USA, LLC, a court in the Middle District
of Florida likewise held that Section 8(a) of the FTSA is subject to intermediate scrutiny on
the same grounds. No. 21-cv-2902, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022) (Merryday,
In Turizo, the parties disagreed on whether the Supreme Court’s decisions in Reed and
Barr altered the traditional application of intermediate scrutiny for analyzing regulations on
commercial speech. The parties in the instant case have the same disagreement. See Motion
to Dismiss at 7–10; Response at 5–7; Reply at 3.
In Reed, the Supreme Court found that a municipality’s sign code constituted a
content-based speech restriction because it treated categories of signs differently based on the
type of information conveyed. 576 U.S. at 163–65. The Reed Court held the municipality’s
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sign code failed strict scrutiny. Id. at 171–73. In so ruling, the Supreme Court explained that
“[g]overnment regulation of speech is content based if a law applies to particular speech
because of the topic discussed or the idea or message expressed.” Id. (citing Sorrell, 564 U.S.
at 563–64). Similarly, in Barr, the Supreme Court invalidated the government-debt exception
to the TCPA’s regulations because it “impermissibly favored debt-collection speech over
political and other speech, in violation of the First Amendment.” 140 S. Ct. at 2343. The Barr
Court found the government-debt exception unconstitutional because it could not withstand
strict scrutiny and severed it from the remainder of the statute. Id. at 2347, 2355.
Defendant argues that the Supreme Court’s decisions in Reed and Barr compel the
application of strict scrutiny here. Motion to Dismiss at 6–10. However, as Judge Ruiz found
in Turizo, the Supreme Court did not explicitly address the issue of content-based restrictions
on commercial speech in either Reed or Barr. Turizo, 2022 WL 2919260, at *10; see also
Pariseau, 2022 WL 3139243, at *4–5. Indeed, the plurality decision in Barr specifically
cautioned: “Our decision is not intended to expand existing First Amendment doctrine or to
otherwise affect traditional or ordinary economic regulation of commercial activity.” 140 S.
Ct. at 2347. This Court agrees that the Reed and Barr decisions did not alter the existing rule
that restrictions on commercial speech are subject to intermediate scrutiny.
This Court observes that Eleventh Circuit precedent consistently applies intermediate
scrutiny when analyzing regulations on commercial speech, even where the appellate court
determined that “the regulations at issue were speaker focused and content based.” Ocheesee
Creamery LLC v. Putnam, 851 F.3d 1228, 1235 n.7 (11th Cir. 2017); see also Dana’s R.R. Supply,
807 F.3d at 1246 (“Content-based restrictions on certain categories of speech such as
commercial and professional speech, though still protected under the First Amendment, are
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given more leeway because of the robustness of the speech and the greater need for regulatory
flexibility in those areas.” (citing Central Hudson, 447 U.S. at 564)); accord Woods v. Santander
Consumer USA Inc., No. 14-cv-02104, 2017 WL 1178003, at *2 (N.D. Ala. Mar. 30, 2017)
(“Even where commercial speech is content-based, courts apply intermediate scrutiny.”).
Based on the foregoing, this Court finds that Section 8(a) of the FTSA is subject to
intermediate scrutiny because it restricts commercial speech, despite the statute’s imposition
of content-based regulations on such commercial speech.
2. Section 8(a) Of The FTSA Survives Intermediate Scrutiny.
A restriction on commercial speech survives First Amendment intermediate scrutiny
if (1) the speech is not misleading and does not concern unlawful activity, (2) the regulation
serves a substantial government interest, (3) the regulation directly advances the asserted
government interest, and (4) the regulation is not more extensive than is necessary to serve
that interest. FF Cosmetics, 866 F.3d at 1298 (quoting Central Hudson, 447 U.S. at 566).
The parties do not dispute that the commercial speech at issue (telephonic sales calls)
is neither misleading nor related to unlawful activity. The next consideration, then, is whether
Section 8(a) of the FTSA serves a substantial government interest. Central Hudson, 447 U.S.
at 563–64 (“The State must assert a substantial interest to be achieved by restrictions on
commercial speech.”). Plaintiff, who carries the burden of justifying the restriction on
Defendant’s commercial speech, asserts that “residential privacy and tranquility” are
“significant governmental interests.” Response at 8. Pointing to the legislative history of the
FTSA, Plaintiff emphasizes that the Florida legislature amended the FTSA to “combat
unwanted prerecorded and autodialed calls that had resulted in 293,071 complaints from
Florida consumers in 2020 alone.” Id.
