October 5, 2022

An order was filed within the Southern District of Florida on Thursday denying the movement of defendant SmileDirectClub, LLC (SDC), to dismiss a category motion grievance filed in opposition to them by Alejandro Borges.

The category motion was introduced beneath the Florida Phone Solicitation Act (FTSA). Plaintiff Borges alleges that as a world orthodontic system firm, defendant SDC “engages in telephonic gross sales calls to shoppers with out securing their prior categorical written consent” in violation of the FTSA.

Borges contends that defendant SDC despatched him two unsolicited textual content messages selling their items and providers in July of 2021 and did the identical to different people residing in Florida with out their categorical written consent. The unsolicited communications have been allegedly despatched by SDC utilizing “a pc software program system that mechanically chosen and dialed Plaintiff’s and the Class members’ phone numbers.” The plaintiff’s preliminary grievance sought statutory damages and an order stopping the Defendant from making further gross sales calls with out the categorical written consent of the person.

The go well with was met with defendant SDC’s problem that the FTSA is unconstitutional. Particularly, SDC argued that the FTSA violates the primary modification by inserting a content-based restriction on speech and that it violates the Due Course of Clause of the fourteenth modification since it’s unconstitutionally obscure and doesn’t specify what an “automated system for the choice or dialing of phone numbers,” is.

The Court docket denied SDC’s movement to dismiss and defined that SDC “neither contests the sufficiency of the factual allegations nor the plausibility of the claims as alleged within the grievance.”

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Choose Melissa Damian dominated that the plaintiff had sufficiently said a declare beneath the FTSA and that the FTSA was not in violation of the primary modification as a result of the restriction is on business speech as is “narrowly tailor-made to advance the numerous authorities curiosity in lowering undesirable gross sales calls.” Choose Damian additional decided that the FTSA will not be unconstitutionally obscure, claiming that defendant SDC’s argument was unpersuasive and that “the dearth of a definition for the time period “automated system” will not be grounds to invalidate the complete statute.”

The Southern District of Florida’s denial of defendant SDC’s movement to dismiss was issued on Thursday.

The plaintiffs are represented within the litigation by Shamis & Gentile, Hiraldo PA, Edelsberg Regulation, and Normand. SmileDirectClub was represented by Benesch, Friedlander, Coplan & Aronoff and GrayRobinson.