A federal judge in Trenton has granted class certification in a Telephone Consumer Protection Act suit against health club operator Work Out World.

U.S. District Judge Peter Sheridan granted certification after rejecting WOW's argument that plaintiff Noreen Susinno lacks standing to assert her claims because her employer pays her mobile phone bill. Sheridan also rejected WOW's argument that Susinno spoliated evidence because she failed to preserve the voice mail message she says the company left on her phone without consent.

The case previously was heard at the U.S. Court of Appeals for the Third Circuit, which said the plaintiff's TCPA claim can proceed based on a single call.

The suit claims that WOW, which operates 11 gym facilities in New Jersey, contracted with a vendor in 2010 to make automated calls to solicit former members to rejoin. Susinno claims she received a voice mail message from the company in 2015, and that a different message was left if the automated dialer software detected a live answer to the call. The vendor, Global Connect, estimated that 11,389 telephone numbers answered the prerecorded calls and a prerecorded voice mail message was left for 14,419 telephone numbers.

Violations of the TCPA range from $500 per violation to $1,500 if damages are trebled based on a willful or knowing violation. The suit was brought on behalf of people who used to be members of WOW, or were never members but received calls from WOW or its agent through an automated dialing system using an artificial or prerecorded voice from 2011 to 2015.

Susinno is employed by Richard Marcus, D.M.D., the father of Ari Marcus, the plaintiff's counsel. According to Susinno, she purchased her cellphone but her employer pays for her phone service.

WOW argued that certification should not be granted because Susinno's claims are not typical of the class. The company said Susinno failed to preserve the voice mail message that is the basis of the case, as well as the phone on which she received the message.

But Sheridan rejected that claim, noting WOW failed to show any bad faith on behalf of Susinno in failing to keep the phone or the voice mail. In addition, the evidence was accounted for because Susinno provided an alternate copy of the automated recordings left on class members' phones, Sheridan said.

WOW also claimed Susinno lacked standing to bring her claim because she has not established that she actually received the company's call, since she does not "own the phone number to which the call was allegedly made." But Sheridan said records Susinno obtained from Global Connect shows she received the call and a voice mail recording on her phone, which demonstrates that she is similarly situated to other members of the class.

WOW also argued that Susinno is unqualified to serve as class counsel because she has a close, personal relationship with her lawyer, since she is employed by her lawyer's father. But Sheridan cited a 2007 case from the District of New Jersey holding that  "the existence of a relationship between the named plaintiffs and members of counsel's firm, in the absence of proof that the named plaintiffs would receive a benefit not available to other class members, is not a basis to find that the law firm cannot adequately represent the class."

WOW claimed Susinno's "very livelihood is dependent on counsel's family," but Sheridan said there was no reason to fear that plaintiff would not fulfill her duty but would instead attempt to maximize the "return" for her counsel.

Sheridan granted WOW's motion to dismiss the case in August 2016 based on a conclusion that the single solicitation received by Susinno was not "the type of case that Congress was trying to protect people against." The Third Circuit said in July 2017 that the TCPA's focus on intrusions on privacy in the home, reflecting circumstances when it was written in 1991, does not preclude its application to cellphone calls.

Plaintiff lawyer Marcus, with Marcus & Zelman in Asbury Park, said in a statement, "As technology has advanced, the scourge of unwanted and uninvited robocalls has grown significantly. These updates provide robocallers, such as the Defendant, the ability to call tens of thousands of consumers in one morning.  We are pleased with the court's ruling and look forward to continue fighting for those consumers whose rights have been violated by illegal phone calls."

Joshua Bauchner of Ansell, Grimm & Aaron in Woodland Park, who represents WOW, declined to comment.