IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA 

ARTHUR HERNANDEZ, individually and on 

behalf of others similarly situated,

Plaintiff,

v.

COUNTER BRANDS, LLC d/b/a 

Beautycounter, 

Defendant.

Case No. 9:22-cv-81450-DMM-WM

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND 

INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF

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I. INTRODUCTION

In his threadbare Complaint (see Dkt. 1), Plaintiff alleges, in a conclusory fashion and without 

any factual support, that Counter Brands, LLC d/b/a Beautycounter (“Beautycounter”) violated the 

federal Telephone Consumer Protection Act (“TCPA”) and two Florida state analog statutes: the 

recently-amended Florida Telephone Solicitation Act (“FTSA”) and the Florida Telemarketing Act 

(“FTA”). These claims rest squarely on ill-described text messages allegedly sent to Plaintiff’s 

cellphone without his consent by someone using either: (a) an “automatic telephone dialing system” 

(a.k.a. “ATDS”) as defined by the TCPA (i.e., Counts I and II); or (b) an “automated system for the 

selection or dialing of telephone numbers” in purported violation of the FTSA—a term which, unlike 

its federal counterpart, has no definition in the statute itself or a commonly-accepted interpretation in

the courts (i.e., Count III). However, Plaintiff does not articulate any theory of liability for his 

unnumbered FTA count, which seemingly was tacked on as an afterthought. In any event, merely 

regurgitating the legal elements of a cause of action without supporting facts, like Plaintiff did here, 

does not satisfy federal pleadings standards and cannot survive dismissal under the Federal Rules in 

this, or any, case. Thus, the Court should dismiss the entire Complaint for at least the following reasons: 

First, as a threshold matter, the entire Complaint should be dismissed under Fed. R. Civ. P. 

12(b)(1) for lack of federal subject matter jurisdiction because Plaintiff does not allege facts 

demonstrating all the requisite elements for standing under Article III of the U.S. Constitution, 

consistent with Eleventh Circuit’s holding in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019). 

Second, the entire Complaint should also be dismissed under Fed. R. Civ. P. 12(b)(6), as 

Plaintiff fails to state a claim for relief under the invoked statutes or to plead sufficient facts supporting 

such claims. With respect to Counts I and II, it is well settled that, to state any TCPA claim and avoid 

dismissal, Plaintiff must first allege sufficient, specific non-conclusory facts supporting a plausible 

inference that Beautycounter: (i) itself, and not an unidentified third party, took the steps necessary to 

“physically” send the text messages at issue, as is required to plead direct TCPA liability; or (ii) had 

an agency relationship with or “control” over any third party that did, as is required to plead vicarious 

TCPA liability. Plaintiff failed to do so. Courts in this Circuit and elsewhere routinely dismiss such 

bald TCPA claims at the pleadings stage in their entirety on these bases alone. This Court should too.

Third, Counts I and IIshould also be dismissed under Rule 12(b)(6) because Plaintiff does not 

plead any facts suggesting a device fitting the TCPA’s definition of an ATDS was used in this case.

Indeed, Plaintiff merely parrots the statutory language without factual support, which is woefully 

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insufficient to allege any claim in federal court, let alone a plausible TCPA ATDS claim. Further, 

Plaintiff’s request for treble damages in Count II—which is technically not a standalone claim but 

merely an available remedy under the statute—should be dismissed under Rule 12(b)(6) for the 

additional reason that Plaintiff pleads no facts suggesting a “knowing” or “willful” violation occurred. 

Fourth, Plaintiff’s FTSA claim in Count III, while equally devoid of factual support and thus 

ripe for dismissal for that reason alone, suffers from an incurable flaw—i.e., Section 8(a) of the FTSA1

is facially unconstitutional on several levels. Specifically, Section 8(a) violates: (1) the dormant 

Commerce Clause of the U.S. Constitution because it has the practical effect of regulating commerce 

occurring wholly outside of Florida; (2) the due process clause of the Fifth Amendment to the U.S. 

Constitution and Florida’s equivalent protections because it is unconstitutionally vague is several ways; 

and/or (3) the First Amendment to the U.S. Constitution and Florida’s coextensive protections because 

it represents an unconstitutional content-based speech restriction that cannot survive strict (or 

intermediate) scrutiny review. Any one of these defects is fatal to Count III under Rule 12(b)(6). 

Fifth, beyond its multiple unconstitutional infirmities, Count III should also be dismissed 

under Rule 12(b)(6) because Plaintiff does not plead any facts supporting an inference that a FTSAprohibited “automated system” was used to send the alleged texts, let alone that Beautycounter did so, 

and relies instead on bald conclusions and speculation, which is insufficient. A district court in this 

Circuit recently dismissed a similarly-defective FTSA complaint on this basis. See Davis v. Coast 

Dental Servs., LLC, 2022 WL 4217141, at *2 (M.D. Fla. Sept. 13, 2022). This Court should too here. 

Lastly, Plaintiff fail to articulate any theory of liability for his FTA unnumbered count. 

II. SUMMARY OF PLAINTIFF’S ASSERTED CLAIMS

In Counts I and II of the Complaint (see ¶¶ 55-66), Plaintiff seeks relief under Section 227(b) 

of the TCPA, which prohibits “mak[ing] any call” to a cell phone using an ATDS (or using “an artificial 

or prerecorded voice,” which does not apply to text messages2

) without the prior express consent of 

the called party. 47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(2). In other words, to avoid 

dismissal for the alleged texts here, Plaintiff must plausibly allege that: (1) Beautycounter called his 

cellular telephone number; (2) without his prior “express consent”; (3) using an ATDS (sometimes 

called an “autodialer”). See, e.g., Martin v. Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1308 (S.D. 

1 See Fla. Stat. § 501.059(8)(a), hereafter referred to as “Section 8(a)” unless otherwise specified.

2 See, e.g., Eggleston v. Reward Zone USA LLC, 2022 WL 886094, at *6 (C.D. Cal. Jan. 28, 2022) 

(holding that “text messages do not constitute a ‘voice’ under the TCPA” for a Section 227(b) claim).

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Fla. 2016); see also Edelsberg v. Vroom, Inc., 2018 WL 1509135, at *3 (S.D. Fla. Mar. 27, 2018)

(recognizing texts qualify as “calls” under the TCPA).3 An ATDS is expressly defined as “equipment 

which has the capacity (A) to store or produce telephone numbers to be called, using a random or 

sequential number generator [or “ROSNG”]; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). 

In Count III of the Complaint (see ¶¶ 67-72), Plaintiff seeks relief under Section 8(a) of the 

FTSA, which was recently amended and has since spawned a new cottage industry of FTSA class 

actions being filed in this State by opportunistic plaintiffs. In particular, on June 28, 2021, Florida 

Senate Bill 1120, which amended the FTSA to add various new requirements relating to the use of an 

“automated system” to make “telephonic sales calls” to consumers, including certain written consent 

requirements and a private right of action, was presented to the Governor, who signed it into law on 

June 29, 2021. On July 1, 2021, those amendments took effect, providing in pertinent part that “[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” and, like the TCPA, allowing for statutory and treble damages. Fla. Stat. 

§§ 501.059(8)(a) & (10). “Telephonic sales call” is defined as “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 such purposes.” Id. § (1)(j). Critically, the statute does not define the phrase “an automated 

system for the selection or dialing of telephone numbers,” among other key definitional omissions.

