Mark Leyse brought an action against Bank of America under the Telephone Consumer Protection Act of 1991 (TCPA) after receiving a prerecorded telemarketing call on the landline he shares with his roommate, Genevieve Dutriaux. The District Court dismissed the complaint for lack of statutory standing because Dutriaux, not Leyse, was the intended recipient of the call, or the “called party”.

On appeal, however, the Third Circuit has found the District Court to be in error for considering the motion to dismiss, and concluded that Leyse does indeed have statutory standing. The Court’s reasoning is that he is a regular user of the phone line and an occupant of the residence, and that this brings him within the language of the TCPA and the zone of interests it protects.

An attorney representing Dutriaux and Leyse filed multiple class-action lawsuits against Bank of America in multiple districts. The action on appeal in this matter, Mark Leyse v. Bank of America National Association, is from the District of New Jersey, and Leyse is the only named plaintiff.

The parties agree that Leyse’s roommate was the intended recipient of the call. But Leyse claims that he regularly used the phone, and the fact that he was Dutriaux’s roommate indicates that he, too, had a privacy interest in avoiding telemarketing calls to their shared home. Under the zone-of-interests test, Leyse has alleged enough to survive a motion to dismiss, and it was error for the District Court to dismiss the complaint for lack of statutory standing. The Court notes that it is the actual recipient, intended or not, who suffered the nuisance or invasion of privacy. The burden of proof will be on Leyse in the District Court to demonstrate that he answered the telephone when the robocall was received.

In an Opinion filed earlier this week, the Third Circuit has vacated the District Court’s order of dismissal, allowing the case to proceed.


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