Five unauthorized texts over three months are not a concrete injury in fact. This justice flourish just cropped up in the Southern District of Florida, and has sharpened TCPAWorld’s contours.  A class action Plaintiff sued Pet Supermarket Inc. for alleged TCPA violations by sending unauthorized text messages using an ATDS.  According to the Eldridge v. Pet Supermarket, 2020 U.S. Dist. LEXIS 56222 opinion, Plaintiff went to a pet store in the defendant’s chain and entered into a raffle for free pet food for the year by texting the word PETS to a particular number.  The Defendant then automatically responded with two messages.  Plaintiff alleged that the defendant then kept his number after the raffle campaign, and texted him five more times with promotional advertisements.  He alleged the texts “invaded [his] privacy…wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a… deduction to his…data plan.”  Defendant moved to dismiss for a lack of standing, and alternatively argued the Plaintiff couldn’t establish he suffered any actual injury.  The court agreed!

The Court first picked off the Plaintiff’s claims as to the texts sent in response to the raffle entry; those are simply not advertisements under the TCPA. 

Next, the court held the subsequent texts were advertisements, and he claimed he did not give consent, so he adequately alleged that the texts violated the TCPA. However, the court plainly held “In light of Salcedo [11th Circuit case holding a single text does not convey standing in a TCPA action] the Court must find that Plaintiff’s alleged injuries—invasion of privacy, intrusion upon seclusion, and wasted time from receiving five unauthorized text messages over a three-month period—do not state a concrete injury-in-fact.”  The Court built on top of that saying the Plaintiff here, like in Salcedo, did not allege he was enjoying dinner when the texts shattered his domestic peace.  “Similarly, the loss of privacy from receiving one unwanted text message per month over a three-month period does not rise to the level of being such an ‘objectively serious and universally condemnable’ intrusion on Plaintiff’s privacy, so as to resemble the injury actionable under intrusion upon seclusion.”

Finally, through Plaintiff’s deposition it was clear he did not have any evidence that the texts depleted his battery or consumed his data plan.  Looks like the Plaintiff’s bar has less to scrape from the bottom of the barrel to drum up TCPA text claims.  Another victory for the defense!