Lastly, in an unnumbered count (see ¶¶ 73-76), Plaintiff seeks relief under the Florida 

Telemarketing Act, Fla. Stat. § 501.601, et seq. While the FTA does prohibit certain “Unlawful Acts 

and Practices” by telemarketers (see § 501.616), Plaintiff does not articulate a theory of FTA liability.

III. APPLICABLE LEGAL STANDARDS OF REVIEW

Rule 12(b)(1) provides that a complaint is properly dismissed where there is a lack of federal 

subject matter jurisdiction. See, e.g., Elend v. Basham, 471 F.3d 1199, 1205, 1208 (11th Cir. 2006). 

Article III of the U.S. Constitution confers on the federal judiciary the power to adjudicate only certain 

cases and controversies. To establish Article III standing and avoid dismissal on this basis, Plaintiff 

must plausibly allege that: (i) he suffered a concrete and particularized “injury in fact,” (ii) there is a 

3 Autodialed calls or texts that constitute telemarketing or an advertisement require prior express 

written consent. See, e.g., Reardon v. Uber Techs., Inc., 115 F. Supp. 3d 1090, 1094 (N.D. Cal. 2015). 

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causal connection between his injury and the conduct complained of (i.e., causation or “traceability”), 

and (iii) his injury must be capable of being redressed by a favorable decision (i.e., “redressability”).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As the party invoking federal jurisdiction 

here, Plaintiff “bears the burden of establishing [all of] these elements.” Id. at 561.

Rule 12(b)(6) provides for dismissal where a plaintiff fails to plead a claim for relief. A 

“formulaic recitation of the elements” fails to meet the requisite pleading standard. Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). A “bare assertion” and “conclusory allegation[s]” also will not suffice. Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). Instead, Plaintiff must “include factual allegations 

for each essential element of his [] claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 

(11th Cir. 2012). But “[c]onclusory allegations, unwarranted factual deductions or legal conclusions 

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 

(11th Cir. 2003); see also Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). Where

(as here) a statute upon which a claim is based is unconstitutional, dismissal under Rule 12(b)(6) is 

appropriate. See Harris v. Mex. Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009).

IV. ARGUMENT

A. Entire Complaint Should Be Dismissed Under Rule 12(b)(1) for Lack of Subject 

Matter Jurisdiction Because Plaintiff Lacks Article III Standing.

As a threshold matter, the Complaint should be dismissed under Rule 12(b)(1) because Plaintiff 

does not satisfy any of the requisite elements for Article III standing for multiple reasons:

In Salcedo, the Eleventh Circuit could not have been more clear: “[t]o establish standing, an 

injury in fact must be concrete.” 936 F.3d at 1167. A concrete injury must actually exist, “as opposed 

to being hypothetical or speculative.” Id. This depends “on the qualitative nature of the injury, 

regardless of how small the injury may be[,]” rather than the number of communications received. Id. 

at 1172. Thus, mere wasted time, the unavailability of a phone for personal use during the time the text 

message was being received, and intrusion upon his privacy are not sufficient harms to constitute an 

injury-in-fact under Article III. Id. at 1167, 1172. Courts have consistently apply this qualitative 

approach to standing under both the TCPA and FTSA. See, e.g., Frater v. Lend Smart Mortg., LLC, 

2022 WL 4483753, at *3 (S.D. Fla. Sept. 27, 2022) (no Article III standing where Plaintiff received 

two texts and only harm alleged was being “bombarded” by texts, “annoyance”, “aggravation” and 

“wasted time.”); Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1069 (S.D. Fla. 2020) 

(dismissing on this basis where the plaintiff failed to allege a concrete injury from receipt of five texts).

Here, Plaintiff alleges that his receipt of at least four text messages caused him “actual harm, 

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including invasion of privacy, aggravation, annoying, intrusion on seclusion, trespass, and 

conversion[,]” and “also inconvenienced Plaintiff and caused disruption to his daily life.” Dkt. 1, ¶¶ 

41, 42. However, these allegations are precisely the kind that the Eleventh Circuit in Salcedo found did 

not constitute an injury in fact. See 936 F.3d at 1171. Moreover, the only other injury Plaintiff claims 

to have suffered is that “Defendant’s text messages took up memory on Plaintiff’s cellular phone” and

in that regard, asserts “[t]he cumulative effect of unsolicited text messages like Defendant’s poses a 

real risk of ultimately rendering the phone unusable for other purposes as a result of the phone’s 

memory being taken up.” Dkt. 1, ¶ 43. In other words, Plaintiff does not allege that the receipt of texts 

at-issue actually rendered his phone unusable, but that if he continues to receive texts there is a “risk” 

that his phone may “ultimately” become unusable for want of memory. See id.. These allegations fail 

because, again, to be concrete, an injury must not be “hypothetical or speculative.” Salcedo, 36 F.3d at 

1167. In short, Plaintiff’s contention that his phone may become unusable in the future is precisely the 

kind of hypothetical and speculative harm that does not amount to a concrete injury in fact. See id.

Additionally, courts have held that where a plaintiff fails to allege sufficient plausible facts 

supporting direct or vicarious liability under the TCPA, he or she also fails to meet the requisite Article 

III causation and redressability elements. See, e.g., Hicks v. Alarm.com, 2020 WL 9261758, at *5 (E.D. 

Va. Aug. 6, 2020) (holding “[b]ased on the deficiencies identified under Rule 12(b)(6), Plaintiff also 

fails to properly plead causation and redressability” for Article III standing); Barker v. Sunrun Inc.,

2019 WL 1983291, at *3 (D.N.M. Apr. 29, 2019) (ruling similarly). As shown in the next section, 

Plaintiff fails to plead such facts for his TCPA and his state law claims. Therefore, Plaintiff fails to 

meet all three Article III standing elements, which further supports dismissal under Rule 12(b)(1).

B. Counts I and II Should Be Dismissed Under Rule 12(b)(6) Because Plaintiff Fails 

to Allege Facts Supporting a Claim Under Section 227(b) of the TCPA.

As demonstrated below, Plaintiff’s TCPA claim in Counts I and II is fatally deficient under 

federal pleading standards and cannot survive dismissal under Rule 12(b)(6) for several reasons:

1. Plaintiff Fails to Plausibly Allege Direct TCPA Liability.

To begin, Plaintiff’s TCPA claim fails because he does not plead sufficient non-conclusory 

facts supporting a plausible theory of TCPA liability. To be liable under the TCPA, “the person must 

either (1) directly make the call, or (2) have an agency relationship with the person who made the 

call.” Pascal v. Agentra, LLC, 2019 WL 5212961, at *2 (N.D. Cal. Oct. 16, 2019) (emphasis added) 

(quoting Abante Rooter & Plumbing v. Farmers Grp., Inc., 2018 WL 288055, at *4 (N.D. Cal. Jan. 4, 

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2018)).4 As to the former, direct TCPA liability applies only to persons or entities that “initiate” 

telemarketing calls, and “initiate” in this context means to “physically place” a phone call. Sheski v. 

Shopify (USA) Inc., 2020 WL 2474421, at *2 (N.D. Cal. May 13, 2020) (citing In re Dish Network, 

LLC, 28 FCC Rcd. 6574, 6583 ¶ 26 (2013)); accord Grant v. Regal Auto. Grp., Inc., 2020 WL 

8254283, at *7 (M.D. Fla. July 30, 2020), report and rec. adopted, 2020 WL 8224838 (Sept. 29, 2020). 

