John Lofton v. Verizon Wireless (Vaw)

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN LOFTON, an Individual on his own No. 14-15694
behalf and on behalf of all others similarly
situated, D.C. No. 4:13-cv-05665-YGR
Plaintiff - Appellant,
MEMORANDUM*
v.
VERIZON WIRELESS (VAW) LLC,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: THOMAS, Chief Judge, REINHARDT and CHRISTEN, Circuit Judges.
1. In this putative class action, John Lofton alleges, inter alia, that Verizon
Wireless LLC (“Verizon”) violated the California Invasion of Privacy Act, Cal.
Penal Code §§ 630-638, when Collecto—one its debt collectors—called his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cellular phone and recorded 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. On January 22, 2014, Lofton filed a motion for class
certification and preliminary injunction. 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 appeals the
denial of the preliminary injunction.
2. The party seeking a preliminary injunction bears the burden of
demonstrating, among other things, a likelihood of irreparable harm absent
injunctive relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Generally, a party may not moot a claim for injunctive relief simply by voluntarily
ceasing the alleged misconduct, because it could then resume its activity after the
claim is dismissed. Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014). The
party asserting mootness thus bears a “heavy burden of persuading” the court that
the challenged conduct cannot reasonably be expected to start up again. Friends of
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the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 189 (2000). Even
where the defendant’s voluntary cessation does not moot a claim for injunctive
relief, however, we consider cessation of the alleged misconduct in determining
whether the plaintiff has carried his burden of demonstrating a likelihood of
irreparable harm. See TRW, Inc. v. F.T.C., 647 F.2d 942, 953-54 (9th Cir. 1981).
3. Lofton contends he demonstrated a prima facie case of irreparable harm
under Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), abrogated on other
grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005), thereby shifting
the burden to Verizon to demonstrate that its policy change mooted his claim. In
Armstrong, we explained that 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. Id. at 860-61. Armstrong,
however, sets forth tests for constitutional standing to seek injunctive relief. Id.
Morever, unlike in Armstrong, no class has been certified in this action.
Accordingly, Armstrong does not control.
4. Here, 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. Considered in light of this evidence, the mere fact that
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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.
AFFIRMED
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