1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEREMY LUCKAU, Case No. 25-cv-01661-JST
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 SUNRUN, INC, et al., Re: ECF No. 42 Defendants. 11
12 13 Before the Court is a motion to dismiss brought by Defendants Sunrun Inc. and Clean 14 Energy Experts, LLC. ECF No. 42. Defendants seek to dismiss Plaintiff Jeremy Luckau’s second 15 claim for relief for violation of 47 C.F.R. § 64.1200(d)(4), a regulation promulgated under the 16 Telephone Consumer Protection Act of 1991 (“TCPA”). 17 The Court previously held that Luckau sufficiently alleged a concrete injury—receiving 18 unsolicited telemarking phone calls—but stated the Court’s inclination to dismiss the challenged 19 claim on grounds that the alleged injury was not fairly traceable to Defendants’ alleged violation 20 of Section 64.1200(d)(4). ECF No. 48 at 2–4; see Spokeo v. Robins, 578 U.S. 330, 338 (2016) 21 (explaining that standing requires the plaintiff to “have (1) suffered an injury in fact, (2) that is 22 fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by 23 a favorable judicial decision”). The Court explained:
24 Neither party considers that the requirement to identify “the name of the person or entity on whose behalf the call is being made,” 47 25 C.F.R. § 64.1200(d)(4), is part of the TCPA’s requirement to maintain an internal do-not-call list. Section 64.1200(d) provides, 26 “No person or entity shall initiate . . . any call for telemarketing purposes to a residential telephone subscriber unless such person or 27 entity has instituted procedures for maintaining a list of persons who is one of the “minimum standards” that the instituted procedures 1 must satisfy. Id.
2 Luckau does not allege that he ever requested to be placed on Defendants’ internal do-not-call list. He therefore appears to lack 3 standing to assert a claim for violation of Section 64.1200(d)(4) because “even if Defendants had complied with the TCPA and 4 maintained an internal do-not-call list [that complied with all of the regulatory requirements], their compliance would not have 5 prevented a call to [Luckau] because he would not have been on that list.” Perrong v. S. Bay Energy Corp., No. 2:20-cv-5781-JDW, 6 2021 WL 1387506, at *3 (E.D. Pa. Apr. 13, 2021) . . . .
7 . . . . Luckau’s alleged harm stems from receiving unsolicited phone calls. As the Perrong court concluded, that harm might be traceable 8 to a different section of the TCPA, 64.1200(c)(2), which bars calls to numbers listed on the National Do Not Call Registry, but it cannot 9 be traced to Section 64.1200(d). 10 ECF No. 48 at 3–4 (alterations in original). “Because the parties’ briefing did not analyze 11 traceability in the above manner and did not address some of the authority cited” by the Court, the 12 Court allowed the parties an opportunity to file supplemental briefing. Id. at 4–5. The parties 13 timely filed supplemental briefs. ECF Nos. 50, 52. 14 Having reviewed the parties’ additional arguments, the Court continues to conclude that 15 Luckau lacks standing to make a claim under Section 64.1200(d)(4).1 Luckau’s additional 16 arguments are not persuasive. First, Luckau argues, “Courts have recognized at least five” 17 “concrete injuries that are independent of any stop request or future calls”: “(1) Inability to pre- 18 select to whom the consumer wishes to speak, (2) Inability to evaluate the content and veracity of 19 the message, (3) Inability to determine the purpose of the call, (4) Inability to possibly make a do 20 not call request, and (5) Inability to monitor compliance with the law.” ECF No. 50 at 2. 21 However, with one exception, the authorities cited to support that argument did not discuss 22 whether any of the listed wrongs constitutes an Article III injury. See Maryland v. Universal 23 Elections, Inc., 729 F.3d 370, 377 (4th Cir. 2013) (discussing government interests in determining 24 constitutionality of the TCPA); FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 855 (10th 25 Cir. 2003) (same, as to FTC’s rule creating a national do-not-call list); Nat’l Fed’n of the Blind v. 26 FTC, 420 F.3d 331, 342–43 (4th Cir. 2005) (same, following Mainstream Mktg.). The exception 27 1 is Robison v. 7PN, LLC, 569 F. Supp. 3d 1175, 1185 (D. Utah 2021), the reasoning of which the 2 Court considered and rejected in its prior order. ECF No. 48 at 4. Moreover, Luckau