Thus, federal district courts have routinely dismissed direct TCPA liability claims at the 

pleadings stage that, like Plaintiff’s, lack sufficient factual allegations demonstrating the defendant 

actually “initiated” the calls at issue in the sense of “tak[ing] the steps necessary to physically place” 

a call. Sheski, 2020 WL 2474421, at *2-4 (dismissing where the plaintiff did not allege facts supporting 

direct liability) (emphasis added) (quoting In re Dish Network, LLC, 28 FCC Rcd. at 6583 ¶ 26).

“Merely alleging that [a defendant] ‘made’ or ‘initiated’ [a] call”—which is all Plaintiff does here at 

best—“is not sufficient to allege a [direct] TCPA [liability] claim” or to avoid dismissal under Rule 

12(b)(6). Frank v. Cannabis & Glass, LLC, 2019 WL 4855378, at *2 (E.D. Wash. Oct. 1, 2019). See 

also Carson v. Home Depot, Inc., 2022 WL 2954327, at *5 (N.D. Ga. July 26, 2022) (dismissing with 

prejudice on direct liability grounds where the defendant itself did not send the at-issue text messages).

Here, Plaintiff alleges no facts which would nudge his claim that Beautycounter itself was 

responsible for physically sending texts at issue from possible to plausible. Rather, Plaintiff concludes 

that, on various days, he “received a text from Defendant” or “Defendant sent Plaintiff a text[.]” Dkt. 

1, ¶¶ 33–37. But he does not allege, for example: (i) the phone number from which he received these 

texts, (ii) any basis for his conclusion that the texts originated from numbers belonging to 

Beautycounter or that they are even associated with Beautycounter; or (iii) that the sender of the texts 

identified themselves as being an employee of Beautycounter. Id. Courts regularly dismiss TCPA 

complaints where, as here, plaintiffs fail to allege adequate facts demonstrating that a defendant was 

responsible for directly (i.e., physically) placing the calls or texts at issue. See, e.g., Hirsch v. Lyndon 

S. Ins. Co., 2019 WL 5110622, at *6 (M.D. Fla. June 7, 2019), report and rec. adopted sub nom., 2019 

4 The FTSA and FTA also contemplate a defendant’s direct and vicarious liability. See Fla. Stat. § 

501.059(8)(a) (“A person may not make or knowingly allow a telephonic sales call to be made [by 

someone else] if such call involves an automated system....”); § 501.603(2) (“‘Commercial telephone 

seller’ means a person who engages in commercial telephone solicitation on his or her own behalf or 

through salespersons.”); § 501.603(11) (“‘Salesperson’ means any individual employed, appointed, 

or authorized by a commercial telephone seller, regardless of whether the commercial telephone seller 

refers to the individual as an agent, representative, or independent contractor, who attempts to solicit 

or solicits a sale on behalf of the commercial telephone seller.”) (all emphases added). 

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WL 8370863 (Aug. 6, 2019), aff’d, 805 F.App’x 987 (11th Cir. 2020) (dismissing where plaintiff was 

“attempting to impose liability on Defendants for countless calls made throughout the United States 

... without alleging who made the calls”); Smith v. Direct Building Supplies, LLC, 2021 WL 4623275, 

at *3 (E.D. Pa. Oct. 7, 2021) (dismissing where plaintiff “provide[d] no details specifying how 

[plaintiff] knew that [defendant] in fact placed these calls” and holding that “[a]t the pleadings stage, 

plaintiff must allege facts to support his conclusion or belief that defendant is the party that [physically] 

made the calls” at issue) (citing Scruggs v. CHW Grp., Inc., 2020 WL 9348208, at *10 (E.D. Va. Nov. 

12, 2020)); Childress v. Liberty Mut. Ins. Co., 2018 WL 4684209, at *3 (D.N.M. Sept. 28, 2018)

(dismissing on this basis and holding that “[t]he mere conclusion that the [ATDS] responsible for the 

call belonged to [d]efendant, without any factual allegations to support that conclusion, does not 

constitute a factual allegation that, if proven, would establish that [d]efendant ‘made,’ or ‘physically 

placed’ the call to [p]laintiff’s cell phone”). This Court should reach the same conclusion here. 

Plaintiff may argue that simply referencing Beautycounter’s products in the at-issue texts is 

sufficient to plead direct TCPA liability. Not so. It is well-accepted that merely offering a defendant’s

goods or services for sale or mentioning its name on a call or in a text does not mean the defendant 

itself physically initiated those calls or texts for direct TCPA liability, standing alone. See, e.g., Bennett 

v. Celtic Ins. Co., 2022 WL 865837, at *3 (N.D. Ill. Mar. 23, 2022) (dismissing, holding that: “Initiation 

[for direct liability] occurs when the defendant physically places the calls or is ‘so involved in’ their 

placement that it essentially made them itself. [] [A] defendant ‘generally does not initiate calls [within 

the meaning of the TCPA] placed by third-party telemarketers,’ even if the third party had acted on its 

behalf.”) (citing, inter alia, Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765, 771 (N.D. Ill. 

2014) (internal punctuation omitted)); Wick v. Twilio Inc., 2017 WL 2964855, at *3 (W.D. Wash. July 

12, 2017) (“The FCC recognizes that merely offering a good or service for sale does not mean that a 

retailer initiates the marketing calls for that product”); Meeks v. Buffalo Wild Wings, Inc., 2018 WL 

1524067, at *1-5 (N.D. Cal. Mar. 28, 2018) (finding no direct TCPA liability even though texts 

identified defendant and included link to defendant’s website); Scruggs, 2020 WL 9348208, at *7-10 

(conclusory allegations the caller stated he/she was “associated with” defendant and identified the 

defendant by name was insufficient to plead direct or vicarious TCPA liability). In short, a text merely 

saying “Beautycounter” or selling its products is of no moment and does not support direct liability. 

In sum, Plaintiff’s conclusory allegations fall far short of satisfying federal pleading standards.

Because he does not plausibly allege that Beautycounter itself (and not some third party) actually 

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physically made the calls at issue, this Court should follow the vast weight of applicable authority cited 

above holding that such deficient claims should be dismissed under Rule 12(b)(6), and do so here.

2. Plaintiff Fails to Plausibly Allege Vicarious TCPA Liability.

The Complaint also fails to plausibly allege vicarious liability under the TCPA. Vicarious 

liability cannot be casually pled; rather, courts uniformly require plaintiffs to meet a certain pleading 

threshold. Indeed, vicarious liability in any context requires a special consensual relationship between 

a principal and an agent. See Restatement (3d) of Agency (“Restatement”) § 1.01, cmt. c (“[T]he 

concept of agency posits a consensual relationship in which one person, to one degree or another or 

respect or another, acts as a representative of or otherwise acts on behalf of another person with power 

to affect the legal rights and duties of the other person.”); see also Green v. U.S., 700 F. Supp. 2d 1280, 

1301 (M.D. Fla. 2010), aff’d, 418 F. App’x 862 (11th Cir. 2011) (applying Restatement § 1.01). This 

requires “more than mere passive permission; it involves request, instruction, or command.” Linlor v. 

Five9, Inc., 2017 WL 5885671, at *3 (S.D. Cal. Nov. 29, 2017). And “[t]hough ‘the precise details of 

the agency relationship need not be pleaded to survive a motion to dismiss, sufficient facts must be 

offered to support a reasonable inference that an agency relationship existed.’” Meeks v. Buffalo Wild 

Wings, Inc., 2018 WL 1524067, at *5 (N.D. Cal. Mar. 28, 2018) (citation omitted).

