LEYSE v. BANK OF AMERICA, NATIONAL ASSOCIATION

Filing 241

OPINION. Signed by Judge Susan D. Wigenton on 3/13/2020. (ld, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARK LEYSE, on behalf of himself and all
others similarly situated,
Plaintiff,

Civil Action No. 11-7128 (SDW) (SCM)

v.

OPINION

BANK OF AMERICA, NATIONAL
ASSOCIATION,

March 13, 2020

Defendant.

WIGENTON, District Judge.
Before this Court are Defendant Bank of America, National Association’s (“Defendant” or
“BoA”) Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56
and Motion to Strike Plaintiff Mark Leyse’s (“Plaintiff” or “Leyse”) Expert, as well as Plaintiff’s
Motion for Class Certification pursuant to Rule 23 and Motion to File a Second Amended
Complaint. Jurisdiction is proper pursuant to 28 U.S.C § 1331 and § 1332(d)(2)(A). Venue is
proper pursuant to 28 U.S.C. § 1391. For the reasons discussed below, Defendant’s Motion for
Summary Judgment is GRANTED. Defendant’s Motion to Strike, Plaintiff’s Motion to Amend,
and Plaintiff’s Motion for Class Certification are DISMISSED AS MOOT.

I.

FACTUAL AND PROCEDURAL HISTORY
This case, and two related cases in other jurisdictions, began with a telemarketing phone

call on March 11, 2005 (the “Call” or the “March 11th Call”). (D.E. 222-2 ¶¶ 6, 33–34, 40–41.) 1
DialAmerica Marketing, Inc. (“DialAmerica”), on behalf of Defendant, called the residential
telephone line that Plaintiff shared with his roommate, Genevieve Dutriaux. (Id. ¶ 6.) When the
Call was answered, 2 DialAmerica did not have a sales representative available to handle the call
and, therefore, 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.” (Id. ¶ 7.)
Plaintiff was a BoA customer at the time of the Call and had been for nearly a decade. (Id.
¶¶ 46–47.) Plaintiff also worked as an investigator for his counsel of record, Todd C. Bank, at the
time of the Call, helping him prepare TCPA lawsuits. (Id. ¶ 9.) In that role, Plaintiff called
companies to determine, inter alia, the number and frequency of the calls they made. (Id. ¶ 11.)
During these investigative calls, Plaintiff used a false name, withheld the true purpose of the calls,
and secretly recorded the calls. (Id. ¶¶ 12–13.) He then provided the recordings to Mr. Bank to
use in TCPA litigations such as this one. (Id.) For performing “well over a hundred” investigative
calls, Plaintiff was paid $60 an hour and earned between $40,000 and $75,000. (Id. ¶¶ 10, 14.)
Following the Call, Plaintiff placed more than 20 calls to DialAmerica; Plaintiff recorded
the calls and provided the recordings to Mr. Bank. (Id. ¶¶ 21–26; D.E. 227-1 ¶¶ 21–26.) During

1

Record citations in this opinion are generally to the parties’ Local Rule 56.1 Statements, namely, Defendant’s
Statement of Material Facts Not in Dispute (D.E. 222-2), Plaintiff’s Response to Defendant’s Statement (D.E. 227-1),
Plaintiff’s Supplemental Statement (D.E. 227-2), and Defendant’s Response to Plaintiff’s Supplemental Statement
(D.E. 230-1), as well as the record citations contained therein.

2

It is unclear if Plaintiff answered the Call. He claimed to have answered the Call himself at a June 2017 deposition,
but told DialAmerica representatives in March 2005 that the Call went to his answering machine. (D.E. 222-1 at 12;
D.E. 222-2 ¶ 28.) However, this fact issue is immaterial for the purposes of this motion. See Susinno v. Work Out
World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (holding that a single prerecorded voicemail can incur TCPA liability).

