Third Circuit Broadens the Reach of the TCPA

In Leyse v. Bank of America (decided on October 14, 2015), the Third Circuit Court of Appeals expanded the universe of potential plaintiffs permitted to sue under the Telephone Consumer Protection Act (TCPA).  The federal statute allows for damages of up to $1500 per call.

The facts of the dispute are as follows: a telemarketer advertising credit cards on behalf of Bank of America called the landline telephone shared by Mark Leyse and his roommate, Genevieve Dutriaux. It is undisputed that Dutriaux was both the telephone subscriber and intended recipient of the call, as the number was associated with her name in the telemarketing company’s records. When the phone was answered (the complaint does not specify whether either roommate or the answering machine picked up), a prerecorded message played, which, if consent from Dutriaux was lacking, violated the advertising restrictions of the TCPA.

Leyse sued but the district court dismissed the complaint, saying he lacked statutory standing because he was not the intended recipient of the call.  However, the Third Circuit has now reversed the district court’s dismissal, finding that because Leyse was a regular user of the phone line and an occupant of the residence that was called, he had his privacy violated and therefore fell within the “zone of interests” protected by the TCPA.

The Third Circuit explained its decision as follows:  “it is clear that the [TCPA’s] zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, 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… Limiting standing to the intended recipient [of the call] would disserve the very purposes Congress articulated in the text of the [TCPA].”

The Third Circuit reinstated the complaint and remanded it to the District of New Jersey, where discovery will go forward.

TAKEAWAY: This decision allows a wider circle of people to file TCPA claims for up to $1500 per call. Under this new precedent, you do not have to be the account holder whose phone actually received the call, nor do you have to be the intended recipient of the call. Expect plaintiffs to test the limits of Leyse’s holding to see if other courts are willing to be as indulgent of other people’s claims as is the Third Circuit.

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