Archives for August 2016

On August 1, 2016 United States District Court Judge Peter Sheridan dismissed with prejudice a putative class action brought against Work Out World (WOW) under the Telephone Consumer Protection Act (TCPA). The case, Sussino v. Work Out World (Case No. 15-cv-5881 (PGS)(TJB), United States District Court for the District of New Jersey) involved a plaintiff, Noreeen Sussino, who filed her complaint after a single unanswered phone call to her cell phone.

A copy of the 1-page Order dismissing the case can be found here.

Background

Ms. Susinno alleged that on July 28, 2015, WOW left a pre-recorded message on her cellular telephone’s voicemail regarding membership. The message lasted a total of 1 minute and 6 seconds.

The complaint was originally filed on July 30, 2015 (2 days after the call) and later amended on June 15, 2016. A copy of the Amended Complaint can be found here.  The Amended Complaint alleges a litany of “harm” to the plaintiff caused by that single call, including:

• Defendant’s action harmed Plaintiff by causing the very harm that Congress sought to prevent – a “nuisance and invasion of privacy.”
• Defendant’s action harmed Plaintiff by trespassing upon and interfering with Plaintiff’s rights and interest in Plaintiff’s cellular telephone.
• Defendant’s action harmed Plaintiff by intruding upon Plaintiff’s seclusion.
• Defendant’s action harmed Plaintiff by causing Plaintiff aggravation and annoyance.
• Defendant’s action harmed Plaintiff by wasting the Plaintiff’s time.
• Defendant’s action harmed Plaintiff in the loss of use of her phone during the time that her phone was occupied by incoming calls.
• Defendant’s action harmed Plaintiff by depleting the battery life on Plaintiff’s cellular telephone.

On June 28, 2016, WOW filed a motion to dismiss the complaint. WOW’s motion to dismiss relied heavily on the recent decision by the United States Supreme Court in Spokeo, Inc. v. Robins. (578 U.S. ___, 136 S. Ct. 1540). 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. A copy of the Memorandum of Law in Support of Defendant’s Motion to Dismiss can be found here.

The Court’s Decision

As noted above, the court only issued a 1-page Order in the case. However, insideARM was able to obtain a transcript of the hearing on the motion. The transcript provides detail into the court’s reasoning. A copy of the 32-page transcript can be found here.

During the hearing the court asked the attorneys to focus the bulk of their arguments on the Spokeo case. After hearing from both sides Judge Sheridan made his ruling from the bench.

In rendering his decision, Judge Sheridan commented:

“All right. So, a motion to dismiss for want of standing is properly brought pursuant to 12(b)(1). It’s a jurisdictional issue. Constitutional Party, 777 F.3d 347, 357. Generally, the court must accept as true all material facts or allegations in the complaint, and construe the facts in favor of the non-moving party. That’s Storino v. Point Pleasant, 322 F.3d 293. Plaintiff always bears the burden of establishing standing. Generally, standing comes under cases in controversy as in the federal Constitution, and the doctrine of standing gives meaning to these constitutional limits by identifying those disputes which are appropriately resolved in the judicial process. That’s Lujan, 504 U.S. 555.

To establish standing you usually need an injury in fact; causal connection between the injury and the conduct complained of, and the likelihood that the injury will be redressed by a favorable decision. That’s Lujan again at 561. Generally, the injury, to be sufficient, must be concrete and particularized.

And that brings us to the Spokeo case, and it’s a decision by Judge Alito. So within that Spokeo case, Justice Alito identified the terms concrete and particularized, upon which the plaintiff must show in order to have a case or controversy. And for the injury to be particularized, it must affect the plaintiff in a personal and individual way. And then he indicates that the injury must also be concrete; concrete injury must be de facto, that is, it must actually — it says: When we have used the adjective concrete, Judge Alito writes, we have meant to convey the usual meaning of that term, real and not abstract. And he cites to Webster’s Dictionary. And then he indicates that concreteness is different than particularization, and that both needed to be shown in order to have standing. Concrete is not always synonymous with tangible, but Alito says intangible injuries can nevertheless be concrete. And then there’s some explanation of that, and he does add in there that: In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, in Spokeo, Alito continues, Congress may elevate the status of legally cognizable injuries, concrete de facto injuries that were previously inadequate in law, and there he’s citing to Lujan at page 578.

