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By Jimmy H. Koo
A single robocall that resulted in no fee to the recipient is sufficient injury to support a Telephone Consumer Protection Act lawsuit, a federal appeals court held July 10 ( Susinno v. Work Out World, Inc. , 2017 BL 236450, 3d Cir., No. 16-3277, 7/10/17 ).
If phone calls not charged to the recipient weren’t covered by the TCPA’s general prohibition against unwanted telemarketing, “there would have been no need for Congress to grant the FCC discretion to exempt some of those calls,” the U.S. Court of Appeals for the Third Circuit ruled.
The appeals court also rejected defendant membership gym Work Out World Inc.'s argument that plaintiff Noreen Susinno didn’t suffer a sufficiently concrete injury to file a class action suit. Under the U.S. Supreme Court’s 2016 decision in Spokeo Inc. v. Robins, Susinno has “alleged a concrete, albeit intangible, harm,” Judge Thomas Hardiman said.
According to the amended class complaint, Susinno received an unsolicited phone call on her mobile phone. When she didn’t answer, Work Out World left a prerecorded promotional message. Sussino sued, alleging that the call and the message violated the TCPA.
The U.S. District Court for the District of New Jersey granted Work Out World’s bid to dismiss the suit, finding that a single solicitation wasn’t “the type of case that Congress was trying to protect people against,” and that Susinno didn’t suffer a concrete injury.
Vacating the lower court’s order, the appeals court said that Congress “squarely identified” the type of injury that Sussino allegedly suffered, and her complaint asserted that statutory harm.
Judges Cheryl Ann Krause and Lawrence F. Stengel joined in the opinion.
Work Out World is a private company based in Wall, N.J., that owns and operates gyms and fitness training centers, according to Bloomberg data.
Keogh Law Ltd. and Marcus & Zelman LLC represented Susinno. Ansell Grimm & Aaron PC represented Work Out World.
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