Leyse v. Bank of America: The Roommate Can Sue Too

What happened

A telemarketer advertising Bank of America credit cards called a landline Mark Leyse shared with his roommate, Genevieve Dutriaux. She was the subscriber, and the telemarketer's records tied the number to her name. A prerecorded message played. The complaint didn't say whether a person or the answering machine picked up.

Leyse sued in the District of New Jersey. After an earlier trip to the Third Circuit, Bank of America moved to dismiss a second time, arguing Leyse wasn't the "called party," meaning the intended recipient, so he had no right to sue. The district court agreed and dismissed.

A procedural misstep, but harmless

Judge Fuentes wrote for the panel. First, the court held the second motion violated Rule 12(g)(2), which requires defendants to bundle their available Rule 12 defenses into one pre-answer motion. Bank of America could have raised standing the first time. The court noted it disagreed with the Seventh Circuit on that point.

Still, the error was harmless. The bank could simply answer and then move for judgment on the pleadings, and sending the case back would only produce a third appeal. So the court went on to the merits.

What the court held

The private right of action lets any "person or entity" sue, but courts presume a statutory claim extends only to plaintiffs within the law's "zone of interests." The court didn't need to define "called party." Congress's findings showed the TCPA protects residential privacy from robocall nuisance, and the actual recipient is the one who suffers that intrusion.

Here's the line the court drew:

• A houseguest or visitor who picks up probably falls outside the protected zone.
• A regular user of the line who lives in the home "undoubtedly" falls inside it.

The court rejected the worry that callers would face surprise liability. A caller can still raise the consent of the called party as a defense, even when someone else sues. The court also noted the Federal Communications Commission (FCC) had just defined "called party" as the subscriber or a customary user, and had rejected the "intended recipient" reading.

The court vacated the dismissal and remanded. Leyse will have to prove he actually answered the robocall.

Why this matters

Calling the "right" person on paper doesn't settle who can sue. Anyone who lives with the subscriber and regularly uses the line may have a claim, so valid consent is what really protects the caller.

Practical points

1. Get and document consent from the subscriber or customary user before using prerecorded messages.
2. Raise every available defense in your first motion to dismiss.
3. Plaintiffs who aren't the subscriber should be ready to show they regularly used the line and answered the call.

Read the Third Circuit's opinion in Leyse v. Bank of America.