Applying these principles, courts routinely dismiss TCPA claims premised on vicarious 

liability at the pleadings stage where, as here, the plaintiff fails to allege sufficient facts establishing an 

agency relationship with or control over a purported agent. See, e.g., Hirsch, 2019 WL 5110622, at *6 

(holding the FCC “has explicitly rejected a theory of liability under the TCPA against the seller of a 

product for telephone calls marketing that product absent an agency or similar relationship between 

the seller and the caller”); Abramson v. 1 Glob. Capital, LLC, 2015 WL 12564318, at *3 (S.D. Fla. 

Sept. 23, 2015) (dismissing where “allegations of vicarious liability [we]re conclusory in nature”).5

 

Dismissal of Counts I and II is also warranted on this basis. The only relevant allegation that 

even touch on Beautycounter’s control of some “agent” for vicarious liability is that “Defendant – or 

third parties directed by Defendant – used equipment having the capacity to dial numbers without 

human intervention to send text messages to the cellular telephones of Plaintiff and the other members 

5 See also In re: Monitronics Int’l, Inc., TCPA Litig., 223 F. Supp. 3d 514, 520 (N.D.W.Va. 2016), 

aff’d sub nom. 885 F.3d 243 (4th Cir. 2018) (“[I]n order to prove actual agency, the plaintiff must show 

that the defendant controlled or had the right to control the purported agent and, more specifically, the 

manner and means of the solicitation campaign that was conducted.”) (emphasis added).

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of the Class defined below.” Dkt. 1, ¶ 57. But Plaintiff does not allege any facts supporting a plausible 

inference that Beautycounter directed or controlled these third parties’ conduct, as is required to plead 

actual agency. See, e.g., Linlor, 2017 WL 5885671, at *3. Nor does Plaintiff allege that Beautycounter 

did or said anything to him, or that he relied on such actions or statements to his detriment, as is required 

to plead apparent authority. Id. Therefore, to the extent he was attempting to allege vicarious TCPA 

liability (and as he does not sufficiently alleges direct liability), Counts I and II should also be dismissed 

pursuant to Rule 12(b)(6) for this reason, as well. See, e.g., Abramson and Hirsch, supra.6

3. Plaintiff Fails to Allege Any Facts Suggesting ATDS Use.

Plaintiff’s TCPA claims in Counts I and II further fail because the Complaint is devoid of facts 

supporting Plaintiff’s ATDS allegations. On this front, the Supreme Court’s recent decision in 

Facebook v. Duguid held that: (i) the TCPA “requires that in all cases, whether storing or producing 

numbers to be called, the equipment in question must use a random or sequential number 

generator”; and (ii) a ROSNG is “a necessary feature” of any ATDS. 141 S. Ct. 1163, 1170, 1173 

(2021) (emphasis added). See also Anyaebunam v. ARS Account Resolution, LLC, et al., 2021 WL 

4775146, at *3 (D.N.J. Oct. 13, 2021) (“The use of such a device is essential to a TCPA claim.”) 

(emphasis added). Thus, the majority of district courts in and beyond the Eleventh Circuit applying 

Facebook—including in this District—have dismissed conclusory ATDS claims at the pleadings stage 

that, like Plaintiff’s, lack facts supporting an inference that a ROSNG was actually used to place the 

at-issue calls. See, e.g., Evans v. Ocwen Loan Servicing, LLC, 2021 WL 7366534, at *2 (S.D. Fla. Oct. 

21, 2021) (granting motion to dismiss ATDS claim with prejudice where plaintiff did “not allege that 

the Defendant's dialer machine creates numbers to be called using a random number generator.”) 

(emphasis in original); Eggleston, 2022 WL 886094, at *3-4 (ruling similarly, and collecting cases).

7

 

As applied here, the Complaint contains no factual details supporting Plaintiff’s conclusion 

that an ATDS was involved in sending the alleged texts. See, e.g., Dkt. 1, ¶¶ 33–38. Rather, Plaintiff’s 

6 As the FTSA and FTA also contemplate a defendant’s direct and vicarious liability (see fn. 4, supra), 

and given the dearth of binding (or even persuasive) Florida case law on those two statutes, this Court 

should apply closely-analogous federal TCPA authorities here and likewise dismiss Plaintiff’s FTSA 

and FTA claims in their entirety on these same bases, as well. See also Martinolich v. Golden Leaf 

Mgmt., Inc., 786 So.2d 613, 615 (Fla. 3d DCA 2001) (“Florida courts often look to federal decisions 

as a guide to interpreting state statutes that are similar to federal ones.”) (citations omitted). 

7 See also Perrong v. MLA Int'l, Inc., 2021 WL 3036462, at *2 (M.D. Fla. July 2, 2021) (applying 

Facebook and denying motion for default judgment due to failure to state an ATDS claim where 

plaintiff “fail[ed] to allege ‘the random nature of the automation device.’”)

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allegations on this front simply parrot the statutory language (see, e.g., id. ¶¶ 47, 57, 59, 70, 71), which 

has never sufficed to state a plausible ATDS claim in the Eleventh Circuit—even before Facebook.

See, e.g., Padilla v. Whetstone Partners, LLC, 2014 WL 3418490, at *2 (S.D. Fla. 2014) (dismissing 

where plaintiff “fail[ed] to explain the circumstances that suggest Defendant used” an ATDS); Mesa 

v. Am. Express Educ. Assurance Co., 2017 WL 2212147, at *5 (S.D. Fla. May 18, 2017) (dismissing 

where plaintiff pleaded insufficient facts supporting ATDS allegations); Turizo v. Jiffy Lube Int’l, Inc., 

2019 WL 4737696, at *3 (S.D. Fla. Sept. 27, 2019) (allegations merely “echoing statutory language 

defining an ATDS” are insufficient to allege ATDS use). At best, Plaintiff merely alleges, in a 

conclusory fashion, that Beautycounter “used equipment having the capacity to dial numbers without 

human intervention to send text messages[.]” Id. ¶ 57. But the “capacity” to dial without human 

intervention is not the touchstone of an ATDS after Facebook. And as the authorities above show, a 

plaintiff cannot just speculate on ROSNG use without providing supporting facts. Since Plaintiff does 

not allege any such facts in his Complaint, Counts I and II must be dismissed on this basis, as well. 

4. Plaintiff Fails to Allege Facts Suggesting a Knowing or Willful Violation.

Plaintiff’s separate Count II, which seeks treble damages for a purported “Knowing and/or 

Willful Violation of the TCPA” based on the same deficient ATDS allegations in Count I (see Dkt. 1, 

¶¶ 62-66), must be dismissed for the simple reason that Plaintiff’s allegations in this regard—as to the 

TCPA as well as the FTSA—are entirely conclusory and unsupported with facts (see, e.g., Dkt. 1 ¶¶ 

60, 63-65, 71). Such bald allegations plainly do not meet federal pleading standards and should be 

dismissed under Rule 12(b)(6), as well. See, e.g., Canary v. Youngevity Int’l, Inc., 2019 WL 1275343, 

at *9 (N.D. Cal. Mar. 20, 2019) (dismissing claim for willful/knowing TCPA violations on this basis). 

C. Count III Should Be Dismissed Under Rule 12(b)(6) Because Section 8(a) of the 

FTSA Is Facially Unconstitutional for Several Reasons.

Initially, Count III fails because Section 8(a) is facially unconstitutional on multiple levels.

