An order was filed in the Southern District of Florida on Thursday denying the motion of defendant SmileDirectClub, LLC (SDC), to dismiss a class action complaint filed against them by Alejandro Borges.
The class action was brought under the Florida Telephone Solicitation Act (FTSA). Plaintiff Borges alleges that as an international orthodontic device company, defendant SDC “engages in telephonic sales calls to consumers without securing their prior express written consent” in violation of the FTSA.
Borges contends that defendant SDC sent him two unsolicited text messages promoting their goods and services in July of 2021 and did the same to other individuals residing in Florida without their express written consent. The unsolicited communications were allegedly sent by SDC using “a computer software system that automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” The plaintiff’s initial complaint sought statutory damages and an order preventing the Defendant from making additional sales calls without the express written consent of the individual.
The suit was met with defendant SDC’s challenge that the FTSA is unconstitutional. Specifically, SDC argued that the FTSA violates the first amendment by placing a content-based restriction on speech and that it violates the Due Process Clause of the fourteenth amendment since it is unconstitutionally vague and does not specify what an “automated system for the selection or dialing of telephone numbers,” is.
The Court denied SDC’s motion to dismiss and explained that SDC “neither contests the sufficiency of the factual allegations nor the plausibility of the claims as alleged in the complaint.”
Judge Melissa Damian ruled that the plaintiff had sufficiently stated a claim under the FTSA and that the FTSA was not in violation of the first amendment because the restriction is on commercial speech as is “narrowly tailored to advance the significant government interest in reducing unwanted sales calls.” Judge Damian further determined that the FTSA is not unconstitutionally vague, claiming that defendant SDC’s argument was unpersuasive and that “the lack of a definition for the term “automated system” is not grounds to invalidate the entire statute.”
The Southern District of Florida’s denial of defendant SDC’s motion to dismiss was issued on Thursday.
The plaintiffs are represented in the litigation by Shamis & Gentile, Hiraldo PA, Edelsberg Law, and Normand. SmileDirectClub was represented by Benesch, Friedlander, Coplan & Aronoff and GrayRobinson.