The District Court of Appeals of Florida, Third District, recently dismissed a putative class action asserting allegedly unwanted text messages under the federal Telephone Consumer Protection Act ("TCPA") for lack of standing under Florida law.
In so ruling, the Court of Appeals held a mere statutory violation of the TCPA was not sufficient to confer standing under Florida law, and that the texts alleged by the named plaintiff in this case did not constitute a concrete injury as required under Florida law.
A copy of the opinion is available at: Link to Opinion
The named plaintiff visited a pet store and learned about a promotion to win free dog food for a year by texting a number associated with the pet store. An employee of the pet store company signed up the named plaintiff by texting "PETS" from the named plaintiff's phone to a number associated with the defendant pet store company. After signing up, the plaintiff immediately received two (2) messages then an additional five (5) messages over the next few months. All of the texts concerned promotional or advertisement information contained the message "Reply STOP to end."
The named plaintiff first filed a putative class action against the defendant pet store in federal court alleging a violation of the federal Telephone Consumer Protection Act ("TCPA"). Ultimately, the federal court held that the plaintiff'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).
After the federal lawsuit was dismissed, the named plaintiff refiled the case with nearly identical allegations in Florida state court. The named plaintiff again alleged that he received seven (7) unauthorized text messages and added allegations to the complaint alleging the unauthorized text messages caused the named plaintiff repeated aggravation by annoying him and interfered with his daily activities like driving safely, peacefully putting his children to bed, and disrupted his domestic weekend of peace. In addition, the named plaintiff alleged that his time was wasted by being required open and read the messages, he suffered a loss in his cell phone battery, and deduction in cell phone data plan. He asserted that these actions constituted the common law tort of invasion of privacy upon seclusion.
The named plaintiff moved for class certification. The defendant pet store moved for summary judgment and argued that the named plaintiff lacked standing to sue under the TCPA because he did not suffer a concrete injury. The trial court denied the defendant's summary judgment motion and ruled that the named plaintiff had standing to pursue his TCPA claim. The trial court found that the named plaintiff had standing because he only needed to allege a violation of his statutory rights under the TCPA to have standing and was not required to allege or demonstrate actual injury. The defendant appealed.
On appeal, the named plaintiff argued that his allegation of a bare procedural violation of the TCPA was sufficient to establish his standing to pursue a class action claim for a violation of the federal statute.
Generally, a Florida appellate court reviews a lower court's decision to certify a class for abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 105 (Fla. 2011). However, "before determining whether the requirements for class certification are met, a trial court must address the threshold issue of whether the class representative has standing." Id. A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo. Sosa, 73 So. 3d at 116.
First, the Appellate Court noted that, even though plaintiff's allegations failed to satisfy a federal court's standing requirement, this did not mean the claims should be automatically dismissed in Florida state court because the state court is not constrained by the federal court rulings regarding the injury in fact standard imposed under Article III of the federal Constitution. Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009); see ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).
However, the Appellate Court noted that "it is equally true that Florida law also imports an injury in fact requirement under our standing framework." Saleh v. Miami Gardens Square One, Inc., 353 So. 3d 1253, 1255 (Fla. 3d DCA 2023).
Under Florida law, courts look to three familiar concepts — injury, causation, and redressability — to assess a plaintiff's standing. Cmty. Power Network Corp. v. JEA, 327 So. 3d 412, 415 (Fla. 1st DCA 2021). "Under these concepts, a plaintiff first must identify an actual or imminent injury that is concrete, distinct, and palpable." Id. In addition, for putative class actions, "the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation." Sosa, 73 So. 3d at 116. "If it is shown that the plaintiff who seeks class certification suffered no injury and, thus, has no cause of action against the defendant, the class should not be certified." City of Opa-Locka, Fla. v. Suarez, 314 So. 3d 675, 679 (Fla. 3d DCA 2021).
Relying on rulings by the Supreme Court of the United States, the Florida Supreme Court in State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004), identified three requirements in Florida that constitute the "irreducible constitutional minimum" for standing. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S. Ct. 1858, 146 L.Ed.2d 836 (2000). First, a plaintiff must demonstrate an "injury in fact," which is "concrete," "distinct and palpable," and "actual or imminent." Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990). Second, a plaintiff must establish "a causal connection between the injury and the conduct complained of." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). Third, a plaintiff must show "a `substantial likelihood' that the requested relief will remedy the alleged injury in fact." Stevens, 529 U.S. at 771, 120 S. Ct. 1858.
The named plaintiff argued that even under an injury in fact standing requirement, he sufficiently alleged a concrete injury in the form of an invasion of his privacy because the texts he received were a violation of the common law tort of invasion of privacy intrusion upon seclusion.
In Florida, the tort of intrusion upon seclusion deals with an intrusion "into a `place' in which there is a reasonable expectation of privacy." Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003). In addition, the intrusion upon seclusion must be highly offensive to a reasonable person. Jackman v. Cebrink-Swartz, 334 So. 3d 653 (Fla. 2d DCA 2021) (quoting Restatement (Second) of Torts § 652B (Am. Law Inst. 1977)); see also Cason v. Baskin, 20 So. 2d 243, 251 (Fla. 1944).
The Court of Appeals held that receiving text messages while at home, during the weekend, simply does not rise to the level of outrageousness required for an invasion of privacy. Additionally, the Court continued, the unwanted text messages at issue were not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, as required under Florida law. Thus, the Appellate Court held that the named plaintiff's alleged statutory injury is not akin to Florida's common law harm of intrusion upon seclusion.
Accordingly, the Court of Appeals reversed the trial court's order and remanded the case with instructions to dismiss the putative class action complaint.
Ralph T. Wutscher
Maurice Wutscher LLP
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