Parler Denies Waiving ‘Contractual Right’ to Arbitrate TCPA Dispute

Parler denies plaintiff Catherine Migliano’s assertions that it waived its “contractual right” to arbitrate her Telephone Consumer Protection Act dispute, said the social media platform in a reply memorandum Tuesday (docket 0:22-cv-61805) in U.S. District Court for Southern Florida in Fort Lauderdale in support of its motion to dismiss.

Migliano maintains Parler waived its right to arbitrate when it failed to renew its motion to compel after she filed her amended complaint, said the memorandum. “The mere filing of an amended complaint does not, by itself, moot a motion to compel arbitration,” it said. Migliano’s waiver argument “is also inconsistent with Southern District of Florida precedent that an amended complaint that does not add claims, plaintiffs, or defendants, does not automatically moot a motion to compel arbitration,” it said.

Migliano’s alternative argument that Parler waived its right to arbitration by actively participating in the case likewise doesn’t hold water, said the memorandum. “Parler’s participation cannot be construed as active participation,” it said. The platform instead has asserted its right to arbitration “at every available opportunity and in multiple filings,” it said. Migliano made a “fatal assumption” that her first amended complaint automatically mooted Parler’s motion to compel arbitration, it said: “It does not.”

Migliano’s alleged receipt of Parler text messages does not confer on her Article III standing, said the memorandum. Her “misleading reliance” on other circuits finding that “unwanted text messages, without more, confer standing, should be rejected,” it said. Courts in the 11th Judicial Circuit where Florida resides “have recognized that text messages do not create injuries that share a close relationship with harms traditionally recognized as providing a basis for recovery,” it said.

Migliano’s first amended complaint “fails to clear the qualitative floor needed to allege a concrete injury,” said Parler. She fails “to identify a single specific harm she or the proposed class allegedly suffered,” it said. She lacks standing and the court should dismiss her claims “for this reason alone,” it said.

The court must determine, in addressing standing, the number of text messages Migliano “has plausibly alleged in violation of the TCPA,” said the memorandum. She asks the court “to accept the allegations that all of the text messages” included in her first amended complaint “are marketing text messages,” it said. The court “should reject this invitation,” it said.

The TCPA preempts Florida Telephone Solicitation Act's autodialer provisions, so Migliano’s FTSA claims need to be dismissed, said Parler. “To the extent the FTSA imposes more stringent regulations on interstate telemarketing than does the TCPA, the FTSA conflicts with the TCPA and is preempted.”