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This Court agrees that consumer privacy protection is a well-recognized substantial
government interest. See Turizo, 2022 WL 2919260, at *10 (citing Barr, 140 S. Ct. at 2348
(recognizing “the credibility of Congress’s continuing interest in protecting consumer
privacy”); Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1253–54 (S.D. Fla. 2019)
(concluding consumer privacy protection is a “compelling government interest”); Wreyford v.
Citizens for Transp. Mobility, Inc., 957 F. Supp. 2d 1378, 1380 (N.D. Ga. 2013) (“[T]he
government has a significant interest in protecting users of cellular telephones from invasions
of privacy, nuisance, and uninvited costs.”)).
The next consideration is whether the challenged regulatory technique under the
FTSA directly advances the asserted government interest. Plaintiff argues that the Florida
legislature amended the FTSA to reduce unwanted sales calls to consumers in response to
consumer complaints. Response at 8–9; Surreply at 2. This Court agrees that Section 8(a) of
the FTSA advances the public interest in protecting consumer privacy by limiting the use of
autodialing equipment which has the ability to greatly increase the number of unwanted calls,
including automated calls or “robocalls.” See Turizo, 2022 WL 2919260, at *10 (“[W]ith the
knowledge that autodialers greatly increase the speed and efficiency with which solicitors can
connect to called parties, the Florida Legislature implemented limitations on the permissible
use of autodialing equipment.”).
Lastly, the Court considers whether Section 8(a) of the FTSA is “narrowly drawn” to
be a valid restriction on commercial speech under the First Amendment. Went For It, 515 U.S.
at 624. Notably, “the ‘least restrictive means’ test has no role in the commercial speech
context.” Id. at 632. Rather, a court must determine whether there is a “fit” between the
government’s interests and the means chosen to advance those interests:
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a fit that is not necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is in proportion to
the interest served, that employs not necessarily the least restrictive means but
. . . a means narrowly tailored to achieve the desired objective. Within those
bounds we leave it to governmental decisionmakers to judge what manner of
regulation may best be employed.
FF Cosmetics, 866 F.3d at 1299 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
480 (1989)). As the Turizo Court noted, Section 8(a) of the FTSA “is narrowly drawn because
while limiting the use of autodialers, it does not outright prohibit them. Nor does the
autodialer provision prohibit [all] unsolicited telephone calls.” 2022 WL 2919260, at *11.
Indeed, the FTSA leaves open alternative channels for communication such as “unsolicited
live calls, consented-to autodialed calls, and unsolicited mail and email advertisements.” Id.
This Court agrees that Section 8(a) of the FTSA does not outright prohibit all unsolicited sales
calls nor the use of autodialers but is instead narrowly drawn to advance a substantial
government interest. Therefore, the Court finds the statute’s restriction on commercial speech
is narrowly tailored to advance the significant government interest in reducing unwanted sales
calls and, as such, survives intermediate scrutiny.
Defendant asserts that the FTSA’s “prior express written consent” requirement is still
more extensive than necessary and that the State failed to consider less restrictive alternatives
(i.e., do-not-call lists or opt-out requirements). See Reply at 7–8; ECF No. 66, at 3. However,
although the regulation may not be the least restrictive means for advancing the State’s
interests, as noted above, “the ‘least restrictive means’ test has no role in the commercial
speech context.” Went For It, 515 U.S. at 632. The Eleventh Circuit has upheld “prohibitions
on commercial speech despite the availability of potentially less-restrictive alternatives.” FF
Cosmetics, 866 F.3d at 1300 (citing cases). Here, because Section 8(a) is narrowly drawn to
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advance the State’s interests, even if some alternative or less restrictive means for advancing
those interests may be available, the statute nevertheless survives intermediate scrutiny.
Accordingly, the Court finds Section 8(a) of the FTSA does not violate the First
Section (8)(a) Of The FTSA Is Not Unconstitutionally Vague.
Defendant next challenges Section 8(a) of the FTSA as unconstitutionally vague and
contends the statute’s failure to define the term “automated system for the selection or dialing
of telephone numbers” is an “unsurmountable due process problem.” Motion to Dismiss at
16–17. According to Defendant, the use of such vague language to describe the equipment
prohibited by the regulation is unconstitutional and unduly chills protected speech. Id. at 18.
