TCPA TALE: 16 Years After Call is Made Appellate Court Finally Sinks TCPA Suit for Lack of Standing

Editor’s note: Original version suggested the case was litigated for 16 years. That’s not right. The call was made over 16 years ago but the case was filed in 2011 for some reason so… yeah. Only about 10 years of litigation.

Real quick, the Third Circuit Court of Appeals held today that a violation of the TCPA does not automatically confer standing. This is the first time the Court has reached the issue directly–although it did so in the context of an unpublished decision. Decision here: Lesye

Instead, to establish standing to assert a TCPA claim a Plaintiff must allege “harm stemming from nuisance, invasions of privacy, and other such injuries.” The Plaintiff had not alleged any such injuries so the dismissal below was affirmed for lack of concrete harm.

That’s all well and good, but the real story here is how abusive TCPA litigation can be.

Stay with me.

The call that started this entire thing–for verily the case arises out of a single pre-recorded call– was made in March, 2005–more than 16 years ago. And the case was eventually dismissed because the Court lacked the standing to consider the dispute to begin with.

So it took over a decade of litigation for the Court to decide the case could not even be considered because the guy hadn’t alleged he had suffered a harm to begin with.

Crazy right? It gets better.

Even more interestingly, the call at issue was not even made to the plaintiff. It was made to the Plaintiff’s roommate. But Plaintiff answered the phone and sued for it.

Sound familiar?

You might recall that another Court recently dismissed a case brought by a guy suing for a call made to his mother. 

But check this out.

The gentleman who just lost the appeal–Leyse–was actually working for the guy who sued for the call to his mother’s cell phone–Bank-at the time he answered the call intended for his roommate.

No, I am dead serious. It says so right in the decision:

At the time of the call, Leyse worked as an investigator for Attorney Todd C. Bank, helping him prepare TCPA lawsuits.  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… During these calls, Leyse used a false name and employer and asked [Defendant] 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 [Defendant] representatives if he wanted to be added to their Do-Not-Call list, Leyse declined.

Are you following this?

The dude literally made calls to companies to scope out their dialing practices–lying all the while–to make secret recordings to help set up TCPA lawsuits brought by another guy who would later sue companies for calls made to his mother.

And its this dude that brought a lawsuit under the TCPA when he answered a call intended for his roommate–even though he did not allege the call caused him any actual harm whatsoever.

No wonder the federal courts kicked him out… I mean, many many years later in oh-so-eventual fashion.

So to recap– nearly a decade of litigation. Over one phone call. To a roommate. That was not alleged to have caused any harm.

You just can’t make this stuff up.

But luckily after the conclusion of this 16 year saga the Plaintiff can probably just re-file the same claim in state court. 🙂

That’s TCPAWorld for you folks. Stay safe (and sane.)


Leave a Reply