1. Section 8(a) Violates the Dormant Commerce Clause.

“The Commerce Clause grants to Congress the power to regulate interstate and foreign 

commerce.” Fla. Transp. Servs., Inc. v. Miami-Dade Cty., 703 F.3d 1230, 1243 (11th Cir. 2012) (citing 

U.S. Const. art. I, § 8, cl. 3). “[T]his affirmative grant of authority to Congress also encompasses an 

implicit or ‘dormant’ limitation on the authority of the States to enact legislation affecting interstate 

commerce.” Healy v. Beer Inst., Inc., 491 U.S. 324, 326 n.1 (1989). In considering whether a law 

violates the Clause, the Court must consider (1) whether the state law “directly regulates or 

discriminates against interstate commerce, or has the effect of favoring in-state economic interests,” 

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and (ii) whether the state law “unduly burden[s] interstate commerce.” Fla. Transp., 703 F.3d at 1243–

44. Moreover, a state’s power to enact legislation is limited and “[a]ny attempt ‘directly’ to assert 

extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent 

limits of the State’s power.” Edgar v. MITE Corp., 457 U.S. 624, 643 (1982). Thus, “[s]tatutes that 

have the practical effect of controlling conduct beyond the boundaries of the state [like the FTSA] are 

‘invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.’” 

TelTech Sys., Inc. v. McCollum, 2009 WL 10626585, at *8 (S.D. Fla. July 16, 2009) (citing Healy).

McCollum is instructive. There, a Florida statute prohibiting persons from causing false caller 

ID information to be displayed to call recipients “had the practical effect of regulating commerce that 

occur[red] wholly outside the state of Florida” and violated the Commerce Clause because it “[wa]s 

impossible for [the callers] to determine whether the recipient of a call [wa]s in Florida” and “[t]he 

logical consequence of this impossibility [wa]s that [the callers] [we]re unable to offer Caller ID 

spoofing services anywhere in the country without risking criminal liability under Florida's statute.” 

Id. at *8. Other courts have ruled similarly when striking down analogous state call statutes.8

The same logical consequence follows from the FTSA, which defines “telephone solicitor” as 

“a natural person, firm, organization, partnership, association, or corporation, or a subsidiary or affiliate 

thereof, doing business in this state, who makes or causes to be made a telephonic sales call.” Fla. 

Stat. § 501.059(1)(i) (emphasis added). “Doing business in this state” includes “businesses that conduct 

telephonic sales calls from a location in Florida or from other states or nations to consumers located in 

Florida.” Id. § (1)(e). There is also a rebuttable presumption that a call “made to any area code in this 

state is made to a Florida resident or to a person in this state at the time of the call.” Id. § (8)(d).

Applying McCollum to the FTSA, “the increased use of mobile phones and call forwarding” 

makes it impossible for callers to be certain that the party they are calling is not located in Florida. 

2009 WL 10626585, at *2. For example, a business located in California might place a “telephonic 

sales call” using an “automated system” to a phone number with a New York area code, but the 

recipient may be located or reside in Florida. That business would be liable for violating the FTSA 

8 See, e.g., also Booth v. Appstack, Inc., 2015 WL 1466247, at *14-16 (W.D. Wash. Mar. 30, 2015) 

(declining to certify class under Washington statute for similar reasons); SpoofCard, LLC v. Burgum, 

499 F. Supp. 3d 647, 656 (D.N.D. 2020) (finding state anti-spoofing calling statute violated the 

dormant Commerce Clause because it was impossible to determine the location of the recipient); Re 

Tech Sys., Inc. v. Barbour, 866 F. Supp. 2d 571, 577 (S.D. Miss. 2011), aff’d sub nom. 702 F.3d 232 

(5th Cir. 2012) (striking similar state anti-spoofing law for similar reasons on this basis). 

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even if it had no way of determining the recipient’s actual location or residence. Id. at *8. Similarly, 

because the FTSA presumes all calls to Florida area codes are made to Florida residents or individuals 

located in-state, businesses must presume all calls to Florida area codes are subject to the FTSA, even 

if the recipient might actually receive the call or even live in another state. Consequently, the FTSA 

makes it impossible for businesses to make sales calls to consumers anywhere in the country without 

risk of liability under this Florida statute, effectively requiring those businesses to comply with the 

FTSA for all such calls everywhere, which undoubtedly violates the dormant Commerce Clause.9 

In fact, the Florida legislature itself predicted this potential extra-territorial consequence when 

recently amending Section 8(a) as well, but did nothing to correct it. See Florida Senate Bill Analysis 

and Fiscal Impact Statement for CS/SB 1120 (hereafter “FIS”) at 10, available at 

https://www.flsenate.gov/Session/Bill/2021/1120/Analyses/2021s01120.rc.PDF (last visited Dec. 5, 

2022) (citing McCollum and noting: “It is unclear whether the bill’s presumption regarding Florida 

area codes will have an effect on interstate commerce to an extent that has the practical effect of 

regulating commerce outside of Florida’s borders.”). Unfortunately, this prediction came true—the 

FTSA violates the Commerce Clause, thus warranting dismissal of Count III. See McCollum, supra. 

2. Section 8(a) is Also Unconstitutionally Vague For Several Reasons.

The Fifth Amendment to the U.S. Constitution (applicable to the states vis-à-vis the Fourteenth 

Amendment) provides that “[n]o person shall ... be deprived of life, liberty, or property, without due 

process of law.” Johnson v. United States, 576 U.S. 591, 595 (2015). This guarantee is violated when 

a law is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or [is] so 

standardless that it invites arbitrary enforcement.” Id. (citation omitted). “When speech is involved, 

rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected 

speech.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253-54 (2012). As the Supreme Court 

9 Importantly, the phrase “doing business in this state” in the FTSA is used only to define the term 

“telephone solicitor.” This suggests the legislature elected to limit the application of some prohibitions 

in the FTSA to “telephone solicitors”—i.e., only to businesses operating in Florida. See, e.g., Fla. Stat. 

§ 501.059(2) (requiring a telephone solicitor to identify him or herself); § 501.059(4) (prohibiting a 

telephone solicitor from making calls to phone numbers on the Do Not Call List). In contrast, the 

automated call provision in Section 8(a) expressly applies to a “person,” not just a telephone solicitor—

i.e., no “person” may make or knowingly allow a telephonic sales call to be made through an automated 

system without the express written consent of the called party. Fla. Stat. § 501.059(8)(a). But “person” 

is not defined in the statute or otherwise limited to those doing business in or located in Florida. Thus, 

on its face, the Section 8(a) does not appear to be limited to calls made or received within the State, 

which merely underscores is extra-territorial reach and compounds the Commerce Clause violation.

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aptly held, “a vague law is no law at all.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019).10 

In this regard, the FTSA prohibits telephonic sales calls made using “an automated system for 

the selection or dialing of telephone numbers or the playing of a recorded message[.]” Fla. Stat. § 

501.059(8)(a). However, Section 8(a) does not define this critical phrase or the key words in it. Worse, 

the FTSA’s statutory language and legislative history have used various terms to describe the type of 

technology regulated. For example, the legislative history uses the phrases “automated machine,” 

“automated dialer,” “automatic telephone dialing system” (which is the TCPA’s terminology) and 

“autodialer” interchangeably without consideration to possible different meanings, often conflating 

them into a single “technology.” FIS at 1-2. Further, prior to the recent amendments, the FTSA used 

different phrases throughout, even in the same sections, to describe covered technology. See Fla. Stat. 

§ 501.059(8)(a)-(b) (2018). Thus, it is completely unclear what technology constitutes an “automated 

system,” it is impossible for callers to know whether they are using equipment regulated by the FTSA 

or if they must comply with the FTSA’s requirements, and they can only guess at their peril as to what 

dialers are egal. Under the TCPA, businesses had to play this guessing game for years as courts were 

deeply split as to whether certain dialers were an ATDS until the Supreme Court intervened.11 Section 

8(a) now unleashes the same uncertainty, it is open to inconsistent judicial interpretations and arbitrary 

enforcement, and its unmitigated existence threatens to chill protected speech. 

