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Fitness company must face lawsuit over single promotional call

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A federal appeals court has reinstated a Telephone Consumer Protection Act claim against a fitness company that left a message on the plaintiff’s cellphone, stating she has established that she suffered a concrete injury.

Noreen Susinno said on July 28, 2015, she received an unsolicited call on her cellphone from a fitness company, Wall, New Jersey-based Work Out World Inc., and that when she did not answer, the company left a prerecorded promotional offer that lasted one minute on her voicemail, according to Monday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Noreen Susinno v. Work Out World Inc.; John Does 1-25.

Ms. Susinno filed suit in U.S. District Court in Trenton, New Jersey, charging the call violated the TCPA’s prohibition of prerecorded calls to cellphones.

The court granted the firm’s motion to dismiss the case, which a three- judge appeals court panel unanimously reinstated on appeal.

Ms. Susinno has alleged a sufficiently concrete injury to establish constitutional standing to sue, said the panel.

“Congress squarely identified this injury,” said the ruling. “The TCPA addresses itself directly to single prerecorded calls from cellphones and states that its prohibition acts ‘in the interest of () privacy rights,” said the ruling, in remanding the case for further proceedings.

In June, a federal court refused to grant Zurich Insurance Group Ltd. summary judgment in a Telephone Consumer Protection Act case involving a now-bankrupt retailer and a plaintiff pursuing a $3 million judgment.