Leyse v. Bank of America National Ass'n, 804 F.3d 316

Background

Bank of America hired a telemarketer that placed a prerecorded marketing call to a landline shared by roommates Mark Leyse and Genevieve Dutriaux; Dutriaux was the subscriber and intended recipient.
Leyse (the only named plaintiff) alleges the prerecorded call violated the TCPA’s ban on artificial/prerecorded voice calls to residential telephone lines without the called party’s prior express consent (47 U.S.C. § 227(b)(1)(B)).
Multiple related class actions were filed; Bank of America moved to dismiss Leyse’s New Jersey suit initially on collateral-estoppel grounds and statute-of-limitations grounds; the district court dismissed, a Third Circuit panel vacated in part and remanded.
On remand Bank of America filed a second pre-answer Rule 12(b)(6) motion arguing Leyse lacked statutory standing because he was not the “called party” (the intended recipient).
The District Court entertained that successive pre-answer motion and dismissed Leyse for lack of statutory standing; the Third Circuit found considering the successive Rule 12 motion violated Rule 12(g)(2) but that error was harmless, and proceeded to the merits.
On the merits the court held Leyse — a regular user/occupant of the residence and actual recipient of the robocall — falls within the TCPA’s zone of interests and therefore has statutory standing to sue; the dismissal was vacated and the case remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by considering a second pre-answer Rule 12(b)(6) motion raising a defense available earlier	Bank (opposite view argued below) had opportunity earlier; successive Rule 12 motion was procedurally barred under Rule 12(g)(2)	Bank argued it could raise statutory-standing argument on remand	Considering the successive motion violated Rule 12(g)(2), but the error was harmless; the court reached the merits
Whether statutory standing under the TCPA is limited to the intended recipient ("called party") or extends to actual recipients/regular users of a called residential line	Leyse contended §227(b)(3) authorizes any "person or entity" injured and that actual recipients/regular users are within the statute’s zone of interests	Bank argued "called party" means the intended recipient and Leyse (unintended recipient) lacks statutory standing	The court held the TCPA’s zone of interests covers actual recipients who are regular users/occupants of the called residential line; Leyse has statutory standing
Whether Article III and prudential limits restrict suits by incidental recipients or visitors	Leyse argued Article III injury exists because he was the actual recipient and alleged invasion of privacy/nuisance; zone-of-interests analysis supports his claim	Bank argued allowing anyone who answers would unduly burden callers and expose them despite consent from the intended recipient	Court held Article III and zone-of-interests limitations exclude only persons without a privacy interest (e.g., brief guests), but include regular users/occupants; consent by the called party remains a defense
Proper interpretation/use of TCPA defenses (consent) when actual recipient is not intended recipient	Leyse noted consent of the subscriber may shield callers only if that consent applies to the actual recipient or subscriber/customary user	Bank argued limiting standing prevents unfair, unforeseeable liability when intent and consent were directed to someone else	Court explained the caller may invoke consent of the called party as a defense; permitting suits by actual recipients does not eliminate the consent defense and therefore does not unfairly expose callers

Key Cases Cited

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (Sup. Ct. 2014) (zone-of-interests test limits statutory causes of action)
Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (Sup. Ct. 2012) (TCPA actions are subject to concurrent federal and state jurisdiction)
Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013) (TCPA construed as remedial and consumer-protective)
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (interpretation of "called party" and discussion of subscriber/customary-user approaches)
Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (TCPA standing analysis and interpretation of "called party")