Advertising Law Blog

In Susinno v. Work Out World Inc., decided by the Third Circuit Court of Appeals on July 10, 2017, a Telephone Consumer Protection Act (TCPA) lawsuit was reinstated based on a single telephone call that went straight to voicemail.

In this case, the plaintiff received a single unsolicited voicemail, and filed a lawsuit against the fitness center that called her. The TCPA allows a $500 remedy for each illegal call, so plaintiffs like to sue under this statute even if they have no real damages. The fitness center filed a motion to dismiss, saying that the plaintiff had not suffered an injury of the caliber needed to establish standing to sue under Article III of the United States Constitution.  

The District Court agreed with the defendant and dismissed the plaintiff’s claims finding that a single solicitation using a prerecorded call was too trivial an injury under the United States Supreme Court’s recently adopted Spokeo standard. The single voicemail, according to the district court, constituted a “bare procedural violation” and thus did not result in a particularized injury that permitted the plaintiff to proceed with the lawsuit.

The plaintiff appealed, and argued that the injuries suffered were reduced cellphone minutes, time wasted retrieving the voicemail, depletion of the cellphone battery, and the aggravation, annoyance, nuisance and invasion of privacy associated with listening to the voicemail.

The Third Circuit reversed the district court, finding that the injuries claimed by the plaintiff, mostly the invasion-of-privacy-type claims, were the very harm Congress sought to prohibit by enacting the TCPA. It ruled plaintiff suffered a sufficiently concrete injury to confer Article III standing and sent the case back to the district court. 

Takeaway: Courts appear unwilling to remove the anti-calling protections of the TCPA simply because the plaintiff suffered an injury that most people would consider insubstantial.