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Susinno v. Work Out World, Inc.

United States District Court, D. New Jersey

September 12, 2019

WORK OUT WORLD, INC., et al. Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         Presently 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.[1] ("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.).


         Defendant 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 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).

         According 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.)

         Global 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. 56-7).

         Plaintiffs 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).


         "Class 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." Id.

         To meet 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).

         Here, 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 action." Id.

         1. Rule 23(a)

         a. Numerosity

         Rule 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)).

         Here, 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 ...

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