When Mark Leyse picked up his roommate’s phone back in March, 2005 George W. Bush was still president, Obama had just become a Senator, and Trump was hosting only the second season of the Apprentice. Simpler times.
Perhaps Mark knew then what the rest of us could only imagine—that phone call was the most important thing that had ever happened. At least for him. And it would result in fifteen years of litigation against Bank of America, which finally ended this last Friday. Except I’m sure it hasn’t ended just yet.
You see Mark was the first of a new kind of litigant—someone who earns some or most of their living suing under the TCPA (or helping others to do so.) As the story goes, Mark worked as an investigator for his counsel of record, Todd C. Bank, at the time of the Call, helping Todd prepare TCPA lawsuits. In that role, according to the Court records, Plaintiff called companies to determine, inter alia, the number and frequency of the calls they made. During these investigative calls, Plaintiff used a false name, withheld the true purpose of the calls, and secretly recorded the calls. Classy.
He then provided the recordings to Mr. Bank to use in TCPA litigations, performing “well over a hundred” investigative calls, and earning between $40,000 and $75,000 for his “hard work.”
Think what you will of Mark and his chosen profession—and I think plenty about it—his case (terrible as it seemingly was) was initially a great benefit for TCPA defendants. The first opinion ever defining who the “called party” is for purposes of the TCPA’s express consent defense was one of Mark’s. The first Court to look at the issue determined that the “called party” meant the intended recipient of the call—hence the caller needed Mark’s roommate’s consent and not his and Mark lacked standing—according to the court at the time—to pursue the case since he was not the “called party.” This was great stuff.
Three circuit court of appeal decisions and an FCC ruling later the “called party” definition has evolved a bit, but it turns out Mark can still produce some great rulings for the defense bar. In Leyse v. Bank of Am., Civil Action No. 11-7128 (SDW) (SCM), 2020 U.S. Dist. LEXIS 44234 (D. N.J. March 13, 2020) the Court granted long long overdue summary judgment to the defense finding that Mark lacked Article III standing to pursue his claim. As the Court sees it, Mark could not have suffered any harm from the call because he Here, notably, Plaintiff does not assert, nor has he “welcomed such calls in his role as a paid investigator aiding his counsel in the preparation of TCPA lawsuits.” (Remind anyone of my big win in Stoops?) The court determines that since Mark wanted the calls he could not have been harmed. No standing—judgment for the Defense.
But the good news doesn’t stop there. After determining that Mark also lacks statutory standing because he was not within the “zone of interest” protected by the TCPA—that’s a big help keeping out of state court litigation—the Court also determines that a then-existing EBR defense also aided Bank of America. The analysis here is interesting. Mark argued that the Bank’s established business relationship with him didn’t matter because the call was intended for his roommate. But—in a true “hoisted upon his own petard” moment—the Court pointed to the appellate court ruling in Mark’s own case to the effect that the “called party” for consent purposes is the actual recipient and not the intended recipient of the call. Since Plaintiff answered the phone and the Bank had an EBR with him, it had the consent of the “called party.”
Oh that’s just delicious. Right?
Oh and please don’t get confused by the application of the EBR defense here. That defense NO LONGER EXISTS under the TCPA. It applied here only because this phone call is truly ancient folks. The last was changed a number of times since.