District Court (N.J.) Finds Unintended Recipient of Call to Cellular Telephone Lacks Standing under TCPA

In Leyse v. Bank of America, 2014 WL 4426325, (D.N.J. 2014), here, Judge Wiggington found that a roommate who answered a call intended for the other roommate who was the defendant’s debtor lacked standing to sue under the TCPA.

In line with that reasoning, Judge Koeltl found that “while the prerecorded message did not address Dutriaux by name and it was Leyse who allegedly answered the phone, Dutriaux was the intended recipient of the call because it was Dutriaux whose name was associated with the telephone number in DialAmerica’s records.” Leyse, 2010 U.S. Dist. LEXIS 58461, at *11-12. The Court held that Leyse lacked standing because “he was an unintended and incidental recipient of the call.” Id. at *11, *16. Judge Koeltl reasoned that: If any person who receives the fax or answers the telephone call has standing to sue, then businesses will never be certain when sending a fax or placing a call with a prerecorded message would be a violation of the TCPA. Under the statute, a business is permitted to send a fax or phone call with a prerecorded message to persons who have given prior express consent or with whom the business has an existing business relationship. See 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(2)(iv). When a business places such a call or sends such a fax, it does not know whether the intended recipient or a roommate or employee will answer the phone or receive the fax. If the business is liable to whomever happens to answer the phone or retrieve the fax, a business could face liability even when it intends in good faith to comply with the provisions of the TCPA. Id. at *12-13. Both Leyse I and Kopff were based on situations where a telemarketer or other commercial party calls or sends a fax to the correct residential number, but the wrongperson (a roommate, or spouse of the intended recipient) actually receives the communication. In those cases, the courts reasoned that to hold business callers liable for unintended communications would exponentially expand the number of potential plaintiffs and would unfairly impose liability on such callers when acting in good faith to comply with the provisions of the TCPA. This Court agrees with the well-reasoned decision of Judge Koeltl and finds that the TCPA cannot be construed as broadly as Plaintiff suggests. Here, the facts demonstrate that Defendants were attempting to contact Dutriaux, not Leyse. Although Leyse answered the call, he was an unintended and incidental recipient of a properly-directed communication to someone else. On these facts, the court’s concern in Leyse I that when unintended recipients of a communication have standing, “a business could face liability even when it intends in good faith to comply with the provisions of the TCPA” is valid. This Court finds that Leyse is not a “called party” under the TCPA and thus lacks standing to bring this suit.