Saunders v. Sunrun, Inc.

Background

Curtis Saunders filed a proposed nationwide class action against Sunrun, Inc. He alleged that Sunrun sent two automated text messages to his cellular telephone after he told Sunrun during a sales-related call that he did not consent to receive text messages. He also alleged that Sunrun automatically recorded the call from its beginning without informing him that it was being recorded or obtaining his consent.

The complaint asserted two causes of action: one under the Telephone Consumer Protection Act (TCPA), a federal law regulating certain automated calls and messages, and one under section 632.7 of the California Invasion of Privacy Act (CIPA). Saunders had previously filed an action against Sunrun in Illinois and voluntarily dismissed it before Sunrun filed a planned motion challenging personal jurisdiction. Sunrun later removed that action to federal court, according to the opinion.

Motions and the TCPA claim

Sunrun moved to dismiss under Rules 12(b)(1) and 12(b)(6), which address subject-matter jurisdiction and failure to state a legally sufficient claim. Sunrun argued that the texts were not telemarketing or advertising and that Saunders’s allegations showed he had consented to receive them.

The court agreed that Saunders’s allegations showed the texts were sent in response to his inquiry about Sunrun’s solar products and therefore did not constitute advertising or telemarketing. As a result, the court concluded that express consent, rather than prior express written consent, was required for those messages. Saunders had initially given consent by providing his phone number while seeking a quote, but the court recognized that consent can be revoked by a reasonable method, including orally.

The court held that whether the texts were sent after Saunders revoked consent, or while the call was still underway, was a factual question that could not be resolved on a motion to dismiss. Reading the complaint in Saunders’s favor, the court found that he sufficiently alleged that Sunrun sent the texts after he revoked consent. The court therefore denied Sunrun’s motion to dismiss the TCPA claim.

CIPA claim

Sunrun argued that Saunders lacked Article III standing, meaning a concrete injury required for federal jurisdiction, and had not adequately alleged that Sunrun recorded a call involving him.

The court rejected both arguments. It held that Saunders sufficiently alleged an invasion of privacy under CIPA by claiming that Sunrun recorded the call without informing him at the outset or obtaining his consent. The court also held that an alleged violation of CIPA privacy rights was enough to allege an injury in fact for standing purposes. The court therefore denied Sunrun’s motion to dismiss the CIPA claim.

Sunrun also asked the court to follow a California Court of Appeal decision holding that section 632.7 prohibits recording by third-party eavesdroppers but not recording by participants in a call. Because the California Supreme Court was reviewing that decision, the court stayed the CIPA claim pending the state Supreme Court’s ruling. The stay concerned the CIPA claim; the court did not dismiss it.

Costs and requested stay

Sunrun sought costs from Saunders’s earlier action, including filing fees and attorney’s fees, and asked the court to stay this case until payment. The court awarded Sunrun the $700 in filing fees but did not award attorney’s fees. It explained that the TCPA does not provide for recovery of attorney’s fees and that the record did not indicate forum shopping or vexatious litigation.

The court denied Sunrun’s motion to stay the case pending payment of costs. Instead, it ordered Saunders to pay Sunrun the $700 by August 25, 2020.

Disposition

Judge Gilliam awarded costs, denied Defendant’s motions to dismiss the two claims, denied Defendant’s motion to stay pending payment of costs, and stayed the CIPA claim pending the California Supreme Court’s review of the related state-law decision. The court also set a further case-management conference.