Moreover, as noted above, it is unclear whether Section 8 applies to called parties who are just 

visiting Florida. On its face, it prohibits any “person”—not just people or businesses doing business in 

Florida—from making automated calls without first obtaining consent. Fla. Stat.§ 501.059(8)(a). The 

statutory text does not expressly limit its application to calls received by Florida residents or calls made 

by Florida businesses or those doing business in the state. See fn. 9, supra. Thus, foreign companies 

are left to guess whether they might be subject to the FTSA’s steep statutory damages if they have 

unwittingly call or text one of their customers vacationing in Florida or they may have to avoid making 

such calls altogether (nationwide), given that their customers may be visiting Florida at any given time. 

In sum, Section 8(a) is also unconstitutionally (and indeed hopelessly) vague for multiple 

reasons, which further supports dismissal of Count III of Plaintiff’s Complaint in this case.

10 The due process guarantees of the Fourteenth Amendment are coextensive with those of Florida’s. 

See, e.g., Bonavista Condo. Ass’n, Inc. v. Bystrom, 520 So. 2d 84, 86 (Fla. 3d DCA 1988). 

11 Tellingly, other state autodialing laws provide definitions for covered technology, like the TCPA. 

E.g., N.Y. Gen. Bus. Law § 399-p(a); 815 ILCS 305/5(a); Wash. Rev. Code § 80.36.400(1)(a). 

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3. Section 8(a) Is Also An Unconstitutional Free Speech Restriction.

a) Section 8(a) employs a content-based restriction on speech and, 

therefore, is subject to “strict scrutiny” review.

The First Amendment, also applicable to the States through the Fourteenth Amendment, 

prohibits enacting any laws “‘abridging the freedom of speech.’” Reed v. Town of Gilbert, Ariz., 576 

U.S. 155, 163 (2015). Section 8(a) violates it. In this regard, the government generally cannot “restrict 

expression because of its message, its ideas, its subject matter, or its content.” Barr v. Am. Ass’n of Pol. 

Consultants, Inc., 140 S.Ct. 2335, 2346 (2020) (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 

95 (1972)). A law is considered “content-based” where “a regulation of speech ‘on its face’ draws 

distinctions based on the message a speaker conveys.” Reed, 576 U.S. at 163. This includes any laws 

“singl[ing] out specific subject matter for differential treatment.” Id. at 169. For example, “a law 

banning the use of sound trucks for political speech—and only political speech—would be a contentbased regulation, even if it imposed no limits on the political viewpoints that could be expressed.” Id. 

The United States Supreme Court has already made clear that restrictions on telemarketing 

which discriminate based on the call’s content (which is precisely what the FTSA does) puts those 

restrictions at risk of being unconstitutional. Indeed, in Barr for example, the government-backed debt 

collector exception to the ATDS restrictions of the TCPA (i.e., 47 U.S.C. § 227(b)(1)), which permitted 

automated calls to collect a government debt without consent of the called party where such calls would 

otherwise be unlawful, was deemed an unconstitutional content-based restriction on free speech that 

was not narrowly tailored to serve a compelling interest. 140 S.Ct. at 2346-47. The plurality in Barr

held that a law that differentiates between calls based on whether the call’s content is to collect a 

government debt “is about as content-based as it gets.” Id. The same is true for the FTSA.

Applying these core concepts here, Section 8(a) 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 called party.” Fla. Stat. 

§ 501.059(8)(a) (emphasis added). While the FTSA does not define what this “automated system” is, 

which itself is an unconstitutional defect warranting dismissal as discussed above, a “telephonic sales 

call” is defined as “a telephone call, text message, or voicemail transmission to a consumer for the 

purpose of soliciting a sale of any consumer goods or services....” Fla. Stat. § 501.059(1)(j). Thus, on 

its face, whether a call violates Section 8(a) rests squarely on whether it is a “telephonic sales call” to 

a consumer about consumer(not commercial) goods or services—i.e., one specific type of call, caller 

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and topic, to the exclusion of all others. As such, a debt collection call to a Florida consumer using an 

“automated system” without consent—which is no longer allowed under the TCPA’s automated 

calling restrictions after Barr—or an “automated” political call to a Florida consumer (among other 

topics) is perfectly legal under the FTSA on its face. Yet, a call for the purpose of selling a consumer 

good or service to that same person while using the same “automated system” without consent is illegal 

on its face. As in Barr, “that is about as content-based as it gets.” 140 S.Ct. at 2346-47. 

Moreover, all “[c]ontent-based laws—those that target speech based on its communicative 

content [like Section 8(a) does]—are presumptively unconstitutional” and, as such, are subject to 

“strict scrutiny” review and therefore “may be justified [under the First Amendment] only if the 

government proves that they are narrowly tailored to serve compelling state interests.” Reed, 576 U.S. 

at 163 (emphasis added). See also Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 703 (6th Cir. 2020) 

(holding the lesser “intermediate scrutiny” standard applies only to laws that are content neutral on 

their face; strict scrutiny still applies to all content-based restrictions of any kind) (applying Reed). 

In this regard, well before the recent amendments to Section 8(a), similar state calling statutes 

were struck down by several other federal courts applying strict scrutiny. In 2015, the Fourth Circuit 

invalidated a South Carolina statute prohibiting “unsolicited consumer telephone calls”—the definition 

of which was closely analogous to the FTSA definition of “telephonic sales calls” —and political calls. 

Cahaly v. Larosa, 796 F.3d 399, 402 (4th Cir. 2015). Applying strict scrutiny, that court struck down 

that part of the statute on the basis it was not narrowly tailored and “suffers from underinclusiveness 

because it restricts two types of robocalls—political and consumer—but permits ‘unlimited 

proliferation’ of all other types.” Id. at 406. In 2016, a district court applied strict scrutiny and struck 

down a similar Arkansas state calling statute prohibiting use of an autodialer to place calls offering 

goods or services on the grounds that the statute was underinclusive because “no limit [wa]s placed” 

on other types of unwanted calls “that also may intrude on residential privacy.” Gresham v. Rutledge, 

198 F. Supp. 3d 965, 972-73 (E.D. Ark. 2016) (reasoning that “[i]f the interests of privacy and safety 

warrant restriction of automated calls made for a commercial purpose ..., they also warrant restriction 

of other types of automated calls”). Then, in 2019, the Ninth Circuit applied strict scrutiny when 

striking down another closely-analogous Montana automated call statute. See Victory Processing, LLC 

v. Fox, 937 F.3d 1218, 1227-29 (9th Cir. 2019) (applying Reed). See also Norwegian Cruise Line 

Holdings, Ltd. v. Rivkees, 553 F. Supp. 3d 1143, 1163 (S.D. Fla. 2021) (strict scrutiny applied to a 

content-based speech restriction in a “commercial” statute). In sum, these directly on-point authorities 

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show Section 8(a) is a content-based restriction properly reviewed under “strict scrutiny.” 

b) Section 8(a) cannot survive “strict scrutiny” review.

To survive strict scrutiny review, the State bears the burden to “prove that the restriction 

furthers a compelling interest and is narrowly tailored to achieve that interest.” Arizona Free Enterprise 

Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2817 (2011) (quoting Citizens United v. Fed. 

