CRM CERTIFIED AS CLASS COUNSEL IN TCPA SUIT AGAINST PET SUPERMARKETJune 11, 2021 | Articles
On April 23, 2021, a team of Carey Rodriguez Milian attorneys, led by David Milian and Ruben Conitzer, won two major victories for its client before the Eleventh Judicial Circuit In and For Miami-Dade County, Florida, in Eldridge v. Pet Supermarket, Inc., Case No. 2020-006035-CA-01 (44).
In 2017, during a visit to a Pet Supermarket store, a store clerk alerted the Firm’s client, Troy Eldridge, about a raffle for a year’s supply of free pet food. To enter, Mr. Eldridge had to text the word “PETS” to 65047. Unbeknownst to Mr. Eldridge, entering in this raffle automatically enrolled him in Pet Supermarket’s recurring text message marketing program. Thus, Mr. Eldridge received marketing copyright autodialed messages on his cell phone in violation of the Telephone Consumer Protection Act (TCPA).
Pet Supermarket moved for summary judgment on the ground that Mr. Eldridge lacked standing to sustain his claim under the TCPA. Mr. Eldridge moved to certify a nation-wide class of similarly situated parties alleging that more than 100,000 other individuals received texts from Pet Supermarket without prior express written consent. The Court found for Mr. Eldridge on both matters and certified a nationwide class.
Regarding the motion for summary judgment, the Court found that the plaintiff is not required to show any injury beyond a violation of the TCPA. Furthermore, the Court cited a bevy of case law from around the country in which standing was upheld where a violation of the TCPA was sustained by the receipt of just one or two text messages. Finally, the Court found that Mr. Eldridge had sufficiently alleged various injuries-in-fact to meet the demands of Article III standing, including phone battery drain, use of his home’s electricity or car battery, use of available phone memory and storage, and use of phone processing capabilities.
Regarding class certification of the case as a class action, the Court found all of the requirements under Rule 1.220 of the Florida Rules of Civil Procedure were met. First, the Court determined that the members of the class were so numerous as to render joinder of each member impractical. Specifically, Pet Supermarket admitted that at least 5000 consumers received identical marketing text messages to Mr. Eldridge. Furthermore, the legal and factual issues of the class members would be common and include (1) whether Pet Supermarket sent text messages, (2) whether the text messages were sent using an automatic telephone dialing system (ATDS), (3) whether the text messages introduce an advertisement or constitute telemarketing, (4) whether Pet Supermarket obtained prior express written consent to send the text messages, (5) whether the conduct was knowing or willful, and (6) whether Pet Supermarket’s enrollment contained the requisite clear and conspicuous disclosures. The Court also found that the class members experience were typical because each member was subject to Pet Supermarket’s business practice of sending advertisement and telemarketing text messages en masse using ATDS without obtaining prior express written consent.
Finally, the Court found that the class would be adequately represented by Carey Rodriguez Milian, LLP. Like other courts across the country, the Court here found that “Carey Rodriguez Milian . . . regularly engage in major complex litigation and have been appointed lead class counsel in consumer class action lawsuits.” Further, the firm is “highly competent and . . . possess substantial experience litigating class action lawsuits on behalf of aggrieved investors.” Thus, the Court found that Carey Rodriguez Milian is “adequately prepared to prosecute this action.”