About five months after the U.S. Court of Appeals for the Third Circuit revived the case by ruling that a single unwanted promotional call was enough to allege a Telephone Consumer Protection Act violation, a federal judge in New Jersey has allowed it to proceed despite the defense's “apparent … attempt to thwart class certification” by offering to settle for the full amount of the plaintiff's claim.

U.S. District Judge Peter Sheridan, sitting in Trenton, refused Nov. 28 to dismiss the lawsuit, filed by plaintiff Noreen Sussino, against Work Out World Inc. (WOW), even though the gym insisted it had resolved Sussino's claims by depositing $1,501 into her credit card account. The lawsuit alleged that WOW, in leaving a single unsolicited voice mail on Sussino's phone, violated the TCPA.

Sussino alleged that she rejected the settlement offer from WOW and added that the money was instead deposited into her employer's credit card account and that she has received no funds. Sussino had been a member of the gym and the telephone call was intended to attempt to persuade her to rejoin, according to Sheridan's opinion.