Election Comm’n, 558 U.S. 310, 340 (2010)). The State cannot meet its heavy burden here. 

Indeed, omitted from the statute itself and its legislative history is any purpose or justification 

at all for limiting the application of Section 8(a) of the FTSA as it is. Rather, the legislative history 

reflects the Florida legislature’s discussion of consumer complaints about unwanted calls in general,

including calls made using an autodialer to play a recorded message and spoofed calls regardless of 

content, as well as unwanted telemarketing calls regardless of how they are made (e.g., manual calls). 

However, the legislative history does not articulate the reason behind regulating only “telephonic sales 

calls”—rather than all calls made using an “automated system for the selection or dialing of telephone 

numbers”—to the exclusion of all other kinds of calls. See FIS at 2. Regardless, even if the Florida

legislature identified a specific motivation behind limiting Section 8(a) as it did—such as concerns 

about protecting “consumer” privacy, preventing “automated” calls to “consumers” generally, or 

eliminating “unwanted” calls even if manual—the law is not narrowly tailored to serve any such 

interest. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of 

the ‘evil’ it seeks to remedy.” Frisby v. Shultz, 487 U.S. 474, 485 (1988) (emphasis added). But Section 

8(a) is not focused on an “exact source of evil,” and it is both underinclusive and overinclusive. 

The Supreme Court has held that legislation that is “underinclusive” or leaves injuries to the 

government’s purported interest unprohibited is not narrowly tailored. Reed, 576 U.S. at 171-72. Thus, 

Section 8(a) is underinclusive, and therefore not narrowly tailored, because it still permits many types 

of unwanted calls. For example, Section 8(a) does not limit any other category of unwanted automated 

calls (like political calls made during election seasons) and still permits unwanted “telephonic sales 

calls” that are not made with an “automated system for the selection or dialing of telephone numbers.” 

Further, unlike the analogous provision of the TCPA, which prohibits “any call” made using an ATDS 

other than emergency calls or with the prior express consent of the called party (see 47 U.S.C. § 

227(b)(1)(A)(iii) (emphasis added)), the FTSA prohibits only automated “telephonic sales calls,” 

which is defined and limited to include only calls to consumers about consumer goods or services. See 

Fla. Stat. § 501.059(1)(j). Yet, calls to consumers or businesses about non-consumer goods or services, 

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or to businesses about consumer goods or services, utilizing the same system are permitted. In short, 

rather than prohibit all automated calls on all topics (except for emergency calls, which are undoubtedly 

a “compelling state interest”) like other statutes do, the FTSA “singles out [telephonic sales calls about 

consumer goods or services] for differential treatment.” Reed, 576 U.S. at 169. See also Victory 

Processing, 937 F.3d at 1229 (similar statute underinclusive where other unwanted calls not restricted).

Finally, in addition to its silence on restrictions for many types of unwanted automated calls 

(which makes it underinclusive), if Section 8(a) was actually motivated by consumer protection from 

unwanted calls, it is simultaneously overinclusive because it unnecessarily restricts calls consumers 

may have actually wanted or expected. For example, a consumer could contact a business about the 

purchase of a consumer product and ask to be called back but not provide their “prior express written 

consent” within the meaning of the FTSA’s definition of that term. See Fla. Stat. § 501.059(1)(g). The 

end result of this is that the consumer either does not receive a clearly desired call just because his or 

her consent did not meet the onerous requirements of the statute, or the business takes the risk of 

possibly violating the FTSA in using an “automated system” to call the consumer. Either way, these 

examples all show Section 8(a) is both under and overinclusive, and it does not survive strict scrutiny.

c) Section 8(a) also cannot survive “intermediate scrutiny” review.

Though strict scrutiny applies, Section 8(a) does not survive intermediate scrutiny review, 

either. Under that standard, speech that is “neither misleading nor related to unlawful activity” may be 

restricted if there is (i) a “substantial” state interest, (ii) “the regulation directly advances the 

governmental interest asserted” and (iii) the regulation “is not more extensive than is necessary to serve 

that interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 564 

(1980). The State bears the burden of meeting this standard. See FF Cosms. FL, Inc. v. City of Miami 

Beach, 866 F.3d 1290, 1299 (11th Cir. 2017). Again, the State cannot meet its burden here, either.

As noted above, there is nothing in the FTSA’s legislative history or the text of the statute itself 

suggesting the Florida legislature has articulated any particular interest, let alone a “substantial” 

interest, that the recent amendments to Section 8(a) were designed to address. In fact, there is nothing 

suggesting the legislature has proffered any reason for singling out and regulating only unwanted 

automated “telephonic sales calls” to a “consumer” about “consumer goods or services” as Section 

8(a) now does, as opposed to all unwanted calls to any person on any topic. And even if there were 

some generalized interests in protecting consumers from unwanted automated calls, Section 8(a) is 

both under- and overinclusive in advancing them. Again, there are a variety of “unwanted” calls not 

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covered by Section 8(a) (e.g., debt collection calls, scam calls, non-sales calls, political calls, and nonconsumer sales calls not fitting the definition of a “telephonic sales call”) that can be made in automated 

fashion without any consent or recourse, and a whole host of “wanted” calls are covered when they 

should not be (e.g., where the consumer provides oral consent but not “prior express written consent”). 

Moreover, if the Florida legislature wanted to stop all unwanted automated calls of any kind, 

it could have accomplished that simply by mirroring the restrictions of the TCPA when it amended 

Section 8(a). Yet, that is not what Section 8(a) does. And there are many far less restrictive alternatives 

to the FTSA’s restrictions—such as oral consent or providing exceptions for calls made in response to 

an inquiry by the consumer—that the TCPA and other state calling statutes account for and the FTSA 

currently does not.12 “By ignoring far less restrictive and precise means, it is likely that [the FTSA] 

burdens substantially more speech than necessary.” FF Cosms., 866 F.3d at 1301. In short, while strict 

scrutiny applies, the FTSA is an unconstitutional speech restriction no matter the level of heightened 

scrutiny applied, and thus Count III should be dismissed under Rule 12(b)(6) on this additional basis.

d) Recent non-binding decisions on the constitutionality of the FTSA in 

other cases do not help Plaintiff avoid dismissal in this case.

Beautycounter anticipates that, in response to this Motion, Plaintiff will rely on at least three 

non-binding district court decisions (Turizo, Pariseau, and Borges) on the constitutionality of the 

FTSA, inviting this Court to forego its own independent analysis.13 It should decline this invitation.

For starters, these cases have zero impact on Plaintiff’s failure to plead any facts suggesting 

use of an “automated system” under the FTSA (see pp. 19-20, infra), the many fatal flaws with his 

TCPA ATDS claim (see pp. 5-10, supra), or his failure to plead a cognizable FTA claim (see pp. 20-

20, supra). Regardless of the FTSA’s constitutionality, the entire Complaint should still be dismissed 

on those bases. Further, none of those courts even attempted to hazard a guess as to what “automated 

systems” are covered by the FTSA despite declaring Section 8(a) is not vague on that basis, nor do any 

of them discuss the other unconstitutionally vague aspects of the statute, discussed above (see p. 11, 

supra). Moreover, two of those decisions (Pariseau and Borges) do not address the dormant 

12 In fact, recognizing the many constitutional infirmities in the current iteration, the Florida House 

introduced a bill that, although ultimately not passed, would have amended Section 8(a) to add some 

of those common exceptions that could have perhaps resolved some of the issue noted above. See

https://www.flsenate.gov/Session/Bill/2022/1095/BillText/c3/PDF at p. 2 (last visited Dec. 5, 2022).

