Saturday, October 17, 2015
Mark Leyse filed a putative class action against Bank of America after a telemarketer seeking to advertise BoA’s credit cards left a message on the landline shared by Leyse and his roommate. The message allegedly violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(B), which prohibits any person from “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.”
Bank of America filed an initial Rule 12(b)(6) motion to dismiss on grounds of collateral estoppel. The district court agreed, but the Third Circuit reversed.
Bank of America then filed a second 12(b)(6) motion to dismiss on the ground that Leyse lacked statutory standing to sue because his roommate, not he, is the telephone subscriber “and intended recipient of the call, as the number was associated with [his roommate’s] name in the telemarketing company’s records.” Again, the district court dismissed, and the Third Circuit reversed.
The court first held that it was error for the district court to have considered BoA’s second 12(b)(6) motion. A dismissal for lack of statutory standing is not jurisdictional, but “is effectively the same as a dismissal for failure to state a claim” pursuant to Rule 12(b)(6). Rule 12(h)(2) provides that a second motion to dismiss for failure to state a claim “may be raised (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial” – none of which had occurred. However, the court held that the error did not require reversal:
A district court’s decision to consider a successive Rule 12(b)(6) motion to dismiss is usually harmless, even if it technically violates Rule 12(g)(2). So long as the district court accepts all of the allegations in the complaint as true, the result is the same as if the defendant had filed an answer admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h)(2)(B) expressly permits.
Thus, the court continued to the merits of the motion. The TCPA “was intended to combat, among other things, the proliferation of automated telemarketing calls (known as “robocalls”) to private residences, which Congress viewed as a nuisance and an invasion of privacy.”
As was forcefully stated by Senator Hollings, the Act’s sponsor, “Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.”
Accordingly, the Act “provides that a ‘person or entity’ may bring an action to enjoin violations of the statute and recover actual damages or $500 in statutory damages per violation.”
Noting a split among courts in interpreting the statutory standing to sue under this section, the Third Circuit found that Leyse fell “within the class of plaintiffs Congress has authorized to sue.”
[I]t is clear that the Act’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.
Leyse v. Bank of America Nat'l Ass'n, No. 14-4073 (3d Cir. Oct. 14, 2015).