Third Circuit Affirms Summary Judgment for TCPA Defendant for Lack of Harm


On May 19, 2021, the United States Court of Appeals for the Third Circuit unanimously affirmed a district court’s decision granting summary judgment for Bank of America in a Telephone Consumer Protection Act (“TCPA”) class action case.  Leyse v. Bank of America, N.A., No. 20-1666, (3d Cir. May 19, 2021).  The Third Circuit found that Plaintiff lacked standing because he failed to allege an injury from having received a prerecorded telemarketing call on his landline.  The decision is a good reminder for companies defending against TCPA lawsuits to inquire into the plaintiff’s conduct to determine if there has been any alleged harm, including whether the plaintiff actively solicited telemarketing calls for purposes of initiating such suits.  

In March 2005, DialAmerica Marketing, on behalf of Bank of America, called Plaintiff’s residential landline (which he shared with a roommate) and played a prerecorded message when a sales representative was not available to handle the call.  Plaintiff sued Bank of America based on this call, claiming it had violated the TCPA.  Bank of America moved for summary judgment, arguing, among other things, that Plaintiff lacked Article III standing to sue under the TCPA. 

Under Article III, a plaintiff must establish that he has standing to sue.  To maintain suit, he must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”  The Third Circuit analyzed only the first requirement – injury-in-fact – under which a plaintiff must allege a concrete and particularized invasion of a legally protected interest that is “actual or imminent, not conjectural or hypothetical.”  While Plaintiff argued that Article III standing does not require an allegation of harm beyond the statutory violation itself, the Third Circuit declined to adopt such an absolute rule with respect to the TCPA.  The Court of Appeals explained that “the TCPA is intended to prevent harm stemming from nuisance, invasions of privacy, and other such injuries,” and therefore, Plaintiff was required to allege one of those injuries.

But Plaintiff did not assert that he suffered nuisance, annoyance, inconvenience, wasted time, invasion of privacy, or any other such injury.  Nor could he.  At the time Plaintiff received the call, he worked as an investigator for a TCPA plaintiffs’ attorney.  As an investigator, Plaintiff would call companies to learn about the nature and frequency of their telemarketing calls, while disguising his identity, recording the calls and withholding his true purpose for the call. As the district court noted, Plaintiff performed “well over a hundred” investigative calls, for which he was paid $60 an hour, and earned between $40,000 and $75,000.  In this instance, after Plaintiff received the allegedly offending call to his landline, he placed over 20 investigative calls to DialAmerica under a false name, solicited information from them about their dialing system and telemarketing methods, declined DialAmerica’s repeated offers to add him to their do-not-call list and provided the recordings of his calls to his employer, the TCPA plaintiffs’ attorney.  The record clearly showed that, far from suffering any injury, Plaintiff welcomed and, in fact, actively solicited allegedly offending telemarketing calls in his role as a paid investigator aiding his employer in preparing TCPA lawsuits.  Moreover, the district court found that “[n]o other plausible inference can be drawn from the 20+ follow-up calls [Plaintiff] made to DialAmerica, the types of questions he asked DialAmerica’s representatives, his use of a false name and employer, his secret recordings of the calls, his submission of those recordings to his counsel, and, especially, his refusal to be added to DialAmerica’s Do-Not-Call list when he was twice given the opportunity.”

Because Plaintiff did not assert a cognizable injury and was unable to show a concrete harm that he suffered from receiving the call, the Third Circuit affirmed the district court’s order granting summary judgment for Bank of America.  For companies facing TCPA lawsuits, especially by serial TCPA litigators, Leyse is a great example of why it is necessary to scrutinize the plaintiff’s allegations of harm and thoroughly explore in discovery the plaintiff’s conduct in connection with allegedly offending calls.