Advertising Law Blog

A recent federal court ruling in the Southern District of New York was a blow to plaintiffs who seek to sue telemarketers under the Telephone Consumer Protection Act ("TCPA"). In the case of Leyse v. Bank of America, a June 14th ruling indicated only the "called party" can assert claims under the TCPA. The facts of the case were as follows: in 2005, a telemarketing call containing a pre-recorded message was made to a Ms. Dutriaux, who at the time shared an apartment with a Mr. Leyse. The roommate, Leyse, happened to answer the call and claimed his privacy was disturbed by the call. Both Dutriaux and Leyse filed separate class-action lawsuits under the TCPA. Dutriaux filed in New York, where her case was dismissed in 2008 because New York has a rule that does not allow class actions in TCPA cases. Leyse filed his case in North Carolina, and it was transferred to New York after some legal wrangling. Two weeks ago, the New York court threw out Leyse's case because he was not the intended recipient of the call or the "called party." The court stated, "the uncontroverted evidence shows that DialAmerica, the entity that placed the call on behalf of Bank of America, placed the call to Dutriaux, Leyse's roommate and the telephone subscriber. DialAmerica's records demonstrate that it associated the phone number with Dutriaux, not with Leyse. To the extent that Leyse picked up the phone, he was an unintended and incidental recipient of the call." In light of this ruling, any telemarketer threatened with a TCPA lawsuit should immediately check to see who was the intended recipient of the call in question.