has not 3 persuaded the Court that the allegations in this case implicate the above issues, even if any of them 4 constituted Article III injuries in fact. Luckau alleges that the messages included a company name 5 and phone number, which he alleges is the number Sunrun instructs consumers to call if they want 6 to opt out from marketing calls, and the messages also indicated that the call was “responding to 7 your request for information on solar energy for your home.” ECF No. 29 ¶¶ 24, 53. As the Court 8 previously observed, “this is not a case where alleged noncompliance with Section 64.1200(d)(4) 9 would have left [Luckau] unable to determine how to make a stop request.” ECF No. 48 at 4. 10 Second, Luckau argues that the cases relied on by the Court in its prior order are 11 distinguishable because those cases alleged violations of Section 64.1200(d)(1)–(3), whereas he 12 alleges a violation of Section 64.1200(d)(4). Relatedly, he argues that Section 64.1200(d)(4) “is 13 not merely a subsidiary detail of the company-specific do-not-call regime; it is an alternative, 14 standalone protection Congress envisioned.” ECF No. 50 at 5. Luckau is correct that the cases 15 cited by the Court did not consider standing under Section 64.1200(d)(4), though one court did 16 consider an overarching claim, encompassing all of Section 64.1200(d). See Thompson v. Vintage 17 Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052, at *7 (E.D. Mo. Feb. 8, 2024), 18 reconsideration granted on other grounds, 2024 WL 1636705 (E.D. Mo. Apr. 16, 2024) (finding 19 no standing for claims that the defendant failed to “(1) institute procedures for maintaining a list of 20 persons who request not to be called [Section 64.1200(d)]; (2) have a written policy, available 21 upon demand, for maintaining a do-not-call list [Section 64.1200(d)(1)]; and (3) train and inform 22 its personnel engaged in any aspect of telemarketing of the existence and use of the do-not-call list 23 [Section 64.1200(d)(2)]” (citation modified)); Doane v. Benefytt Techs., Inc., Civ. Action No. 22- 24 10510-FDS, 2023 WL 2465628, at *7 & n.2 (D. Mass. Mar. 10, 2023) (finding no standing for 25 claims under Sections 64.1200(d)(1) and (d)(3), and noting that the defendant did not move to 26 dismiss for lack of standing the plaintiff’s claim under Section 64.1200(d)(4)); Perrong, 2021 WL 27 1387506, at *2–3 (E.D. Pa. Apr. 13, 2021) (finding no standing for claim under Section 1 “standalone protection” for caller identification requirements, Luckau brought a claim under 2 || Section 64.1200(d)(4)—a requirement that applies only as part of an entity’s minimum procedures 3 for maintaining an internal do-not-call list.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEREMY LUCKAU, Case No. 25-cv-01661-JST
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 SUNRUN, INC, et al., Re: ECF No. 42 Defendants. 11
12 13 Before the Court is a motion to dismiss brought by Defendants Sunrun Inc. and Clean 14 Energy Experts, LLC. ECF No. 42. Defendants seek to dismiss Plaintiff Jeremy Luckau’s second 15 claim for relief for violation of 47 C.F.R. § 64.1200(d)(4), a regulation promulgated under the 16 Telephone Consumer Protection Act of 1991 (“TCPA”). 17 The Court previously held that Luckau sufficiently alleged a concrete injury—receiving 18 unsolicited telemarking phone calls—but stated the Court’s inclination to dismiss the challenged 19 claim on grounds that the alleged injury was not fairly traceable to Defendants’ alleged violation 20 of Section 64.1200(d)(4). ECF No. 48 at 2–4; see Spokeo v. Robins, 578 U.S. 330, 338 (2016) 21 (explaining that standing requires the plaintiff to “have (1) suffered an injury in fact, (2) that is 22 fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by 23 a favorable judicial decision”). The Court explained:
24 Neither party considers that the requirement to identify “the name of the person or entity on whose behalf the call is being made,” 47 25 C.F.R. § 64.1200(d)(4), is part of the TCPA’s requirement to maintain an internal do-not-call list. Section 64.1200(d) provides, 26 “No person or entity shall initiate . . . any call for telemarketing purposes to a residential telephone subscriber unless such person or 27 entity has instituted procedures for maintaining a list of persons who is one of the “minimum standards” that the instituted procedures 1 must satisfy. Id.
