On Monday the Third Circuit Court of Appeals issued an opinion reversing the prior district court opinion in the case of Sussino v. Work Out World (Case No. 15-cv-5881, United States District Court for the District of New Jersey).  insideARM had written about the earlier decision on August 25, 2016

The Third Circuit opinion was written by the Honorable Thomas Hardiman, Third Circuit Judge. His opinion can be found here. Sussino v. Work Out World, (Case No. 16-3277, Third Circuit Court of Appeals). 


Ms. Susinno alleged that on July 28, 2015, Work Out World (WOW) left a pre-recorded message on her cellular telephone’s voicemail regarding membership. The message lasted a total of one minute and six 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. The “harm” is detailed in our August 25, 2016 story.

On August 1, 2016, United States District Court Judge Peter Sheridan dismissed the putative class action complaint with prejudice.  The order dismissing the complaint was only a single page.  A copy of the one-page Order dismissing the case can be found here

Judge Sheridan’s decision was based on two conclusions: (1) a single solicitation was not “the type of case that Congress was trying to protect people against,” and (2) Susinno’s receipt of the call and voicemail caused her no concrete injury. 

Susinno timely filed this appeal. 

The Third Circuit Opinion 

Judge Hardiman began his opinion with a summary of the court’s opinion: 

“Because the TCPA provides Susinno with a cause of action, and her alleged injury is concrete, we will reverse the order of the District Court and remand for further proceedings.” 

He then succinctly described the issues presented: 

“This appeal poses two distinct questions: Does the TCPA prohibit the conduct alleged by Susinno? And if it does, is the harm alleged sufficiently concrete for Susinno to have standing to sue under Article III of the United States Constitution?” 

Does the TCPA Prohibit the Conduct? 

Judge Hardiman wrote: 

“WOW argues that the structure of this provision limits the scope of “cellular telephone service” to cell phone services where “the called party is charged for the call.” WOW Br. 15 (emphasis omitted) (quoting 47 U.S.C. § 227(b)(1)(A)(iii)). According to WOW, when Congress prohibited prerecorded calls to cell phones in the TCPA, it primarily was concerned with the cost of those calls. See WOW Br. 2, 4–5 (quoting the House and Senate reports for the TCPA). 

If it were the case (as WOW suggests) that cell phone calls not charged to the recipient were not covered by the general prohibition, there would have been no need for Congress to grant the FCC discretion to exempt some of those calls. We also think it significant that this section states “calls to a [cell phone] . . . not charged to the called party” can implicate “privacy rights” that Congress “intended to protect,” even if the phone’s owner is not charged for the call. 47 U.S.C. § 227(b)(2)(C).” 

Was the harm alleged sufficiently concrete for Susinno to have standing to sue under Article III of the United States Constitution? 

The court concluded that the injuries alleged by Susinno were concrete for two reasons: 

“First, Congress squarely identified this injury. The TCPA addresses itself directly to single prerecorded calls from cell phones, and states that its prohibition acts “in the interest of [ ] privacy rights.” 47 U.S.C. § 227(b)(2)(C). The congressional findings in support of the TCPA likewise refer to complaints that “automated or prerecorded telephone calls are a nuisance [and] . . . an invasion of privacy.” Pub. L. 102– 243, § 2. We therefore agree with Susinno that in asserting “nuisance and invasion of privacy” resulting from a single prerecorded telephone call, her complaint asserts “the very harm that Congress sought to prevent,” arising from prototypical conduct proscribed by the TCPA. App. 11 (First Amended Complaint); see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (finding two unwanted text messages constituted a concrete injury under the TCPA, as they “present the precise harm and infringe the same privacy interests Congress sought to protect”). 

Where a plaintiff’s intangible 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, standing to sue exists.” 

insideARM Perspective 

The insideARM perspective in our August 26, 2016 article expressed optimism that other courts throughout the country might follow the lead of the district court judge that originally dismissed this case. That optimism was short-lived. Unless and until the Court of Appeals for the District of Columbia Circuit issues a common-sense result in ACA International v. Federal Communication Commission -- or the FCC itself reverses rules promulgated in 2015 -- these types of TCPA cases will continue to be filed. 


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Tags: TCPA