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Can a company get a Florida Security of Communications Act lawsuit dismissed early for lack of Article III standing? So far, Florida federal courts have rejected that argument at the pleadings stage, but it may become a viable defense at summary judgment or class certification.
Following the United States Supreme Court’s holding in TransUnion v. Ramirez, defendants being sued for violations of Chapter 934, Fla. Stat., the Florida Security of Communications Act (“FSCA”), have sought to dismiss cases for lack of Article III standing. The analysis turns on whether the plaintiff claiming a statutory violation suffered a concrete harm akin to that contemplated under the corollary historical tort.
However, Rule 12(b)(1) motions challenging the district court’s jurisdiction have failed at the pleadings stage in Florida federal courts. As such, companies utilizing advertising technology (“AdTech,” including tracking cookies, scripts, tracking tags, and tracking pixels) cannot expect to extinguish FSCA claims early into litigation.
What Does Article III Standing Require in the Eleventh Circuit?
Article III standing, following TransUnion, requires an injury that is concrete and particularized, and a bare statutory violation will not inherently supply one. Further, any intangible harm must be “concrete,” meaning that it bears a close relationship to a harm traditionally recognized as a basis for suit at common law.
Typically, plaintiffs alleging FSCA violations do not claim monetary loss or physical harm. Instead, they assert intangible injuries; district courts, in turn, usually consider the tort of intrusion upon seclusion the most analogous tort for standing purposes. The analysis typically centers on whether transmission of personal data (often health-related data and/or biometric data) to third parties shares a close relationship with the intrusion upon seclusion tort. Thus far, federal district courts in Florida have found in the plaintiff’s favor.
Have Florida Federal Courts Dismissed FSCA Claims for Lack of Standing at the Pleadings Stage?
Thus far, Article III standing has been tested in Bowen v. Women’s Care Fla. LLC and Crespi v. BayCare Health System, Inc. In each case, the plaintiff alleged the interception and disclosure of “private health information” or “sensitive medical information” via third-party tracking software on the defendant’s website. In each case, the district court has found that the plaintiff sufficiently alleged standing.
In Bowen, the court found standing, observing that the intrusions into the plaintiff’s private health information, as distinct from general personal information, “are of particular importance here” and bear a close relationship in kind to the traditional tort. The court in Crespi reached the same result, holding that the plaintiffs’ allegations were “sufficiently analogous to the common law tort of intrusion upon seclusion to establish a concrete injury-in-fact.”
Can a Defendant Raise Article III Standing Later in an FSCA Case?
A plaintiff, however, must maintain Article III standing throughout the duration of the litigation. Restated, this means that a defendant may raise Article III standing beyond the pleadings stage and after obtaining discovery. Several defendants in FSCA cases have pleaded Article III standing as an affirmative defense; however, no recent FSCA case has tested Article III standing later in the proceeding. In both Cyr v. Orlando Health, Inc. and D.S. v. Tallahassee Memorial HealthCare, the defendant healthcare provider pleaded that the plaintiff lacked standing by being unable to prove an injury in fact fairly traceable to the alleged misconduct and therefore that the district court lacked subject-matter jurisdiction.
Existing precedent drives the conclusion that Article III standing in modern FSCA cases may become a viable defense at summary judgment or class certification rather than when responding to a complaint. The district courts appear to recognize this, as indicated in the Bowen opinion, which warns that if a standing challenge is raised at summary judgment, the plaintiff can no longer rest on her allegations and must “set forth by affidavit or other evidence specific facts.”
What Should Companies Using AdTech Expect From FSCA Litigation?
Even with TransUnion’s heightened Article III standing burden, plaintiffs pleading FSCA violations have responsively evolved their complaints to avoid early Article III dismissal. For companies (and healthcare companies, in particular) utilizing advertising technology, including tracking cookies, scripts, tracking tags, and tracking pixels, FSCA claims cannot be extinguished early into litigation. Instead, if the plaintiff’s complaint is otherwise sufficient, these cases may proceed to discovery.
Contact Jimerson Birr’s privacy and litigation team to assess your company’s potential FSCA exposure.