2 Luckau does not allege that he ever requested to be placed on Defendants’ internal do-not-call list. He therefore appears to lack 3 standing to assert a claim for violation of Section 64.1200(d)(4) because “even if Defendants had complied with the TCPA and 4 maintained an internal do-not-call list [that complied with all of the regulatory requirements], their compliance would not have 5 prevented a call to [Luckau] because he would not have been on that list.” Perrong v. S. Bay Energy Corp., No. 2:20-cv-5781-JDW, 6 2021 WL 1387506, at *3 (E.D. Pa. Apr. 13, 2021) . . . .
7 . . . . Luckau’s alleged harm stems from receiving unsolicited phone calls. As the Perrong court concluded, that harm might be traceable 8 to a different section of the TCPA, 64.1200(c)(2), which bars calls to numbers listed on the National Do Not Call Registry, but it cannot 9 be traced to Section 64.1200(d). 10 ECF No. 48 at 3–4 (alterations in original). “Because the parties’ briefing did not analyze 11 traceability in the above manner and did not address some of the authority cited” by the Court, the 12 Court allowed the parties an opportunity to file supplemental briefing. Id. at 4–5. The parties 13 timely filed supplemental briefs. ECF Nos. 50, 52. 14 Having reviewed the parties’ additional arguments, the Court continues to conclude that 15 Luckau lacks standing to make a claim under Section 64.1200(d)(4).1 Luckau’s additional 16 arguments are not persuasive. First, Luckau argues, “Courts have recognized at least five” 17 “concrete injuries that are independent of any stop request or future calls”: “(1) Inability to pre- 18 select to whom the consumer wishes to speak, (2) Inability to evaluate the content and veracity of 19 the message, (3) Inability to determine the purpose of the call, (4) Inability to possibly make a do 20 not call request, and (5) Inability to monitor compliance with the law.” ECF No. 50 at 2. 21 However, with one exception, the authorities cited to support that argument did not discuss 22 whether any of the listed wrongs constitutes an Article III injury. See Maryland v. Universal 23 Elections, Inc., 729 F.3d 370, 377 (4th Cir. 2013) (discussing government interests in determining 24 constitutionality of the TCPA); FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 855 (10th 25 Cir. 2003) (same, as to FTC’s rule creating a national do-not-call list); Nat’l Fed’n of the Blind v. 26 FTC, 420 F.3d 331, 342–43 (4th Cir. 2005) (same, following Mainstream Mktg.). The exception 27 1 is Robison v. 7PN, LLC, 569 F. Supp. 3d 1175, 1185 (D. Utah 2021), the reasoning of which the 2 Court considered and rejected in its prior order. ECF No. 48 at 4. Moreover, Luckau has not 3 persuaded the Court that the allegations in this case implicate the above issues, even if any of them 4 constituted Article III injuries in fact. Luckau alleges that the messages included a company name 5 and phone number, which he alleges is the number Sunrun instructs consumers to call if they want 6 to opt out from marketing calls, and the messages also indicated that the call was “responding to 7 your request for information on solar energy for your home.” ECF No. 29 ¶¶ 24, 53. As the Court 8 previously observed, “this is not a case where alleged noncompliance with Section 64.1200(d)(4) 9 would have left [Luckau] unable to determine how to make a stop request.” ECF No. 48 at 4. 