Appeals court keeps the line open on single-call class actions

What’s the 411?

One call was all it took.

New Jersey resident Noreen Sussino received a call on her mobile phone on July 28, 2015, from Work Out World (WOW), an Ocean Township, NJ-based business. She did not answer the call, but when she checked her messages, she discovered a one-minute voicemail from WOW regarding a promotional offer.

Within days, Ms. Sussino filed a class action complaint against WOW under the Telephone Consumer Protection Act (TCPA). She claimed a passel of wrongs by WOW, including intrusion on her seclusion, wasting her time, and depleting her cell phone battery.

Nonetheless, a little over a year later, the putative class action was dismissed with prejudice by the District Court of New Jersey. The district court claimed that Ms. Sussino’s allegations were not “the type of case that Congress was trying to protect people against,” and that the phone call had caused no concrete injury, so she had no standing to sue.

Still Standing

The Third Circuit reversed the district court’s decision in an opinion that not only kept the class action alive, but kept the door wide open for future TCPA cases.

The appellate decision tackled and undercut both of the District Court’s arguments against the action. First, the court maintained that Ms. Sussino’s receipt of an unwanted call was precisely what Congress intended to address. WOW had based its defense on the notion that because Ms. Sussino had not paid for the call, the TCPA did not apply. The court maintained that WOW was arguing from a strained grammatical interpretation of the relevant passage, and, moreover, that the TCPA elsewhere granted discretion to the FCC to exempt such calls from the law—an exemption that wouldn’t be necessary if the law didn’t apply.

On the question of whether or not the harm toward Ms. Sussino was sufficiently concrete to give her standing to sue, the court held first that Congress had openly identified precisely this injury – invasion of privacy and nuisance – in the body of the TCPA. Second, the court agreed that although the harm to Ms. Sussino was intangible, nonetheless such claims can grant standing to sue—provided that the “injury has been made legally cognizable through the democratic process, and the injury closely relates to a cause of action traditionally recognized in English and American courts…”

The Takeaway

The Circuit Court’s opinion allows plaintiffs to cast a very wide net when they go fishing for TCPA suits. Every company that markets via mobile phone should remain wary of potential class action claims.