                               NOT FOR PUBLICATION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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