SAN FRANCISCO (Legal Newsline) - A federal appeals court has ruled that because the named plaintiff in a class action lawsuit against Verizon failed to carry his burden of demonstrating a likelihood of irreparable harm, the district court properly denied his request for a preliminary injunction.
John Lofton sued Verizon Wireless LLC after the company's debt collector recorded two phone calls without his consent, according to an opinion filed Dec. 5 in the U.S. Court of Appeals for the Ninth Circuit. The appeal was argued Nov. 18.
Circuit judges Sidney Runyan Thomas, Stephen Reinhardt and Morgan Christen voted in the majority and issued a per curiam decision.
"Lofton contends he demonstrated a prima facie case of irreparable harm under Armstrong v. Davis...abrogated on other grounds by Johnson v. California...thereby shifting the burden to Verizon to demonstrate that its policy change mooted his claim," the opinion states.
In Armstrong, a plaintiff may demonstrate a likelihood of future injury by showing that his past injury stems from the defendant’s written policy, or is part of a pattern of officially sanctioned behavior.
Armstrong, however, sets forth tests for constitutional standing to seek injunctive relief," the opinion states. "Moreover, unlike in Armstrong, no class has been certified in this action. Accordingly, Armstrong does not control."
Lofton initially filed his class action lawsuit against Verizon on June 14, 2012, in the Superior Court for the State of California-County of Alameda. The lawsuit was removed to federal court on Dec. 6, 2013.
Lofton claims Verizon violated the California Invasion of Privacy Act by allowing Collecto, one of its debt collectors, to call his cellular phone and record two calls without his consent.
Collecto called Lofton on June 4 and June 7, 2012 intending to reach a Verizon customer with the initials "K.B."
Upon discovering it had reached a wrong number, it recorded both calls without notifying Lofton that the recordings were being made, pursuant to Verizon’s written policy permitting its debt collectors to skip the standard disclosure in such cases.
Lofton filed a motion for class certification and preliminary injunction on Jan. 22.
The district court denied the motion on the basis that Verizon had modified its policy so as to require disclosure on every outgoing call that the call would be recorded, and Lofton had failed to demonstrate that Verizon had imminent plans to revert to its prior policy.
Lofton appealed the denial of the preliminary injunction.
Verizon has revised its written policy to require its debt collectors to disclose on every outgoing call that the call is being recorded.
"It has also adduced evidence that Collecto blocked future calls to Lofton, and that Verizon terminated its contract with Collecto," the opinion states. "Considered in light of this evidence, the mere fact that Verizon formerly maintained a written policy permitting its debt collectors to record calls to wrong numbers without notifying the recipient that it was doing so does not demonstrate a likelihood that Verizon or its debt collectors will call Lofton again and record the call without disclosing this fact."
Because Lofton failed to carry his burden of demonstrating a likelihood of irreparable harm, his motion for preliminary injunction was properly denied, the court ruled.
Lofton is represented vy David C. Parisi and Suzanne Lucille Havens Beckman of Parisi & Havens LLP in Sherman Oaks, Calif., and Ethan Preston of Preston Law Offices in Scottsdale, Ariz.
Verizon is represented by Charles Messer, David J. Kaminski and Stephen Watkins of Carlson & Messer LLP in Los Angeles.
U.S. Court of Appeals for the Ninth Circuit case number: 14-15694
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