13 See generally Turizo v. Subway Franchisee Advert. Fund Tr. Ltd., 2022 WL 2919260 (S.D. Fla. 

May 18, 2022); Pariseau v. Built USA, LLC, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022); Borges v. 

SmileDirectClub, LLC, 2022 WL 4269564 (S.D. Fla. Sept. 15, 2022). 

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Commerce Clause argument presented above (see pp. 10-12, supra); and they both rely heavily, if not 

exclusively, on the third decision (Turizo), which is distinguishable, inapposite, and, respectfully, 

fundamentally flawed (if not wrongly-decided) in a number of key respects, as discussed below.

Indeed, in Turizo, the court’s review was predominately preoccupied with the FTSA’s 

preemption by the TCPA, which is not argued in this Motion. See 2022 WL 2919260, at *6-8. 

Additionally, the court’s analysis in Turizo is flawed for at least three critical reasons: (1) it incorrectly 

assumed that compliance with the FTSA was sufficient to avoid dormant commerce clause 

implications, which avoids the critical analysis of whether the FTSA unduly burdens calls made to 

individuals wholly outside of Florida (and it clearly does, and is unduly burdensome on interstate 

commerce regardless of whether the FTSA is followed);14 (2) it incorrectly applied the intermediate 

scrutiny test to evaluate the constitutionality of the FTSA, whereas strict scrutiny applies to all

content-based burdens on speech, including commercial speech (e.g., Int’l Outdoor and Norwegian 

Cruise Line, supra), and it did not identify any interest (“compelling” or “substantial”) articulated by 

the State in limiting Section 8(a) to just calls to consumers about consumer goods and services, and 

improperly just took the plaintiff’s word for it; and (3) it sidestepped the vagueness issue by summarily 

concluding the dialer at issue fell into Section 8(a)’s purview based upon how the defendant referred 

to it, not based the actual characteristics of the device itself in relation to Section 8(a)’s terms. See 2022 

WL 2919260, at *8-12. In short, this Court should not be persuaded by these flawed decisions. 

D. Count III Should Also Be Dismissed Under Rule 12(b)(6) Because Plaintiff Fails 

to Allege Facts Suggesting Use of a FTSA-Prohibited “Automated System.”

Beyond its many constitutional failings, Plaintiff’s FTSA claim in Count III should also be 

dismissed because Plaintiff fails to plead sufficient non-conclusory facts in support of such a claim.

As noted above, there is at least one directly on-point federal authority—the recent decision in 

Davis v. Coast Dental Servs., LLC—which is particularly instructive here and further dooms Count III 

to dismissal. There, the district court held that, “[t]o properly allege a violation of [Section 8(a)], a 

plaintiff must allege some facts making it plausible that the defendant used an automated dialing 

system as described by the statute.” 2022 WL 4217141, at *2. Yet, the complaint in Davis merely 

alleged at best that, “‘[t]o transmit the above telephonic sales calls, Defendant utilized a computer 

software system that automatically selected and dialed Plaintiff’s and the Class members’ telephone 

14 See also Healy, 491 U.S. at 336 (the Commerce Clause is implicated where a statute applies to 

“commerce that takes place wholly outside of the State’s borders” even if there is no in-state impact). 

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numbers.” Id. Thus, dismissing under Rule 12(b)(6), the court held that “[t]his allegation is conclusory 

and the Court need not accept it as true” and that “it is merely possible that [the defendant] violated the 

FTSA, but not plausible as the pleading standard requires.” Id. (citing Chaparro and Iqbal). 

Here, as in Davis, Plaintiff’s Complaint omits any factual substantiation which would suggest 

that Beautycounter employed a “automated system” under the FTSA or an “ATDS” under the TCPA. 

Indeed, Plaintiff simply concludes “[u]pon information and belief, Defendant has placed automated 

and/or prerecorded calls and/or text messages to cellular telephone numbers[.]” Dkt. 1, ¶ 47. Plaintiff’s 

other allegations fare no better, and also conclude without support that Beautycounter violated the 

TCPA and FTSA “by using an automatic telephone dialing system and/or pre-recorded voice messages 

to send non-emergency text messages[.]” Id., ¶¶ 59, 70. Plaintiff alleges zero factual basis for these. 

In sum, Plaintiff’s allegations regarding the purported use of an “automated system” here fall 

far short of meeting federal pleading standards, just as the Davis court held and as many other courts 

in this District and throughout the country have recognized when dismissing similarly-bare ATDS 

claims in analogous TCPA cases. See discussion at pp. 8-9, supra. This Court should rule similarly. 

E. Plaintiff Fails to State a Cognizable FTA Claim.

Plaintiff’s perfunctory claim under the Florida Telemarketing Act is wholly without merit. 

Plaintiff suggests that it is a violation of this statute “for a salesperson to send messages without prior 

consent.” See Dkt. 1, ¶ 74. He is wrong. The Florida Telemarketing Act has a variety of provisions 

regarding licensure and disclosures which must be made during certain calls, none of which are 

relevant here. See Fla. Stat. § 501.601, et seq. The one section Plaintiff appears to seek to enforce are 

the provisions in Section 501.616, entitled “Unlawful Acts and Practices.” But Plaintiff does not plead 

any facts suggesting that any of those acts or practices occurred here.

15 This warrants dismissal too.

V. CONCLUSION

For all these reasons, the entire Complaint should be dismissed under Rules 12(b)(6).

16

15 Further, with Plaintiff’s federal TCPA claims properly dismissed for the myriad reasons above, the 

Court should decline to exercise supplemental jurisdiction over Plaintiff’s state law FTSA and FTA 

claims under 28 U.S.C. § 1367(c). See Grieben v. Fashion Nova, Inc., 2022 WL 4598649, at *6 (S.D. 

Fla. Sept. 29, 2022). And because all of Plaintiff’s individual claims do not survive dismissal under 

Rule 12(b)(6) for the many reasons above, the class allegations must also be dismissed. See, e.g., 

Henley v. Turner Broad. Sys., Inc., 267 F. Supp. 3d 1341, 1357 (N.D. Ga. 2017) (collecting cases).

16 Dismissal with prejudice is appropriate where “a more carefully drafted Complaint could not state a 

claim.” Silberman v. Miami Dade Transit, 927 F.3d 1123, 1137 (11th Cir. 2019). Such is true here as 

to Count III, as Plaintiff cannot cure the facial constitutional defects of the FTSA through amendment.

Case 9:22-cv-81450-DMM Document 13 Entered on FLSD Docket 12/05/2022 Page 21 of 22
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Dated: December 5, 2022 Respectfully Submitted,

MARK MIGDAL & HAYDEN

80 S.W. 8th Street, Suite 1999

Miami, Florida 33130

Telephone: (305) 374-0440

By: s/ Yaniv Adar 

Josh A. Migdal, Esq.

Florida Bar No. 19136

josh@markmigdal.com

Yaniv Adar, Esq.

Florida Bar No. 63804

yaniv@markmigdal.com

eservice@markmigdal.com

Attorneys for Defendant Counter Brands, LLC 

d/b/a Beautycounter

CERTIFICATE OF SERVICE

The undersigned certifies that, on December 5, 2022, the foregoing was filed electronically. 

Notice of this filing will be sent to all parties, via their counsel of record, by operation of the Court’s 

electronic filing and docketing system. 

/s/ Yaniv Adar

Yaniv Adar

Case 9:22-cv-81450-DMM Document 13 Entered on FLSD Docket 12/05/2022 Page 22 of 22