dismissed picture for Gavejian blog post

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.