Defendant further asserts that the FTSA’s broad use of the term “automated system for the
selection or dialing of telephone numbers” opens the door to arbitrary and discriminatory
application of the law in violation of the Due Process Clause. Id. at 22.
To assert a successful facial challenge based on vagueness, Defendant “must establish
that no set of circumstances exist under which the [statute or regulation] would be valid.”
Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (quoting United States
v. Salerno, 481 U.S. 739, 745 (1987)). “The fact that a [statute or regulation] might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it
wholly invalid.” Id. As the Eleventh Circuit observed, this heavy burden makes such an attack
“the most difficult to mount successfully.” Id. Importantly, when presented with a facial
challenge, the court must “examine the complainant’s conduct before analyzing other
hypothetical applications of the law.” Vill. of Hoffman Estates v. Flipside, Hoffman Estate, Inc.,
455 U.S. 489, 495 (1982). As Plaintiff argues, where a statute or regulation clearly covers
Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 17 of 18
some conduct in which a party engages, that party cannot complain of the vagueness of the
law. Ala. Educ. Ass’n v. State Superintendent of Educ., 746 F.3d 1135, 1139–40 (11th Cir. 2014).
Section 8(a) of the FTSA prohibits telephonic sales calls involving “an automated
system for the selection or dialing of telephone numbers . . . without the prior express written
consent of the called party.” Fla. Stat. § 501.059(8)(a). In the Complaint, Plaintiff alleges that
Defendant “utilized a computer software system that automatically selected and dialed
Plaintiff’s and the Class members’ telephone numbers” without obtaining their prior express
written consent. See Complaint at ¶¶ 15, 32–34. Based on these allegations, which the Court
must accept as true, Defendant’s conduct clearly falls within the scope of the FTSA’s
autodialer provision. Fla. Stat. § 501.059(8)(a) (“A person may not make or knowingly allow
a telephonic sales call to be made if such call involves an automated system for the selection
or dialing of telephone numbers . . . without the prior express written consent of the called
party.”). Because Defendant’s conduct alleged in the Complaint falls directly within the
statute, Defendant’s facial attack on Section(8)(a) of the FTSA on vagueness grounds is
unpersuasive. See Turizo, 2022 WL 2919260, at *11–12.
Defendant also contends there is no objective standard to determine what type of
technology (i.e., “an automated system”) falls within the FTSA. Reply at 9–11. But the lack
of a definition for the term “automated system” is not grounds to invalidate the entire statute.
It is indisputable that “a statute is not ambiguous merely because it contains a term without a
statutory definition.” United States v. Sepulveda, 115 F.3d 882, 886 n.9 (11th Cir. 1997); accord
State v. Brake, 796 So. 2d 522, 528 (Fla. 2001) (“[T]he legislature’s failure to define a statutory
term does not in and of itself render a penal provision unconstitutionally vague.”).
Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 18 of 18
The Court finds that the absence of a definition of “automated system” in Section 8(a)
of the FTSA does not render that provision unconstitutionally vague when, as here,
Defendant’s alleged conduct is clearly encompassed by the statute. Accordingly, Section 8(a)
of the FTSA is not unconstitutionally vague, and Defendant’s challenge on vagueness
grounds also fails.
In short, Section 8(a) of the FTSA is not unconstitutional. The statute survives
intermediate scrutiny as a content-based restriction on commercial speech, and it is not
unconstitutionally vague for want of a definition of the term “automated system.” Because
Plaintiff has stated a valid claim for relief under the FTSA, Plaintiff is entitled to offer evidence
to support his claims and those of the purported Class members. Twombly, 550 U.S. at 563.
Accordingly, for the reasons stated above, it is hereby
ORDERED and ADJUDGED that Defendant, SmileDirectClub, LLC’s, Motion to
Dismiss Class Action Complaint [ECF No. 4] is DENIED. It is further
ORDERED and ADJUDGED that the STAY previously in place in this matter is
LIFTED. It is further
ORDERED and ADJUDGED that Defendant shall file its Answer and Affirmative
Defenses to Plaintiff’s Class Action Complaint on or before September 30, 2022.
DONE and ORDERED in Chambers at Miami, Florida this 15th day of September
UNITED STATES MAGISTRATE JUDGE
Counsel of Record
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