2

these calls, Plaintiff used a false name and employer and inquired about the service DialAmerica
provided, including 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 March 11th Call violated
the Telephone Consumer Protection Act (“TCPA”). (D.E. 222-2 ¶ 27, 29.) 3 Notably, when twice
asked by DialAmerica representatives if he wanted to be added to their Do-Not-Call list, Plaintiff
declined. (Id. ¶ 30.)
Plaintiff filed this suit on December 5, 2011. (D.E. 1.) The First Amended Class Action
Complaint (“FAC”) contains a single count for violation of the TCPA. (D.E. 93-1 ¶¶ 19–22 (citing
47 U.S.C. § 227(b)(1)(B)); see also D.E. 93–94.) Plaintiff does not allege that he suffered any
annoyance or nuisance from the Call and seeks only statutory damages. (D.E. 93-1 ¶¶ 43–45.)
As the Third Circuit observed in this case, almost seven years ago, “[r]arely has one phone
call led to so much litigation.” Leyse v. Bank of Am., Nat. Ass’n, 538 F. App’x 156, 157 (3d Cir.
2013). Because the lengthy procedural history of the case (and its related cases) was summarized
in this Court’s 2016 opinion denying Defendant’s motion for judgment on the pleadings, this Court
refrains from repeating it here. See Leyse v. Bank of Am., 2016 WL 5928683, at *1–3 (D.N.J. Oct.
11, 2016); see also Leyse v. Bank of Am., N.A., 2012 WL 2952428 (D.N.J. July 18, 2012), vacated,
538 F. App’x 156 (3d Cir. 2013), on remand, 2014 WL 4426325 (D.N.J. Sept. 8, 2014), vacated,
804 F.3d 316 (3d Cir. 2015). Following prolonged discovery, Defendant filed, and the parties
briefed, the instant motions. (D.E. 221–22, 227–33, 237–38.)
II.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). The

3

Plaintiff disputes that he took these actions in his capacity as a paid investigator for Mr. Bank. (D.E. 227-2 ¶ 1.)

3

“mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is
only “material” for purposes of a summary judgment motion if a dispute over that fact “might
affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a material
fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical doubt
as to the material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.
2001) (citing Rule 56(e)). “In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477
U.S. at 255).
The nonmoving party “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d
584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party

4

is required to “point to concrete evidence in the record which supports each essential element of
its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which . . . [it has] the burden of proof[,]” then the moving
party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Furthermore,
in deciding the merits of a party’s motion for summary judgment, the court’s role is not to evaluate
the evidence and decide the truth of the matter, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. The nonmoving party cannot defeat summary judgment
simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v.
Antar, 44 F. App’x 548, 554 (3d Cir. 2002).
III.

DISCUSSION
At the time of the Call, the TCPA prohibited making:
any telephone call to any residential telephone line using an artificial or prerecorded
voice to deliver a message without the prior express consent of the called party,
unless the call is initiated for emergency purposes or is exempted by rule or order
by the [Federal Communications] Commission under paragraph (2)(B).

47 U.S.C. § 227(b)(1)(B) (effective December 16, 2003 through July 8, 2005). Paragraph (2)(B)
stated that the Federal Communications Commission (“FCC”):
(B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this
subsection, subject to such conditions as the [FCC] may prescribe. . .
(ii) such classes or categories of calls made for commercial purposes as the
Commission determines-(I) will not adversely affect the privacy rights that this section is
intended to protect; and
(II) do not include the transmission of any unsolicited
advertisement.
47 U.S.C. § 227(b)(2)(B). Defendant argues that summary judgment is appropriate because: (1)
Plaintiff lacks standing to sue, (2) the Call was exempt from the TCPA under FCC rules at the time

5

because the parties had an established business relationship, and (3) the content of Defendant’s
prerecorded message did not violate the TCPA under FCC rules at the time. This Court analyzes
these arguments in turn and finds that each is a separate basis for its grant of summary judgment.
A. Standing
1. Article III Standing
Standing to sue is a doctrine that ensures that federal courts do not exceed the constitutional
limits on their jurisdiction, which extends only to “Cases” and “Controversies.” See Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citing U.S. Const. Art. III
§ 2). “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements[:] The
plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) (other citation omitted).
Defendant argues that Plaintiff lacks constitutional standing under Article III because he
cannot prove injury in fact. “Injury in fact is a constitutional requirement, and ‘it is settled that
Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue
to a plaintiff who would not otherwise have standing.’” Id. at 1547–48 (some punctuation omitted)
(quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)). “To establish injury in fact, a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting
Lujan, 504 U.S. at 560). “Article III standing requires a concrete injury even in the context of a
statutory violation.” Id. at 1549. “[T]he violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact,” in which case, a plaintiff “need not
allege any additional harm beyond the one Congress has identified.” Id. (citations omitted).

