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Mintz Achieves Dismissal with Prejudice on Behalf of Work Out World

Mintz, Cohn, Ferris, Glovsky and Popeo, P.C., and Ansell Grimm & Aaron, P.C., have achieved a dismissal – among the first of its kind – on behalf of Work Out World, which faced a class action alleging violations of the Telephone Consumer Protection Act (TCPA) and attempting certification of a nationwide class. 
The complaint filed in New Jersey federal court alleged that Work Out World violated the TCPA by leaving plaintiff an unsolicited voicemail regarding a VIP membership offer at its health and fitness facility. Plaintiff further alleged that she suffered harm in the form of cellular telephone charges, reduced cellular phone time, time wasted retrieving the voicemail and invasion of privacy. The complaint also sought to certify a nationwide class. After the Supreme Court’s decision in Spokeo v. Robins, many defendants filed motions to dismiss arguing that plaintiffs in TCPA cases lack standing because they cannot point to any concrete harm. Unfortunately for those defendants, the vast majority of those motions were denied with numerous district courts across the nation favoring plaintiffs in holding that the complaints alleged sufficient harm to meet the standard in Spokeo v. Robins. 
Not only did Work Out World achieve a dismissal in the face of this trend, but the court granted the motion to dismiss for lack of standing with prejudice. This result is especially noteworthy because it resolves a question of first impression: whether the receipt of one allegedly unsolicited voicemail can be the basis to allege the harm necessary to satisfy the injury-in-fact requirement of Article III. 

The case is Noreen Sussino v. World Out World, Inc. Work Out World was represented by Joshua Briones, Crystal Lopez and Esteban Morales of Mintz and Joshua S. Bauchner and Michael Ansell of Ansell Grimm & Aaron, P.C.