On May 10, Florida’s Third District Court of Appeal issued an opinion in Pet Supermarket, Inc. v. Eldridge, holding that the plaintiff and putative class representative lacked standing to pursue his class action lawsuit under the Telephone Consumer Protection Act (TCPA). In Eldridge, the plaintiff visited a Pet Supermarket store where he learned about the store’s contest to win free dog food for a year by texting the word “PETS” to a short code. The plaintiff gave his phone to one of the store’s employees who entered the text from the plaintiff’s phone. The plaintiff then received text messages from Pet Supermarket over the next several months.

The plaintiff brought a TCPA class action suit against Pet Supermarket alleging that the “quantity and quality of messages … 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.” The plaintiff further claimed that the texts “invaded [his] privacy, intruded upon his seclusion and solitude, 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 ruled that the plaintiff had standing to pursue his TCPA claim because he “need only allege a violation of his statutory rights under the TCPA to have standing and he did not need to allege or demonstrate an actual injury.”

On appeal, the court found that the plaintiff’s allegation of a statutory violation of the TCPA alone does not establish his standing to bring suit and that the plaintiff must still demonstrate a concrete harm or injury from the TCPA violation to demonstrate standing in a Florida state court. Furthermore, the court found that the plaintiff’s receipt of a text message while at home “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.'”