6

However, where a bare procedural violation results in no “harm” and no “material risk of harm,”
it is not concrete. See id. at 1550 (vacating and remanding to determine whether the “particular
procedural violations alleged . . . entail[ed] a degree of risk sufficient to meet the concreteness
requirement”).
In this Circuit, “[w]hen one sues under a statute alleging ‘the very injury the statute is
intended to prevent,’ and the injury ‘has a close relationship to a harm traditionally providing a
basis for a lawsuit in English or American courts,’ a concrete injury has been pleaded.” Susinno
v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (some punctuation omitted) (quoting In
re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 639–40 (3d Cir. 2017)). 4 In
Susinno, the Third Circuit held that the plaintiff had pleaded a concrete injury where she alleged
she received a prerecorded voicemail, finding that the plaintiff’s assertion of “‘nuisance and
invasion of privacy’ resulting from a single prerecorded telephone call” was the “very harm that
Congress sought to prevent,” and finding that the plaintiff’s claim closely related to the traditional
claim for intrusion upon seclusion. Id. at 351–52.
Here, notably, Plaintiff does not assert, nor has he put forward any evidence to show, that
he suffered nuisance, annoyance, inconvenience, wasted time, invasion of privacy, or any other
such injury. See Lujan, 504 U.S. at 561 (noting that when opposing a motion for summary
judgment, a plaintiff “must ‘set forth’ by affidavit or other evidence ‘specific facts’” establishing
an “injury resulting from the defendant’s conduct.” (citations omitted)). Nor could he, because the
record evidence clearly shows that he welcomed such calls in his role as a paid investigator aiding
his counsel in the preparation of TCPA lawsuits. (See D.E. 222-2 ¶¶ 9–15.) No other plausible

4

The rule is one of inclusion, not exclusion. See Susinno, 862 F.3d at 351 (“We do not, and need not, conclude that
intangible injuries falling short of this standard are never concrete. Rather, we simply observe that all intangible
injuries that meet this standard are concrete.” (emphasis in original) (internal citation omitted)).

7

inference can be drawn from the 20+ follow-up calls he made to DialAmerica, the types of
questions he asked DialAmerica’s representatives, his use of a false name and employer, his secret
recordings of the calls, his submission of those recordings to his counsel, and, especially, his
refusal to be added to DialAmerica’s Do-Not-Call list when he was twice given the opportunity.
(Id. ¶¶ 20–32.) On these facts, no reasonable jury could find that Plaintiff suffered an Article III
injury. Having asserted only a procedural violation that resulted in no harm and no material risk
of harm, (see D.E. 222-2 ¶ 44), Plaintiff fails to meet his burden of establishing the elements of
standing and summary judgment is therefore warranted. See Lujan, 504 U.S. at 561; Spokeo, 136
S. Ct. at 1550 (stating that plaintiff cannot “allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of Article III” (citation omitted)). 5
2. Statutory Standing
In the alternative, summary judgment is also appropriate because plaintiff lacks statutory
standing. See Leyse, 804 F.3d at 324 (3d Cir. 2015) (“Article III is not the only barrier faced by
potential plaintiffs.”). “[A] statutory cause of action extends only to plaintiffs whose interests ‘fall
within the zone of interests protected by the law invoked.’ . . . . [It is] unlikely that ‘Congress
meant to allow all factually injured plaintiffs to recover.’” Id. (quoting Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)). On examining the TCPA’s zone of
interests, the Third Circuit concluded that:
It is the actual recipient, intended or not, who suffers the nuisance and invasion of
privacy. This does not mean that all those within earshot of an unwanted robocall
5
Furthermore, as discussed more fully in Section III.B, infra, Plaintiff in fact consented to be called by Defendant
pursuant to the TCPA’s “established business relationship” exemption. Plaintiff actively maintained a bank account
with Defendant at the time of the March 11th call and, therefore, should not have been surprised to receive a call from
Defendant. See In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 20 FCC Rcd. 3788, 3798 ¶ 26
(Feb. 18, 2005) (“2005 FCC Order”) (“Consumers should not be surprised to receive a call from a bank at which they
have an account. . . .”) Such calls were exempt from TCPA liability in March 2005 because a call made to “someone
with whom a prior business relationship exists does not adversely affect consumer privacy interests.” Tel. Consumer
Prot. Act of 1991, 77 Fed. Reg. 34233-01, 34237 ¶ 19 (June 11, 2012) (“2012 FCC Order”). Thus, because Plaintiff
consented to calls from Defendant, he cannot plausibly claim that he was injured by Defendant’s call.

