A Florida appellate court recently published a massively important opinion regarding text messages and standing.
In Pet Supermarket v. Eldridge, No. 3D21-1174, (May 10. 2023), Florida’s Third District Court of Appeal confirmed that
- Florida state courts have the same Article III “concrete harm” limitations that federal courts have;
- Receipt of a text message in violation of a bare procedural right established by the TCPA does not create “concrete harm”; and
- Plaintiff failed to show any significant harm arose from receipt of a single text that it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,” and therefore failed to show concrete harm from the text at issue.
You can read the ruling here: Eldridge
This is an incredibly important ruling on a couple of fronts.
First, and most basically, having a state appellate court confirm that concrete harm limits exists in state court is really important. Many states treat their courthouses as tribunals of “general” jurisdiction meaning they will hear any dispute regardless of whether any real harm resulted. Not in Florida. Only a violation of the law that has actually caused some meaningful harm is going to be heard–otherwise the case will be dismissed!
Second, the finding that a violation of the TCPA does not trigger standing because the mere violation of a procedural protection cannot create “concrete harm” is a sneaky important ruling. I have said since the day after Spokeo was decided way back in 2016 that TCPA class actions were dead since a mere violation of the statute–without more–would never cause sufficient harm to afford standing. And while some unwanted texts might cause harm–such as where they cause someone to fall off a ladder– the regular old text message would not and certifying a class of ladder injuries would be impossible in these cases. Well the Edlridge court concurs–which is fabulous because so many district courts have gotten this issue deass wrong.
Third, the Eldridge court sets an incredibly high standard for substantive harm here. Nuisance or annoyance is not enough. Rather the Plaintiff needs to show some truly obnoxious conduct to have standing to sue. This last piece is a bit odd because standing is not the same as showing elements of a common law claim. So the idea that TCPA cases are not enforceable unless some common law claim could also be stated seems a bit… off. Still that appears to be the heart and soul of the Eldridge court’s holding:
We find 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 harm of intrusion upon seclusion.
Again, not sure that’s the correct analysis– but it is super cool and very helpful for TCPA defendants in the state.
Bottom line: in Florida state court a mere violation of the TCPA is not enough to cause harm– and this may mean that the jurisdictional requirements in state court are actually now much HIGHER than in federal court. Wow!
The take away here is that good news just keeps pouring in for callers and texters in Florida. Not only has the FTSA been massively amended, the courthouse doors were just shut to most types of call and text cases. Remarkable change in just a few days!
We’ll keep an eye on all of this.