10 Second, Luckau argues that the cases relied on by the Court in its prior order are 11 distinguishable because those cases alleged violations of Section 64.1200(d)(1)–(3), whereas he 12 alleges a violation of Section 64.1200(d)(4). Relatedly, he argues that Section 64.1200(d)(4) “is 13 not merely a subsidiary detail of the company-specific do-not-call regime; it is an alternative, 14 standalone protection Congress envisioned.” ECF No. 50 at 5. Luckau is correct that the cases 15 cited by the Court did not consider standing under Section 64.1200(d)(4), though one court did 16 consider an overarching claim, encompassing all of Section 64.1200(d). See Thompson v. Vintage 17 Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052, at *7 (E.D. Mo. Feb. 8, 2024), 18 reconsideration granted on other grounds, 2024 WL 1636705 (E.D. Mo. Apr. 16, 2024) (finding 19 no standing for claims that the defendant failed to “(1) institute procedures for maintaining a list of 20 persons who request not to be called [Section 64.1200(d)]; (2) have a written policy, available 21 upon demand, for maintaining a do-not-call list [Section 64.1200(d)(1)]; and (3) train and inform 22 its personnel engaged in any aspect of telemarketing of the existence and use of the do-not-call list 23 [Section 64.1200(d)(2)]” (citation modified)); Doane v. Benefytt Techs., Inc., Civ. Action No. 22- 24 10510-FDS, 2023 WL 2465628, at *7 & n.2 (D. Mass. Mar. 10, 2023) (finding no standing for 25 claims under Sections 64.1200(d)(1) and (d)(3), and noting that the defendant did not move to 26 dismiss for lack of standing the plaintiff’s claim under Section 64.1200(d)(4)); Perrong, 2021 WL 27 1387506, at *2–3 (E.D. Pa. Apr. 13, 2021) (finding no standing for claim under Section 1 “standalone protection” for caller identification requirements, Luckau brought a claim under 2 || Section 64.1200(d)(4)—a requirement that applies only as part of an entity’s minimum procedures 3 for maintaining an internal do-not-call list. The TCPA’s structure differs from the state laws that 4 || Luckau attempts to analogize, which Luckau contends include “disclosure requirements [that] are 5 completely separate from the requirement that telemarketers maintain an internal do not call list.” 6 || ECF No. 50 at 4 (emphasis added). Here, the disclosure requirement relied on by Luckau is part 7 of the procedural requirements for maintaining an internal do-not-call list, not a standalone 8 || requirement, and the Court does not find Luckau’s injury to be fairly traceable to the alleged 9 violation of Section 64.1200(d)(4). 10 The Court instructed Luckau to discuss in his supplemental brief “what allegations, if any, 11 [he] would add to the complaint if the Court were to dismiss his second claim for lack of standing 12 || for leave to amend.” ECF No. 48 at 5. Luckau states that he would add allegations that 5 13 || Defendants’ conduct “prevented [him] from determining the purpose of the call, evaluating the 14 || content and truthfulness of the message, and deciding whether it was somebody he wished to call 3 15 back.” ECF No. 50 at 2-3. As discussed above, Luckau has not persuaded the Court that these 16 additions would sufficiently allege Article III standing given the facts of this case. The Court 3 17 therefore denies leave to amend. 18 For the above reasons, and those included in the Court’s prior order, the Court grants 19 Defendants’ motion to dismiss Luckau’s second claim for relief without leave to amend. 20 IT IS SO ORDERED. 21 Dated: September 30, 2025 .
22 JON S. TIGAR 23 nited States District Judge 24 25 26 27 28