On March 11, 2005, Bank of America (“BofA”) attempted to call Genevieve Dutriaux at her home where she resided with a roommate, Mark Leyse. Dutriaux was the registered subscriber for the phone number that BofA dialed. The call allegedly violated the Telephone Consumer Protection Act (“TCPA”) prohibition against automated marketing or solicitation calls that use artificial or prerecorded messages, also known as “robo-dialing.” There is no allegation that BofA knew that Leyse resided with Dutriaux, or that Leyse answered the call. Under these circumstances, does Leyse have standing to sue BofA for the alleged TCPA violation? Surprisingly, according to the U.S. Court of Appeals for the Third Circuit, the answer is “yes.”

Background

Leyse originally sued BofA in the U.S. District Court for the Southern District of New York, which, in 2010, answered the above question in the negative and dismissed the case. See Leyse v. Bank of America, Nat’l Ass’n, No. 09-cv-7654, 2010 WL 2382400 (S.D.N.Y. June 14, 2010). The court noted that, in his complaint, Leyse had strategically “obscured” the question of whether BofA’s phone call was picked up by Dutriaux, whether it was picked up by Leyse, or whether a message was left on Dutriaux’s answering machine. Id. at *2. But the court determined that this question of fact was legally irrelevant, as the TCPA was meant to protect only the “intended recipient” of a phone call—in this case, Dutriaux. “To find otherwise,” the Court explained, “would mean that when a business calls a person with a prerecorded message, that business could be liable to any individual who answers the phone despite the fact that the business only intended to call one person.” Id. at *5. The U.S. Court of Appeals for the Second Circuit summarily affirmed this decision.

Following this defeat, Leyse brought a substantially identical lawsuit against BofA in the U.S. District Court for the District of New Jersey regarding the same March 11, 2005 phone call. That court promptly dismissed the case based on the doctrine of collateral estoppel, in light of the prior rejection of the original lawsuit by the Southern District of New York and the Second Circuit. But the Third Circuit overturned this decision, noting that collateral estoppel only operates where a lawsuit has previously been rejected on the merits. The court held that it was unclear whether that condition was satisfied here, given that the Second Circuit had not fully elaborated on its reasons for summarily affirming the dismissal of the action.

The case then returned to the federal district court in New Jersey, which dismissed the case once again, this time on the ground that Leyse lacked standing to sue—the same problem previously identified by the district court in New York. Leyse appealed, and the Third Circuit again reversed, holding that the lawsuit could proceed. See Leyse v. Bank of America Nat’l Ass’n, No. 14-cv-4073, 2015 WL 5946456 (3d Cir. Oct. 14, 2015).

The Third Circuit’s Reasoning

The Third Circuit acknowledged that different federal trial and appellate courts had reached different conclusions regarding the scope of standing under the TCPA, with some holding that standing is limited to the “intended recipient” of the call, some limiting standing to the “subscriber” or “primary user” of the telephone, and others holding that the TCPA authorizes any “person or entity” to sue. The Third Circuit then reviewed the statute’s language and legislative history, finding that Congress was motivated by “‘outrage[] over the proliferation’ of prerecorded telemarketing calls to private residences, which consumers regarded as ‘an intrusive invasion of privacy’ and ‘a nuisance.’” Leyse, 2015 WL 5946456, at *6. The Third Circuit concluded that “it is clear that the [TCPA]’s zone of interests encompasses more than just the intended recipients of prerecorded phone calls,” as it is the “actual recipient, intended or not, who suffers the nuisance and invasion of privacy.” Id. at *8.

The Third Circuit did, however, suggest that there are limits to who can sue under the TCPA. A “regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect,” but “a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests.” Leyse, 2015 WL 5946456, at *7. In addition, if the intended recipient previously consented to receiving such automated calls, that consent will operate as a defense, even if the plaintiff is another individual who was inconvenienced by the call. Id. at *8.

Under virtually any interpretation of the TCPA, the Third Circuit arguably should have dismissed the case based simply on Leyse’s failure to allege in his complaint that he was the actual recipient of the phone call from BofA. After all, if Leyse did not answer the call, then he has no case, even under the Third Circuit’s reading of the TCPA. The parties should not have to engage in fact discovery to determine this straightforward point. It is odd that the Third Circuit did not consider that possible basis for dismissal, especially given the earlier discussion by the U.S. District Court for the Southern District of New York of Leyse’s conspicuous avoidance of this issue in his complaint.

In any event, the Third Circuit’s decision illustrates the need for clarification, by the Supreme Court or federal regulators, as to what constitutes a legally actionable injury under the TCPA. As the Leyse matter shows, under the current legal landscape, courts can reach diametrically opposite conclusions as to a plaintiff’s standing to sue under the TCPA, even when the relevant facts are not really in dispute.

Conclusion

The Third Circuit’s Leyse decision has increased the risk of TCPA liability for financial institutions and other businesses that conduct automated marketing calls to current or prospective customers. While it is too soon to tell if the Leyse court’s reasoning will be adopted outside the Third Circuit, companies that make marketing calls to consumers should be aware of the potential exposure they face under the TCPA and should be cognizant of the unpredictability of TCPA litigation. For the time being, at least within the Third Circuit, a telemarketer may face a TCPA claim by a party who was not the intended recipient of a call, so long as that party was a regular user of the phone line and was an occupant of the residence being called. In addition, it seems that such a lawsuit potentially can survive a motion to dismiss even if the plaintiff does not allege that he or she – or anyone – personally answered the call.