October 30, 2019
In a recent decision in the matter of Susinno v. Work Out World, Inc., the United States District Court for the District of New Jersey granted class certification to potential plaintiffs with claims arising under the Telephone Consumer Protection Act (TCPA) against Work Out World, Inc. (“Work Out World”). The TCPA makes it unlawful to use any automatic telephone dialing system or an artificial or prerecorded voice to place a call to a cell phone without the express consent of the recipient. The claim was based upon prerecorded phone calls and messages that were sent on behalf of Work Out World, which operated a number of gym facilities. Plaintiff contended that sometime in July of 2015, she had received a prerecorded telephone message on a cell phone from Work Out World, encouraging her to return to the gym, and that she had not consented to this call. Ultimately, the Court determined that individuals who had received automated telemarketing from Work Out World, without their consent, satisfied the requirements to attain Rule 23 class certification for a claim under the TCPA.
Plaintiff was required to demonstrate numerosity, commonality, typicality, and adequate representation, with respect to the proposed class action. Additionally, she had to demonstrate that there were common questions of fact or law predominating over any questions affecting individual class members, and that a class action was superior to individual claims. Work Out World admitted that the prospective class – of 25,808 former gym members who had received phone calls – satisfied the numerosity and typicality requirements of the Federal Rules of Civil Procedure. However, the gym franchise contended that the particular Plaintiff was not typical of the class she sought to represent; that she spoliated evidence by deleting the voicemail which was central to the claim; and that her personal relationship with the proposed class’ attorneys, disqualified her from being an adequate class representative.
Ultimately, the Court certified the class, reasoning that Defendant had made no showing of any intentional spoliation; that Plaintiff was a “regular user” of the cell phone that received the call, and thus had standing; and that Defendant failed to show that the Plaintiff’s personal relationship with her counsel would prevent her from executing her duties to the class. Lastly, the Court determined that the proposed class action was plainly superior to other available forms of adjudicating the dispute, particularly where the TCPA provided for statutory damages in excess of the actual compensatory damages any individual plaintiff may have suffered. As such, the class action for robocalls was permitted to proceed.
For more information on this topic, please contact MKC&I’s Tom Emala at (973) 822-1110 or at temala@mcgivneyandkluger.com.