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Media Alerts - Noreen Susinno v. Work Out World Inc.- Third Circuit
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July 14, 2017
  Noreen Susinno v. Work Out World Inc.- Third Circuit
Headline: Plaintiff has standing for claim under the Telephone Consumer Protection Act based on single pre-recorded call to her cell phone

Area of Law: Consumer protection, TCPA

Issues Presented: Does the TCPA prohibit a solicitor from leaving a single voicemail of a pre-recorded promotional offer on a consumer's cellphone? If so, is mere receipt of the call a sufficiently concrete injury for Article III standing?

Brief Summary:
Work Out World (WOW) left one prerecorded promotional voicemail on Susinno's cell phone, which Susinno claimed was a violation of the Telephone Consumer Protection Act (TCPA). The Third Circuit reversed dismissal of her claim, holding that the TCPA prohibition extends to single phone calls and that the call caused Susinno a concrete injury. The Third Circuit held that, 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 the English and American courts, standing to sue exists. The injury here was squarely covered by the TCPA and is closely related to traditional torts like invasion of privacy, intrusion upon seclusion, and nuisance.

Extended Summary:

The Third Circuit reversed the District Court's dismissal for lack of subject matter jurisdiction of a claim under the TCPA. Plaintiff Susinno had alleged a claim under the TCPA based on WOW's single pre-recorded call to her cell phone. The Court rejected WOW's argument that the TCPA does not prohibit a single pre-recorded call to a cell phone if the owner is not charged for the call, and that congress's primary concern in prohibiting prerecorded calls is the cost to the consumer. The Court noted that the TCPA grants the FCC power to exempt from prohibition certain prerecorded calls that do not charge the recipient. It also found such calls may implicate the privacy rights Congress intended to protect with the statute - regardless of charges - and held the statute applies equally to residential cell phones as it does house phones.

The Court further held that Susinno's alleged injuries were sufficiently concrete to establish constitutional standing under Spokeo. It held that, when one sues under a statute alleging the very injury the statute is intended to prevent, and the injury has a close relationship to a harm traditionally providing a basis for a lawsuit, a concrete injury has been pleaded. Congress squarely identified single-prerecorded calls as an injury under the TCPA. Susinno met the second part of the test because her claim closely relates to a common law cause for intrusion upon seclusion - which has long been heard in American courts - and Congress sought to protect the same interests implicated by this traditional common law claim in enacting the TCPA. Therefore, Susinno alleged a sufficiently concrete intangible injury.

Find the full opinion at:

Panel: Circuit Judges Hardiman and Krause, and District Judge Stengel (sitting by designation)

Argument Date: March 8, 2017

Date of Issued Opinion: July 10, 2017

Docket Number: No. 16- 3277

Decided: Reversed and remanded for further proceedings.

Case Alert Author: Kevin P. McGilloway

Keith J. Keogh, Timothy J. Sostrin, Yitzchak Zelman, Ari Marcus, counsel for Appellant

Joshua S. Bauchner, Michael H. Ansell, counsel for Appellees

Andrew J. Pincus, counsel for amicus Chamber of Commerce in support of Appellees

Brian Melendez, counsel for amicus ACA International in support of Appellees

Author of Opinion: Judge Hardiman

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/14/2017 04:37 PM     3rd Circuit  

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