Friend or foe?

That’s what TCPA defendants are beginning to wonder about Article III standing principles in the Eleventh Circuit.

Yet another Defendant has been remanded to state court to litigate a federal claim for lack of standing in federal court, and this is just a mess.


The way things are supposed to work—i.e. 99.99% of times—a federal claim can be litigated in federal court. There’s a federal statute permitting it. There’s Supreme Court precedent around it.

But the TCPA is always a special little snowflake.

Yet, somehow, just because a Plaintiff wasn’t harmed by a defendant’s conduct he/she gets the outstanding benefit of not having to litigate in federal court (which is a much trickier place to sustain a claim than in many state courts.) Plaintiff benefits from not being harmed. Makes no sense folks.

Oddly though this isn’t even the first time courts have determined that TCPA cases were not subject to litigation in federal court. Back in the early days of TCPA litigation the Courts were unsure what to make of the TCPA’s oddly worded private right of action that only authorizes litigation if the rules of the state in which the suit was brought permitted it.

What that language really means—of course-is that a state had to authorize suit and that the TCPA did not have its own standalone private right of action. But that’s not how courts interpreted it. Instead many bafflingly concluded that Congress was closing the doors to the federal courthouse to TCPA claims but allowed such suits to be filed exclusively in state court. The issue made it all the way to the US Supreme Court in Mims back in 2012 in which a unanimous court held that TCPA suits can be brought in federal court.

Except now they can’t again. At least in the Eleventh Circuit.

In Turizo v. Solutions, CASE NO. 21-cv-60289-ALTMAN/Hunt2021 U.S. Dist. LEXIS 92775 (S.D. Fl.  May 17, 2021), for example, the Court remanded a TCPA suit back to state court after the Plaintiff argued he had not been harmed by the conduct. The Defendant tried to keep the case in federal court by arguing, in essence “no fair” but the Court was unmoved and remanded for lack of standing.

I continue to believe there is a very clear path to avoid remand and/or secure dismissal from a state court but it requires a declaratory relief action in federal court and leveraging of cases like Mims and those dealing with prudential standing. Punchline: a consumer who lacks standing to sue on a federal claim in federal court lacks prudential standing to sue in state court. (See Stoops.)

Chat soon.

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