8

are entitled to make a federal case out of it. Congress’s repeated references to
privacy convince us that a mere houseguest or visitor who picks up the phone would
likely fall outside the protected zone of interests. On the other hand, a regular user
of the phone line who occupies the residence being called undoubtedly has the sort
of interest in privacy, peace, and quiet that Congress intended to protect.
Id. at 326. As explained above, Plaintiff has not established that he suffered any “nuisance [or]
invasion of privacy,” see id., and the record suggests instead that he welcomed and consented to
the March 11th Call. In this sense, Plaintiff had less of an “interest in [the] privacy, peace, and
quiet that Congress intended to protect” than even the houseguest who picks up an unwanted call—
someone who does not fall under the TCPA’s zone of interests. See id. Summary judgment is
therefore also warranted for lack of statutory standing.
B. Established Business Relationship
Even if Plaintiff has standing to litigate his claim, Defendant is protected from TCPA
liability for the March 11th Call under the “established business relationship” exemption. Under
FCC regulations in effect in March 2005, the TCPA did not apply to calls made by a business to
customers with whom that business had an established relationship in the 18 months preceding the
call. See 47 C.F.R. § 64.1200(a)(2)(iv) (effective through May 12, 2005); 2005 FCC Order, 20
FCC Rcd. at 3797–98 ¶ 26. 6,

7

The 2005 FCC Order explicitly stated that “financial agreements,

including bank accounts,” constituted ongoing relationships that permitted a company “to contact

6

At the time of the Call, the term “established business relationship” was defined as:
a prior or existing relationship formed by a voluntary two-way communication between a person or
entity and a residential subscriber with or without an exchange of consideration, on the basis of the
subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately
preceding the date of the telephone call . . . which relationship has not been previously terminated
by either party.

47 C.F.R. § 64.1200(f)(3) (effective through May 12, 2005).
7

In 2012, the FCC eliminated the established business relationship exemption with respect to telemarketing robocalls
to residential lines. See In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830,
1837 (2012). There is no indication in the 2012 order that it was intended to apply retroactively, nor do courts
generally apply FCC regulations retroactively. See, e.g., Roberts v. PayPal, Inc., 621 F. App’x 478, 479 (9th Cir.
2015); Latner v. Mount Sinai Health Sys., Inc, 879 F.3d 52, 55 n.2 (2d Cir. 2018), as amended (Jan. 9, 2018).

9

the consumer to, for example, notify them of changes in terms of a contract or offer new products
and services that may benefit them.” Id. (emphasis added). Because Plaintiff was an active BoA
customer at the time of the March 11th Call, (D.E. 222-2 ¶ 47), the Call was exempt from the TPCA
under the established business relationship exemption. See, e.g., Zelma v. Conway, Civ. No. 12256, 2013 WL 6498548, at *2 (D.N.J. Dec. 11, 2013) (dismissing TCPA claim after finding that
an established business relationship existed where plaintiff’s wife elected to receive a free
magazine subscription from defendant).
Plaintiff argues that the claimed exemption does not apply here because Defendant
intended to call Plaintiff’s roommate with whom it did not have an established business
relationship. (D.E. 227 at 31–34.) 8 The distinction appears meaningless, however, following the
Third Circuit’s 2015 decision in this case, holding that it is the actual recipient of the call (intended
or not) who is the “called party” under the TCPA. Leyse, 804 F.3d at 325–27. Because the TCPA
does not apply to calls made “with the prior express consent of the called party,” 47 U.S.C.
§ 227(b)(1)(A) (2005) (emphasis added), and an established business relationship effectively

