A California federal court recently granted a defendant’s motion to dismiss the Telephone Consumer Protection Act (TCPA) claim brought by a plaintiff alleging that she received a trio of unwanted phone calls, finding that she failed to state a claim under the statute.

Stephanie Brown, a longtime Do Not Call registrant, claimed that she received two phone calls on or around Jan. 19, 2023, promoting Nano Hearing Aids.

A few weeks later, on Feb. 15, 2023, Brown said she received another phone call during which she spoke to someone who said he was with Life Care before transferring the call to someone else. Brown alleged she was given a callback number that, when called, went to Nano Hearing.

Brown then filed a putative class action alleging violations of the TCPA against Nano.

Nano moved to dismiss the lawsuit, arguing that Brown failed to state a claim because she was unable to plausibly allege that Nano, rather than some third party, physically placed the calls.

U.S. District Court Judge Barry Ted Moskowitz agreed.

“Here, Brown merely alleges ‘on information and belief’ that these phone numbers belonged to Nano or Nano’s agent,” he wrote. “The Complaint does not explain the reasons behind this belief.”

Although Brown told the court that she believed the numbers belonged to Nano or its agent because the callers promoted Nano Hearing Aids to her and because one of the calls was transferred to a phone number that connected to Nano, the Court concluded that these allegations were not enough. 

“Brown does not allege that any of the callers identified themselves as representatives of Nano,” the court wrote. “These allegations are insufficient to establish that Nano directly made the calls.”

Further, the only caller whose identity Brown described in the complaint identified himself as an employee of Life Care, not Nano, and Brown did not allege that Life Care was Nano or affiliated with Nano. Brown also alleged only one phone number belonged to Nano and, even if the court accepted that claim as true, the complaint did not indicate that a call was placed from that number.

“The allegation that, after being transferred from a representative of Life Care, someone identified only as ‘Ken’ gave Brown a callback number that reaches Nano is insufficient to show that Nano made any of the calls to Brown,” the court explained.

Judge Moskowitz also considered vicarious liability for Nano, but determined that Brown failed to allege sufficient facts to demonstrate any kind of agency relationship with any third parties who allegedly placed the calls. Brown did not allege that any of the callers identified themselves as Nano’s agents or had any interactions with Nano, nor did any of the allegations support the existence of an agency relationship between the two companies.

Brown contended that it was obvious that some agreement existed between Nano and its agents regarding the placement of calls, the promotion of Nano’s products, and the transfer of the third call.

But the court rejected Brown’s position based on the lack of any facts of interaction between Nano and Brown—or Nano and the callers—that could support a belief that the callers had authority to make calls on Nano’s behalf.

Judge Moskowitz also dismissed for lack of standing because the complaint failed to satisfy the elements of causation and redressability.

Further, Brown could not seek injunctive relief, as she failed to allege any likelihood of future injury. She did not claim to have received any additional calls than three received within one month in 2023, and the timing and number of calls did not show the court that there was a sufficient chance that she might be wronged again in a similar way.

To read the order in Brown v. Nano Hearing Tech Opco, LLC, click here.

Why it matters

The court was not impressed with the sufficiency of the plaintiff’s allegations, finding that they fell short in stating a claim under the TCPA because they failed to connect the defendant with the calls at issue.