Courts Continue to Look for "Actual Harm" in TCPA Cases

WHO: (1) a class action group of plaintiffs led by Noreen Susinno of New Jersey;
(2) Work Out World, Inc., the defendent;
(3) Judge Peter G. Sheridan

WHAT: Susinno was head of a class of plaintiffs who claimed that Work Out World, Inc.’s, use of an automated dialing system to leave a single pre-recorded message was a violation of the Telephone Communication Protection Act. Work Out World, Inc., countered that no actual harm was caused by this. In August of 2016, the judge dismissed the plaintiffs’ case since no harm could be proved.

WHEN: Susinno filed the suit in July of 2015; the case was dismissed 1 August 2016

WHERE: New Jersey District Court

WHY: Noreen Susinno filed her suit against Work Out World, Inc., in July of 2015, for not obtaining prior express consent to leave her a voice mail via an automatic telephone dialing system on her cell phone. In this case, the pre-recorded message was about gym memberships. Since the message probably went out to “tens of thousands” of other consumers (per the complaint), Susinno and her attorney decided a class action suit was the best fit.

Work Out World’s counter was (a) Susinno wasn’t privvy to the “tens of thousands” of other cell phone contracts and agreements; and (b) she didn’t suffer any actual harm because of the voicemail. The judge agreed with Work Out World.

Susinno “respectfully disagrees” with Judge Sheridan, claiming that regardless of any issue of “suffering,” the statute itself was violated and that should be enough to award damages to the plaintiff(s).

Susinno and her attorney are appealing this decision.

insideARM Perspective

Another example, beneficial to the debt industry without being explicitly about the debt industry, of judges seeing value in the distinction of actual harm when adjudicating TCPA cases. Laws should not be a collection of potential accidents where failure leads to costly mistakes for an entity; they should offer true protection from abuses — and voicemail messages about Zumba classes don’t really meet that requirement.