A federal judge in New Jersey has dismissed a proposed class action lawsuit alleging Work Out World Inc. violated the Telephone Consumer Protection Act (TCPA).
U.S. District Court Judge Peter G. Sheridan dismissed the suit without comment on Aug. 1, and attorneys for the plaintiff responded the same day with a notice of appeal to the United States Court of Appeals for the Third Circuit.
The plaintiff in the case, Noreen Susinno, alleged Work Out World left a single voicemail marketing lower membership pricing through an automated message on her cellular phone without her consent in July 2015. The amended complaint filed June 15 alleges negligent violations of the TCPA, and knowing and/or willful violations of the TCPA by Work Out World.
A portion of the TCPA prohibits calls using any automatic telephone dialing system (ATDS) or any artificial or prerecorded voice to any telephone number assigned to a paging service, cellular phone service or other service for which the called party is charged for the call. Susinno's amended complaint alleges she did not provide prior express written consent to receive telephone calls from Work Out World utilizing an ATDS.
Work Out World's actions included causing harm by intruding upon Susinno's "seclusion," by causing her "aggravation and annoyance," by wasting her time, by depleting her phone's battery life, and by the loss of phone use during the time the phone was occupied by the 62-second call, the complaint alleges.
On June 28, attorneys for Work Out World filed a motion with the court to dismiss the case and sought dismissal on grounds for lack of subject matter jurisdiction and lack of standing. Work Out World argued that although the complaint alleges a potential class may have incurred cellular telephone charges or reduced cellular telephone time, Susinno failed to allege that she actually suffered any injury-in-fact.
Work Out World served Susinno an offer of judgment on Aug. 21, 2015, for $1,501 and provided a proposed order for a stipulated permanent injunction in full satisfaction of her claims, according to the motion. In the amended complaint, Susinno noted the most that could be recovered from a willful violation of the TCPA was $1,500. Work Out World deposited that sum, plus the extra dollar for "good measure," to Susinno's agent's account on March 30, according to the motion.
On June 16, Work Out World submitted a proposed order to the court permitting judgment in Susinno's favor in the amount of $1,501.00 and offering to deposit those funds in the court registry. Work Out World's attorneys argued that an accompanying stipulation for entry into a permanent injunction "unquestionably" affords Susinno "all of the relief she seeks."