Appeals Court Denies En Banc Request in TCPA Case Over Single Pre-Recorded Message

An Appeals Court yesterday denied an en banc request in a case relevant to the debt collection industry, but it wasn’t the Eleventh Circuit and it wasn’t the Hunstein case. The Third Circuit Court of Appeals yesterday denied an en banc request in a Telephone Consumer Protection Act case over a single phone call after a three-judge panel had determined the plaintiff lacked standing because he only suffered a “bare procedural harm that resulted in no harm.” The denial of the rehearing may bring to a close a case that has been in the Courts for a decade.

The plaintiff in Leyse v. Bank of America National Association had petitioned the court for a rehearing after the panel issued its ruling last month, and the Third Circuit did not let him wait long before informing him that none of the judges on the original panel thought a rehearing was necessary and that a majority of the judges did not vote for a rehearing.

The plaintiff, who happened to work for a lawyer who specialized in filing TCPA lawsuits, answered a call in 2005 on a landline that was intended for the plaintiff’s roommate. The company making the call on behalf of the defendant did not have a representative available, so a pre-recorded message was played.

In 2011, the plaintiff sued the defendant. In his suit, which included a single count violation of the TCPA, the plaintiff did not allege that he suffered any annoyance or nuisance from the call. The defendant moved for summary judgment and won, with the District Court judge ruling the plaintiff lacked standing to sue and that the content of the message did not violate the TCPA.

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