And in all these TCPA cases there’s this underlying thought that Congress has passed the statute, and therefore they’re identifying a concrete injury that has occurred to the person. So, with regard to that, I decided that I should look at the Telephone Consumer Protection Act to see if this is the type of case that Congress was trying to protect people against. And here, it seems to be admitted by Mr. Marcus that there was only one telephone call, and it lasted — I believe it was a minute and a few seconds. And, at any rate, when Congress was enacting the Telephone Consumer Protection Act, it had four purposes: (1) minimizing random solicitation calls which tied up private and business phone lines and fax machines; (2) the prevention of annoying and repeated telemarketing calls and blast faxes, amounting to invasion of privacy; (3) elimination of the imposition of non-consensual calls to recipients of calls and faxes who have no prior relationship with the advertiser; (4) debt collection and creditor calls initially were not considered to fall within the ambit of the TCPA, which was directed to advertisers and solicitors. So, that’s another purpose I take it.

But generally, if you look at those purposes, when it says “tied up private and business phones,” this means if the phone is tied up, and that is usually not the case on a one-minute call.

Secondly, the prevention of annoying and repeated telemarketing calls, seems to require that there needs to be some type of pattern or repeatedness to the telephone calls, so that does not mean once; there’s three, five, seven, something like that. We’ve all been subject to those calls once or twice in our past. It’s those types of telephone call patterns that Congress was looking at.

The elimination of nonconsensual calls to recipients — and it’s in the plural there — of the calls and faxes, who had no prior relationship; so that seems to indicate that Congress was thinking about more than one call.”

And then it gets into the debt collectors and creditor callers.

So generally, when you look at concreteness – and concreteness, as I had indicated, that is, it must actually exist; we have used the word concrete, we have meant to convey the usual meaning of the term — real and not abstract. And this one-minute call — and I know plaintiff talks about the loss of battery power and things of that nature; but that seems de minimus to me.

Paragraph 18 of the complaint says: On or about July 28th, 2015, plaintiff received a telephone call on her cellular phone. And that’s really the full explanation. There’s no pattern related to it, there’s no repeatedness, there’s no annoying — it wasn’t really that annoying. Paragraph 20 does say there was a prerecorded message, and it was followed by a six-second pause and lasted one minute and two seconds in total. So, it doesn’t seem as if it’s a significant period of time, and it doesn’t seem to be annoying in the sense that I think of that word.

So, with regard to the Spokeo case, it’s my view that, as explained by Judge Alito in that case, the concreteness is not really set forth within the complaint. Any injury seems to be rather abstract; a loss of some de minimus battery power over a minute, doesn’t seem to be significant in my mind.

Okay. So for those reasons, the defendant’s motion to dismiss is granted. Mr. Marcus (Plaintiff’s Attorney) had indicated that he was stipulating that there was only one call, so I don’t see how I can allow an amendment at this point, because it would be futile based on the rationale that I had decided. So, thank you for coming in.”

insideARM Perspective

This is a positive outcome for defense of TCPA cases. It is an interesting discussion by Judge Sheridan on the congressional thought process on the intended purpose of the TCPA – to prevent annoying and multiple calls.   We will see whether other courts follow this logic.

There was a second argument raised by Defendants in their motion to dismiss. They argued that they had made an Offer of Judgment that fit the parameters discussed in the recent Supreme Court case of Campbell-Ewald v. Gomez (136 S. Ct. 663, 2016). However, since the Judge had already dismissed the case for lack of standing, that argument was deemed moot and not addressed by the court.

Joshua S. Bauchner of the law firm of Ansell Grimm & Aaron, P.C. represented the Defendant in this matter. insideARM contacted Mr. Bauchner for his thoughts on the case and Judge Sheridan’s decision. Mr. Bauchner commented,

“The case marks one of the first applications in the nation of the Supreme Court’s guidance in Spokeo to dismiss a putative class action and serves as a deterrent to curtail frivolous TCPA cases whose only purpose is to extort a settlement from defendants who otherwise face severe statutory penalties.  As Judge Sheridan concluded, a single, unanswered call sent to voicemail does not rise to the level of ‘annoying and repeated’ calls constituting an ‘invasion of privacy’ which Congress sought to prohibit.”