Susinno v. Work Out World: One Prerecorded Voicemail Is Enough to Sue

What happened

On July 28, 2015, Noreen Susinno got an unsolicited call on her cell phone from Work Out World (WOW), a gym chain. She didn't pick up, and WOW left a one-minute prerecorded promotional message on her voicemail. She sued under the TCPA's ban on prerecorded calls to cell phones.

The District of New Jersey dismissed for lack of jurisdiction. It said one solicitation wasn't what Congress was trying to stop and that Susinno suffered no concrete injury.

What the Third Circuit held

Judge Hardiman wrote the opinion, joined by Judge Krause and District Judge Stengel, sitting by designation. The court reversed on both points.

The TCPA covers the call. WOW argued that the cell phone ban only applies when the called party is charged for the call. The court called that reading "strained." Under the rule of the last antecedent, as the Eleventh Circuit explained in Osorio, "for which the called party is charged" modifies only "any service," not cellular service. And another section of the statute lets the Federal Communications Commission (FCC) exempt cell phone calls "that are not charged to the called party." That exemption power would be pointless if uncharged calls weren't covered in the first place. The court also emphasized that Congress linked that provision to "privacy rights." Congress's focus on calls to the home in 1991 doesn't limit the law's reach to cell phones.

The injury is concrete. The court applied Spokeo, Inc. v. Robins and its own decision in In re Horizon Healthcare. Two factors made the injury concrete:

1. Congress identified this exact harm. The statute speaks to prerecorded calls to cell phones in the interest of privacy, and the TCPA's findings call such calls "a nuisance" and "an invasion of privacy." Susinno alleged exactly that.
2. History backs it up. The harm closely relates to the traditional tort of intrusion upon seclusion. At common law, two or three calls usually weren't enough, but Congress protected the same interest and elevated a harm that was "previously inadequate in law." The court agreed with the Ninth Circuit's reasoning in Van Patten v. Vertical Fitness Group.

The court also brushed off an amicus argument that applying the TCPA to uncharged calls violates due process. Because the intangible harm was enough, it didn't need to decide whether wasted time or other tangible harms independently supported standing.

Why this matters

Susinno shuts down two common defenses in the Third Circuit: "they weren't charged for the call" and "one call isn't a real injury." Even a single unanswered prerecorded voicemail can get you into federal court.

Practical takeaways:

1. Get prior express consent before any prerecorded or artificial voice call to a cell phone, even just one.
2. Don't count on unlimited calling plans as a defense.
3. Don't expect a standing challenge to end a one-call case in this circuit.

Read the Third Circuit's opinion in Susinno v. Work Out World.