8
Plaintiff also argues that the call was not exempt because it was not made “pursuant” to the parties’ established
business relationship (i.e., the relationship was not Defendant’s reason for the call). (See D.E. 227 at 34 (quoting
Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 68 Fed. Reg. 44144-01, 44158 ¶ 80).) The quoted
FCC order states:

Moreover, the [established business relationship] exemption focuses on the relationship between the
sender of the message and the consumer, rather than on the content of the message. It appears that
consumers have come to expect calls from companies with whom they have such a relationship, and
that, under certain circumstances, they may be willing to accept these calls. . . . Therefore, we retain
the exemption for established business relationship calls from the ban on prerecorded messages.
Telemarketers that claim their prerecorded messages are delivered pursuant to an established
business relationship must be prepared to provide clear and convincing evidence of the existence of
such a relationship.
68 Fed. Reg. at 44158 ¶ 80 (emphasis added). This language reinforces the application of the exemption, because
“the exemption focuses on the relationship between the sender of the message and the consumer” who receives the
call, and a caller asserting the defense need only present “clear and convincing evidence of the existence of such a
relationship.” Id. The order does not discuss the purpose of the call or require any showing with respect to purpose
in order to utilize the defense.

10

establishes consent, see 2012 FCC Order, 77 Fed. Reg. at 34237 ¶ 19, the exemption applies here
under the plain language of the statute and regulation. 9 Summary judgment is therefore warranted.
C. Content of the Call
Finally, even if Plaintiff has standing to sue and the established business relationship
exemption does not apply, summary judgment must still be granted because the content of the Call
itself did not violate FCC regulations applicable at the time regarding abandoned telemarketing
calls and dual-purpose calls.
The parties agree that the initial Call to Plaintiff contained a prerecorded message which
was lawful (and required) under applicable abandoned call regulations. 10, 11 (FAC ¶ 10, D.E. 2271 ¶ 8.) Such regulations stated, in relevant part:
A call is “abandoned” if it is not connected to a live sales representative within two
(2) seconds of the called person’s completed greeting. Whenever a sales
representative is not available to speak with the person answering the call, that
person must receive, within two (2) seconds after the called person’s completed
greeting, a prerecorded identification message that states only the name and
telephone number of the business, entity, or individual on whose behalf the call was
placed, and that the call was for “telemarketing purposes.” The telephone number
so provided must permit any individual to make a do-not-call request during regular
business hours for the duration of the telemarketing campaign.

9

On appeal at the Third Circuit, Plaintiff argued that if the “called party” was only the intended recipient,
“telemarketers would be able to routinely avoid liability by claiming that they had ‘associated’ a telephone number
with a person other than the plaintiff.” (Pl.-Appellant’s Reply Br. at 4, No. 14-4073 (3d Cir. Mar. 20, 2015).) Now,
after winning that appeal, Plaintiff seeks to avoid the lack of liability by claiming that the established business
relationship exemption can only apply to the intended recipient of the call (here, Defendant’s roommate). Plaintiff
cannot have it both ways.

10

As discussed above, the March 11th Call contained a prerecorded message which stated: “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.” (D.E. 222-2 ¶ 7.)
11

When Defendant moved for judgment on the pleadings in 2016 on the basis that the March 11th Call was exempt
from the TCPA because it complied with abandoned call regulations, this Court denied the motion because “the
Complaint [alleged] that the number provided in the message did not allow Plaintiff to ‘make a do-not-call request
during regular business [hours].’” Leyse v. Bank of Am., 2016 WL 5928683, at *6 (D.N.J. Oct. 11, 2016) (citing
Compl. ¶¶ 12–16). Following discovery, it is now clear that Plaintiff declined two opportunities to make a do-notcall request when he called the telephone number contained in the abandoned call message. (D.E. 227-1 ¶¶ 30–31.)

