TCPA Dismissal Raises More Questions Than It Answers

The U.S. District Court for the District of New Jersey recently dismissed a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA) on grounds that the Court lacked subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Yet, the one-page dismissal order leaves more questions unanswered than it resolved.

In Susinno v. Work Out World, Inc., No. 3:15-cv-5881 (D.N.J. Aug. 1, 2016), the plaintiff alleged that Work Out World, a gym offering paid memberships, left an unsolicited voicemail message on her cell phone in violation of the TCPA. She alleged that the defendant’s actions caused her “aggravation and annoyance” and deprived her of phone time. She also claimed that putative class members may have incurred cellular telephone charges or reduced minutes as a result of the unauthorized calls.

Work Out World made two arguments in its motion to dismiss. First, it cited to the recent Supreme Court decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) arguing that the plaintiff asserted only “a bare procedural violation, divorced from any concrete harm.” Second, relying on Campbell-Ewald Company v. Gomez, 136 S. Ct. 663 (2016), Work Out World argued that the case was moot because it provided an offer of judgment and tender of payment in full satisfaction of the plaintiff’s claims.

On August 1, 2016, the Court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction. But the Court did not provide an opinion stating what arguments formed the basis of its decision. This leaves us and industry professionals to speculate as to which argument the court found convincing. Both arguments have interesting and significant factual differences from the Spokeo and Campbell-Ewald cases (see some of our discussion of these cases here, here, and here). In this case the plaintiff alleged that the injury was an unsolicited call, which was aggravating and annoying, even taking up time on her phone. These allegations, while seemingly minor inconveniences, are arguably more particularized than in Spokeo where the plaintiff could not show that any third parties ever saw the inaccurate information provided by the defendant.

Further, unlike in Campbell-Ewald, Work Out World argued that it didn’t merely offer payment in full satisfaction of the plaintiff’s claims, but rather “submitted to the Court a proposed Final Judgment permitting judgment in favor of Plaintiff in the amount of $1,501.00 and offer[ed] to deposit those funds into the Court Registry.” Work Out World further stated that this amount — plus $1 for good measure — was deposited into plaintiffs agent’s account on March 30, 2016. In Campbell-Ewald, the defendant merely offered to settle the case for $1,500 (the maximum allowed under the TCPA); but, the plaintiff rejected that offer. The Supreme Court held that an unaccepted settlement offer does not make a plaintiff’s claim moot. However, the Court wrestled with, but ultimately did not address, whether an offer of judgement and tender of payment with the Court would change this analysis.

Thus both possible rationales for this current decision provides ammunition for TCPA defendants, but it may be tricky figuring out which rational was key. We may find out soon enough though as the case already has been appealed to the Third Circuit. Stay tuned for updates and further developments in this case. In the meantime, we provide a list of recent TCPA cases for your reference.