United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
before the Court is Plaintiff Noreen Susinno's Motion for
Class Certification, ECF No. 56. Plaintiff brings these
claims on behalf of herself and others similarly situated
against Defendant Work Out World, Inc. ("WOW or
Defendant"), under the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227 (b)(1)(A)(iii) which makes it
unlawful for any person to make a single telephone call to a
cell phone, without prior express consent of the called
party, using any automatic telephone dialing system of an
artificial or prerecorded voice. Sussino v. Workout World,
862 F.3d (3d Cir.).
operates eleven gym facilities in New Jersey. (Decl. of
Stephen P. Roma ("Roma Decl."), Sr., ECF No. 59-1,
at ¶ 2). Plaintiff was a previously a member of a WOW
gym in Wall, New Jersey. (PI. br., ECF No. 56-1, at 9). In or
around July 2010, Defendant contracted with Global Connect,
and Global Connect agreed to provide the Defendant the use of
its software to place prerecorded calls through an automatic
dialing system to "provide telephone broadcasting
products and related services . . . ." (Roma Decl. at
¶ 4, First Amended Compl., ECF No. 15, at ¶ 20-22).
Each individual WOW gym compiled telephone numbers of former
members that were to be called and provided those telephone
numbers to Global Connect. (Id. at ¶8).
According to Plaintiff, "WOW created prerecorded
messages soliciting . . . former members to rejoin WOW by
purchasing an exclusive VIP membership .. .." (PI. br.
at 9-10). Plaintiff alleges that she received the following
message to her cell phone as a voicemail on July 28, 2015:
"This is an important update pertaining to a letter we
recently mailed you. We mistakenly failed to mention that, in
the coming weeks, membership pricing at WOW will be
increasing significantly. As a former member you have a
chance to beat the upcoming price increase. Until July 31st
we invite you and up to two friends or family to join WOW on
this VIP membership that includes access to all locations,
group classes, free babysitting, and free tanning. All for
zero down and just twenty dollars per month. Plus the monthly
dues are guaranteed to never increase. Remember this offer
expires this Friday July 31st. Stop by any WOW location or
simply join online at workoutworld.com/rejoin. That's
(Prerecorded Messages, ECF No. 56-6; Dep. Of Noreen Susinno,
T19:24 to 20:3; Broadcast Report, ECF No. 67-7, at 337).
to Plaintiff, the following message played if the software
detected a live answer to the call: "This is an
important message from WOW Work Out World for [First name,
Last name]. This message is about your membership account at
WOW Work Out World. To find out more, press 9. To no longer
receive voice broadcast communication from WOW Work Out
World, press 7." (Prerecorded Messages, ECF No. 56-6).
If the recipient pressed 7, the following message played:
"Thank you. Your phone number has been opted out of our
voice broadcast system. We apologize for any
inconvenience." (Id.) If the recipient instead
pressed 9, the system played the same message that was left
as a voicemail. (Id.)
Connect generated a Broadcast Report which identified 11, 389
telephone numbers as ones that answered the prerecorded call,
and 14, 419 telephone numbers where a prerecorded message was
recorded as a voicemail. (Decl. of Timothy J. Sostrin, ECF
No. 56-9, at ¶¶ 6-8; Broadcast Report, ECF No.
counsel is Ari Marcus, Keith Keogh, and Timothy J. Sostrin.
Plaintiff is currently employed by Richard Marcus, DMD, Ari
Marcus' father, and works with Leo and Phillip Marcus,
Ari Marcus* brothers. (Deposition of Noreen Susinno, ECF No.
59-3, at ¶ 8:18 to 9:18). According to Plaintiff, as
part of her employment with Dr. Marcus, her employer, pays
for her cell phone service, though she has purchased the cell
phone itself. (Id. at T9:22 to 10:4).
certification is appropriate when the prerequisites of
Federal Rule of Civil Procedure 23 are met."
Williams v. Jani-King of Phila. Inc., 837 F.3d 314,
318 (3d Cir. 2016). "The class action is 'an
exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties
only.'" Comcast Corp. v. Behrend, 133 S.Ct.
1426, 1432 (2013) (quoting Califano v. Yamasaki, 442
U.S. 682, 700-701 (1979)). To fall within this exception, a
party moving to represent a class "must affirmatively
demonstrate his [or her] compliance with Rule 23."
Id. The Third Circuit has emphasized that
"actual, not presumed, conformance with Rule 23
requirements is essential." Marcus v. BMW of N. Am.,
LLC, 687 F.3d 583, 591 (3d Cir. 2012). "The party
seeking certification bears the burden of establishing each
element of Rule 23 by a preponderance of the evidence."
this burden, plaintiffs must satisfy the four prerequisites
of Rule 23(a) and show that the action can be maintained
under at least one of the three subsections of Rule 23(b).
See Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178,
183 (3d Cir. 2001). These four requirements under Rule 23(a)
are referred to as numerosity, commonality, typicality, and
adequate representation. Id. Additionally, a
plaintiff must show that the proposed class satisfies either
Rule23(b)(1), (b)(2), or (b)(3). Marcus, 687 F.3d at
590 (3d Cir. 2012).
Plaintiff seeks class certification under Rule 23(b)(3),
which requires "questions of law or fact common to class
members predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy." Courts must
"rigorously analyze the evidence used to establish class
certification in order to ensure compliance with Rule 23(a)
and at least one of the subsections of Rule 23(b)."
Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353,
370 (3d Cir. 2015) (citing Comcast, 133 S.Ct. at
1432). "This rigorous analysis may require a district
court to address, at least in part, the merits of a
plaintiffs underlying claim because class determination
generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiffs cause of
23(a)(1) requires that a class action may only be maintained
if "the class is so numerous that joinder of all members
is impracticable." Fed.R.Civ.P. 23(a)(1). "No
minimum number of plaintiffs is required to maintain a suit
as a class action, but generally if the named plaintiff
demonstrates that the potential number of plaintiffs exceeds
40, the first prong of Rule 23(a) has been met." Li
v. Aeterna Zentaris, Inc., 324 F.R.D. 331, 339 (D.N.J.
2018) (quoting Stewart v. Abraham, 275 F.3d 220,
226-27 (3d Cir. 2001)).
the Defendant does not contest, that Plaintiff satisfies the
numerosity requirement. In this case, there are approximately
25, 808 prospective class members identified by unique
telephone numbers in the Broadcast Report. (Broadcast Report,
ECF No. 67-7). This is far above the number of prospective
class members generally found to satisfy the numerosity