FLORIDA COURT FINDS PARTY LACKED STANDING TO SUE FOR VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT
Earlier this month Florida’s Third District Court of Appeals determined a customer of Pet Supermarket, Troy Eldridge (Eldridge), lacked standing to bring a class action lawsuit against Pet Supermarket based on alleged violations of the Telephone Consumer Protection Act (“TCPA” or “the Act”). Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (Fla. 3d DCA May 10, 2023). The TCPA[i] is a federal statute which prohibits the use of “automatic telephone dialing systems to call residential or cellular telephone lines without the consent of the called party.”[ii] Sending a text message qualifies as a “call” and is therefore considered prohibited conduct covered by the Act.[iii] In Eldridge, the alleged TCPA violations occurred after Eldridge visited a Pet Supermarket and voluntarily sent the text “PETS” to a short code provided by Pet Supermarket to enter a raffle to win free dog food for a year.[iv] Over the next three months Pet Supermarket sent Eldridge a total of seven text messages which Eldridge claimed violated the TCPA.
After receiving the text messages, Eldridge initiated a putative class action lawsuit in federal court claiming the messages deprived him of his privacy, wasted his time and intruded upon his seclusion.[v] The Southern District of Florida concluded the first two of the seven messages were not the type of telemarketing or advertising messages the Act intended to prohibit.[vi] Neither message referenced “shopping or purchasing,” rather, the messages were simply part of the registration process for the free dog food raffle. As to the remaining five messages, the federal court concluded that they were advertisements because they appeared “to encourage the purchase of goods and services.” The court then analyzed the messages to determine if they constituted “a concrete injury-in-fact,” the first of three required elements[vii] for establishing standing to bring suit in federal court.[viii]
The Southern District relied heavily on the 11th Circuit’s holding in Salcedo v. Hanna concluding that the act of receiving one or two text messages per month for three months did “not rise to the level of being such an ‘objectively serious and universally condemnable’ intrusion on Plaintiff’s privacy, so as to resemble the injury actionable under intrusion upon seclusion.”[ix] Further, the court reasoned that the intrusion on privacy by virtue of a text message requiring only seconds to open and read was not sufficient to constitute a concrete injury even if multiple text messages were sent. The court rejected Eldridge’s position that Salcedo was distinguishable because in that case only one text message was sent. The Southern District explained that the quantity of text messages was not the determining factor; rather, it was the qualitative nature of text messages that failed to satisfy the concreteness of injury element for Article III standing. The federal court dismissed Eldridge’s lawsuit.
Eldridge then sued Pet Supermarket in state circuit court in Miami-Dade County “based on the same text messages” but relying on Florida’s “more relaxed” standing requirements.[x] Eldridge claimed Florida courts did not require him to have suffered an “actual injury” to establish standing to sue; rather, he argued the injury in fact requirement was satisfied simply by showing that Pet Supermarket violated the TCPA. This time, in support of his intrusion upon seclusion claim, Eldridge alleged that “the ‘quantity and quality of messages … constituted a barrage of messages that caused [him] to incur repeated aggravation by annoying him, costing him resources, and interfering with his daily activities such as driving safely or peacefully putting his children to bed.’ ” He also claimed the text messages “‘wasted his time by requiring him to open and read the messages, depleted his cell phone battery, caused him to incur a usage allocation deduction to his text messaging or data plan, and took up approximately 190 bytes of memory’ on his cell phone.” The trial court found these allegations sufficient to confer standing since under Florida law Eldridge “need only allege a violation of his statutory rights…to have standing.” Pet Supermarket appealed that finding.
While the Third DCA agreed that Florida courts were “not constrained by the ‘hard floor’ of injury in fact imposed by Article III jurisdiction[;]” the Court disagreed with Eldridge’s argument that a statutory violation alone could confer standing to bring suit.[xi] The DCA concluded Eldridge still had to “demonstrate a concrete harm or injury from the TCPA violation” to demonstrate his standing to sue in state court. The DCA rejected Eldridge’s position that the seven text messages sent by Pet Supermarket had “a ‘close relationship’ to the harm associated with the ‘common law analogue [tort]’ “ of intrusion upon seclusion.[xii]
In evaluating the text messages, the DCA determined only one of the seven messages actually intruded on Eldridge’s “private space” and that that message, although sent to Eldridge on the weekend while he was at home, simply did “not rise to the level of outrageousness required for an invasion of privacy, i.e., that it is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.’ ” The DCA concluded that Eldridge failed to show he was harmed from Pet Supermarket’s alleged violation of the TCPA and therefore he failed to demonstrate he had standing to sue in state court. The DCA dismissed[xiii] Eldridge’s complaint.
[i] The pertinent provisions of the TCPA are codified at 47 U.S.C. § 227(b).
[ii] Eldridge, at *1 (quoting Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019)).
[iii] Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1067-8 (S.D. Fla. 2020).
[iv] Eldridge, at *1. All future references or quotations are to this citation until indicated otherwise.
[v] The federal case is: Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1070-2 (S.D. Fla. 2020).
[vi] Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1068 (S.D. Fla. 2020).
[vii] To have standing to sue in federal court under Article III of the United States Constitution a plaintiff must demonstrate that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1067 (S.D. Fla. 2020) (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)).
[viii] Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1066-7 (S.D. Fla. 2020).
[ix] Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1070 (S.D. Fla. 2020) (citing Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019)).
[x] Eldridge, at *2. All future references or quotations are to this citation until indicated otherwise.
[xi] Eldridge, at *3. All future references or quotations are to this citation until indicated otherwise.
[xii] Eldridge, at *4. All future references or quotations are to this citation until indicated otherwise.
[xiii] Notably, the DCA dismissed the complaint without prejudice so Eldridge can still amend his complaint to try to satisfy the injury in fact pleading requirement to establish standing.