MIAMI (Legal Newsline) - A Pet Supermarket customer who signed up for a contest to win free pet food for a year can't sue the company for the seven texts he received after.
Florida's Third District Court of Appeal ruled against Troy Eldridge on May 10, overruling a Miami-Dade County trial judge's decision to let his lawsuit proceed. It was his second try at suing under the Telephone Consumer Protection Act, after having his first dismissed by a federal judge.
His Miami state court suit said the "barrage of messages" annoyed him and interfered with his daily activities like driving and putting his children to bed.
"Particularly, as to the February 24 text, Eldridge alleged that it 'had the effect of blasting through and disrupting [his] domestic weekend peace,'" the ruling says.
Eldridge is represented by the firm Carey Rodriguez Milian. It sought class certification while Pet Supermarket motioned for summary judgment, which was initially rejected by the trial judge but now has been granted.
"(W)e find no merit to Eldridge's contention that his allegation of a statutory violation of the TCPA alone establishes his standing to bring suit," the ruling says. "...Eldridge must still demonstrate a concrete harm or injury from the TCPA violation to demonstrate his standing in a Florida state court."
The court ruled one text message received at home during the weekend does not rise to the level of outrageousness required for an invasion of privacy claim. It must not have been swayed by the gripes laid out in Eldridge's declaration in the trial court.
"Whenever my iPhone sounds, buzzes, or provides a pop-up notification, I instinctively stop what I am doing and interact with it to examine the reason as it may concern an important matter. Receiving Pet Supermarket’s automated marketing messages on my iPhone bothered me, interrupted my day, and actually made me not want to check my phone," Eldridge said.
"This interfered with people who did have a valid reason to try to reach me. I am very busy and I received many of Pet Supermarket’s messages while working and trying to pay attention to other things. Pet Supermarket’s messages interfered with my legitimate other pursuits and took my attention away from things that are more important in my life."
Judge Edwin Scales dissented, arguing the TCPA unambiguously provides for a private cause of action. He said his allegations meet Florida's standing requirements, which are looser than federal courts in the Eleventh Circuit.
The TCPA was signed into law in 1991, when only 3 percent of Americans subscribed to a wireless telephone service. It was designed to protect consumers upset with unwanted calls from telemarketers, specifically those made with an automated dialing machine.
It restricted calls made to residential phone lines without prior express consent from the consumer. Exceptions included calls made for emergency purposes or to collect a debt on behalf of the United States.
If a company violates the TCPA, it is subject to fines of $500 per call, and if the violation is found to be “knowing” or “willful,” that amount is tripled. Cases are often filed as class actions and frequently settled quickly as a payoff to the named plaintiff to avoid the costs of litigation and the risk of an adverse judgment.