Florida’s Third District Court of Appeal recently reversed class certification and directed dismissal, holding that the plaintiff had failed to establish any concrete harm from an alleged violation of the TCPA and thereby lacked standing. Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (3d Fla. Dist. Ct. App. May 10, 2023). (Note that this opinion has yet to be released for publication in the permanent law reports, as a motion for rehearing, clarification, or certification, or a petition for review, may be pending.)
Eldridge had visited the defendant’s store, where he learned about a promotion in which customers could win free dog food for a year if they enrolled in the defendant’s text-message program. After enrolling, Eldridge immediately received two texts, and then received an additional five texts over a period of six months. All the texts contained the message “Reply STOP to end” and concerned promotional or advertisement information.
Rather than replying “STOP,” Eldridge filed a putative class action in federal court. The federal court dismissed his claim for lack of standing, finding that under the Eleventh Circuit’s decision in Salcedo, Eldridge’s allegations of loss of privacy, wasted time, and intrusion upon seclusion did not constitute a concrete injury in fact for Article III standing purposes. Eldridge v. Pet Supermarket, Inc., 446 F. Supp. 3d 1063, 1070-72 (S.D. Fla. 2020) (citing Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019)).
Undeterred, Eldridge filed a new putative class action—this time in Miami-Dade Circuit Court. Eldridge subsequently moved for class certification, while Pet Supermarket moved for summary judgment. The trial court denied Pet Supermarket’s summary judgment motion and found that Eldridge had standing because he “need only allege a violation of his statutory rights under the TCPA to have standing [and] need not allege or demonstrate an actual injury.” Eldridge v. Pet Supermarket, Inc., No. 2020-006035-CA-01, 2021 WL 1779958, at *2 (Fla. Cir. Ct., Miami-Dade Cnty. Apr. 23, 2021). The trial court also granted Eldridge’s motion for class certification. Eldridge v. Pet Supermarket, Inc., No. 2020-006035-CA-01, 2021 WL 1623895 (Fla. Cir. Ct., Miami-Dade Cnty. Apr. 23, 2021).
The Third District Court of Appeal reversed. It reasoned that, although the state and federal standards are not necessarily coterminous, Florida law does have “an injury in fact requirement” that requires plaintiffs to identify “an actual or imminent injury that is concrete, distinct, and palpable.”
The court thus rejected Eldridge’s contention that his allegation of a statutory violation of the TCPA alone establishes his standing to bring suit. “Although outside the constraints of Article III, [a plaintiff] must still demonstrate a concrete harm or injury from the TCPA violation to demonstrate his standing in a Florida state court.”
The court also rejected Eldridge’s contention that he had sufficiently alleged a concrete injury in the form of an invasion of privacy (intrusion upon seclusion). Although Eldridge received seven text messages from Pet Supermarket, the court held that only one arguably intruded upon his private space. In following the U.S. Supreme Court’s guidance in Transunion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) to compare the alleged intangible harm to the harm associated with a closely related “common law analogue,” the Florida appellate court held that
“Eldridge’s receipt of one text message while at home, during the weekend, simply does 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,” and therefore, Eldridge’s alleged statutory injury is not akin to Florida’s common law of harm of intrusion upon seclusion. Thus, Eldridge has not alleged a concrete injury.”
The effect of this decision cannot be overstated, particularly considering two ongoing federal appeals that are evaluating the Eleventh Circuit’s Salcedo precedent that a plaintiff’s alleged receipt of a single text message in violation of the TCPA does not meet the injury requirement for Article III standing. See Drazen v. Pinto, No. 21-10199 (11th Cir.) (reconsidering en banc a vacated panel decision that had reaffirmed Salcedo); Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir.) (considering whether Article III injury exists for plaintiffs alleging receipt of multiple texts, not just one, and who allege a violation of the FTSA, not the TCPA). See our prior discussion here.
When combined with the recent changes to the FTSA by the legislature, plaintiffs will have a much more difficult path to recovery in these types of cases.
