In Leyse v. Bank of Am. Nat’l Ass’n, No. 20-1666, 2021 U.S. App. LEXIS 14897, at *1-3 (3d Cir. May 19, 2021), the Court of Appeals for the Third Circuit found that a TCPA Plaintiff had no standing.
On March 11, 2005, DialAmerica Marketing, Inc., on behalf of Bank of America, called the residential telephone line that Leyse shared with his roommate, Genevieve Dutriaux. Leyse answered the call. DialAmerica did not have a sales representative available to handle the call when it was made, and therefore it played the following prerecorded message: “This call is on behalf of Bank of America at 1-800-201-6872 for telemarketing purposes. We’re sorry we missed you and we will try calling back at another time.” At the time of the call, Leyse worked as an investigator for Attorney Todd C. Bank, helping him prepare TCPA lawsuits.2 In this role, Leyse made investigative calls to companies to determine the number and frequency of the calls they made. During these calls, Leyse used a false name, withheld the true purpose of the calls, and secretly recorded them. He then provided the recordings to Bank to use in TCPA suits such as this one. After the March 11 call, Leyse placed and recorded over 20 calls to DialAmerica and provided the recordings to Bank. During these calls, Leyse used a false name and employer and asked DialAmerica about the services it provided, the numbers it called, the dialing system it used, the number of recorded messages it left per day, and whether the representatives knew that the call violated the TCPA. When twice asked by DialAmerica representatives if he wanted to be added to their Do-Not-Call list, Leyse declined. Leyse sued Bank of America on December 5, 2011.3 The First Amended Class Action Complaint contains a single count of violation of the TCPA. Leyse does not allege that he suffered any annoyance or nuisance from the call and seeks only statutory damages. Following prolonged discovery, Bank of America moved for summary judgment, arguing that (1) Leyse lacked Article III standing to sue under the TCPA, (2) the call was exempt from the TCPA under FCC rules because the parties had an established business relationship in that Leyse was a customer of Bank of America, and (3) the content of the recorded message did not violate the TCPA. The District Court agreed with Bank of America and granted summary judgment in its favor on all three grounds.
The Court of Appeals found no standing to sue.
On appeal, Leyse argues that, with respect to the TCPA, Article III standing does not require any allegations of harm beyond the statutory violations themselves. We decline to adopt such an absolute rule of standing with respect to the TCPA. In a prior appeal in this matter, we held that the TCPA is intended to prevent harm stemming from nuisance, invasions of privacy, and other such injuries. Therefore, Leyse must allege one of those injuries that the TCPA is intended to prevent. The District Court found that Leyse did not assert such an injury. Leyse does not dispute this finding. Accordingly, Leyse cannot show a concrete harm that is necessary to demonstrate an injury-in-fact. Such a demonstration is required to establish Article III standing to sue under the TCPA. Because we hold that Leyse lacks standing, we need not address Leyse’s additional challenges to the District Court’s grant of summary judgment against him.