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Earlier this month, United States District Court Judge Peter Sheridan dismissed a class action brought against Work Out World (“WOW”) under the Telephone Consumer Protection Act (TCPA).  In doing so, Judge Sheridan relied on the recent decision by the United States Supreme Court in Spokeo, Inc. v. Robins.

The named plaintiff, Norreen Susinno, filed a class action complaint on July 30, 2015, against WOW. The complaint alleged that WOW negligently, knowingly and/or willfully contacted the plaintiffs on their cellular telephones in violation of the TCPA and thereby invaded their privacy.  Specifically, Ms. Susinno alleged that on July 28, 2015, WOW left a pre-recorded message on her cellular telephone’s voicemail regarding membership.  The complaint went on to allege that the plaintiff and class members incurred various types of harm, including incurring certain cellular telephone charges or reduced cellular telephone time for which they had previously paid, having to retrieve or administer messages left by WOW during the telephone calls, and invading the privacy of the plaintiff and class members.  Ms. Susinno sought to certify a nationwide class of all persons who, in the preceding four years, had received telephone calls from WOW which were made with the use of an automatic telephone dialing system and/or used an artificial or prerecorded voice.

On June 10, 2016, WOW filed a motion to dismiss the complaint. WOW argued that Ms. Susinno had failed to allege any concrete harm and that, pursuant to the Supreme Court’s decision in Spokeo, the complaint should be dismissed.  In opposition to WOW’s motion, Ms. Susinno alleged she suffered actual damages, including that WOW’s calls (1) were a nuisance and invasion of privacy, (2) trespassed upon and interfered with her rights and interest in her cellular telephone, (3) intruded upon her seclusion, (4) caused her aggravation and annoyance, (5) wasted her time, (6) caused the loss of use of her phone during the time that her phone was occupied by incoming calls, and (7) depleted the battery life on her cellular telephone. WOW countered that the entirety of Ms. Susinno’s claim under the TCPA rested on her receipt of a single, unanswered phone call and Ms. Susinno could offer nothing more than procedural harm in support of her claim.

Interestingly, WOW also sent Ms. Susinno an offer of judgment, including injunctive relief and payment to her in full and final satisfaction of her claims. WOW’s offer included the deposit of $1,501.00 on Ms. Sussino’s credit card. Ms. Susinno did not accept WOW’s offer. Nevertheless, as part of its motion to dismiss, WOW argued that dismissal was also warranted and consistent with the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, as Ms. Susinno no longer had a “live claim” following the offer of judgment. In doing so, WOW pointed to the fact the Supreme Court’s Campbell-Ewald decision left open the question “whether [the determination that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case] would be different if a defendant deposits the full amount of plaintiff’s individual claim in an account payable to the plaintiff, and the court entered judgment for the plaintiff in that amount.”

Following a hearing on the motion to dismiss, Judge Sheridan granted WOW’s motion and dismissed the matter with prejudice. Judge Sheridan’s order did not address WOW’s arguments for dismissal based on the offer of judgment.

Although Ms. Susinno filed an appeal of the district court’s decision, the decision may be very helpful to companies that are looking for various arguments to dispose of and otherwise defend against class claims, particularly where the alleged harm at issue is negligible, to the extent there is any harm at all.





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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.