11

47 C.F.R. § 64.1200(a)(6) (effective through May 12, 2005). Plaintiff alleges, however, that the
Call became an unlawful “dual-purpose call” (i.e., for both a lawful and unlawful purpose) when
he called the number contained in the prerecorded message only to hear another prerecorded
message containing the following “unsolicited advertisement” for a credit card:
Thank you for calling about the Bank of America Credit Card. If you’ve already
submitted your application, press 1. If you have questions about your existing Bank
of America Credit Card, press 2. To complete your request for a Bank of America
Credit Card, press 3. Press 4 if you would like to speak to a representative in
reference to a call you received.
(FAC ¶¶ 12–15 (parenthetical numbering omitted); see D.E. 227 at 27–28.)
The “dual-purpose” doctrine does not apply to the abandoned call message that Plaintiff
received. The applicable FCC order discusses dual-purpose calls in the context of “unsolicited
advertisements” that contain both customer service and marketing elements. In re Rules & Regs.
Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14098–99 ¶ 142 (July 3,
2003) (“2003 FCC Order”). The 2003 FCC Order states that “[i]f the call is intended to offer
property, goods, or services for sale either during the call, or in the future (such as in response to
a message that provides a toll-free number), that call is an advertisement.” Id. However, the same
order creates an exception for abandoned call messages that provide a number for call recipients
to call and make a do-not-call request. See id. at 14108 ¶ 155 (comparing the exception to the
Federal Trade Commission’s “safe harbor” provision for similar messages). Plaintiff was able to
do exactly that—when he called the number in the abandoned call message, he was able to speak
to representatives who asked if he wished to make a do-not-call request, which he declined to do.
(D.E. 227-1 ¶¶ 30–31.) The March 11th Call, therefore, did not violate the TCPA. 12

12

That the callback number presented other options related to a credit card application is not sufficient to remove the
abandoned call message from the “safe harbor” provision. See 2003 FCC Order at 14108 ¶ 155 (“caution[ing] that
additional information in the [abandoned call] prerecorded message constituting an unsolicited advertisement would

12

IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment is

GRANTED.

Defendant’s Motion to Strike, Plaintiff’s Motion to File a Second Amended

Complaint, and Plaintiff’s Motion for Class Certification are DISMISSED AS MOOT. 13,

14

An

appropriate order follows.
s/ Susan D. Wigenton_______
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

Orig:
cc:

Clerk
Hon. Steven C. Mannion, U.S.M.J.
Parties

be a violation of our rules” in calls made by the telemarketer to a consumer, but not cautioning similarly for calls made
by the consumer to the telemarketer).
13
Plaintiff moved to amend the FAC to change the proposed class period from December 5, 2007 through the present
to October 1, 2003 through November 30, 2006 (or, alternatively, from March 11, 2005 through November 30, 2006).
(See D.E. 231-1, 231-4.) The proposed change, if permitted, would not have affected the grounds on which this Court
grants summary judgment.
14
Under Rule 23(a), a class may be certified only if “(1) the class is so numerous that joinder of all members is
impracticable [“numerosity”]; (2) there are questions of law or fact common to the class [“commonality”]; (3) the
claims or defenses of the representative parties are typical of the claims or defenses of the class [“typicality”]; and (4)
the representative parties will fairly and adequately protect the interests of the class [“adequacy”].” Rule 23(a); see
also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590–91 (3d Cir. 2012). Under Rule 23(b)(3), a party seeking
class certification must also “prove by a preponderance of the evidence that the class is ascertainable
[“acertainability”],” that “questions of law or fact common to class members predominate over any questions affecting
only individual members [“predominance”], and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy [“superiority”].” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015),
as amended (Apr. 28, 2015); see also Marcus, 687 F.3d at 591–593; Rule 23(b)(3). This Court notes that, even if it
did not grant summary judgment, it would not certify the proposed class. Among other deficiencies, the proposed
class is rife with individualized issues such that questions common to the class do not predominate. For example,
there are no records indicating that other putative class members heard a similar abandoned call message, called the
number left in that message, and heard a prerecorded message similar to the one Plaintiff heard. For any such putative
class members, an individualized inquiry would be needed to establish that they were not BoA customers at the time
of the calls. Furthermore, Plaintiff’s interest in receiving the March 11th Call in light of his work as a TCPA
investigator for his counsel calls into question both the typicality of his claims and defenses and his adequacy as a
class representative.

13