How embarrassing is this– a court recently sent a #biglaw firm back to the drawing board in a TCPA case because it missed a winning argument it should have made.
No wonder people say: “Hire big law, expect a big loss.”
Just terrible.
Take the case of Luckau v. Sunrun, 2025 WL 1797249 (N.D. Cal. June 30, 2025).
There Sunrun was sued in a TCPA class action alleging the company made calls–directly or indirectly–without disclosing the name of the calling party in violation of the TCPA’s DNC CFR provisions.
Sunrun’s #biglaw counsel decided it would be clever to argue Plaintiff lacks standing to sue because his wife consented to the calls.
This is an obvious miss because consent is a merits defense, and not a standing issue. So–waste of money. The Court properly and quickly rejected the defendant’s motion.
But then it did something extraordinary.
Seemingly feeling bad for the Defendant it continued its analysis of standing on a ground the defendant did not actually raise:
Neither party considers that the requirement to identify “the name of the person or entity on whose behalf the call is being made,” 47 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, “No person or entity shall initiate … any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive such calls made by or on behalf of that person or entity.” 47 C.F.R. § 64.1200(d). The identification requirement is one of the “minimum standards” that the instituted procedures must satisfy. Id. Luckau does not allege that he ever requested to be placed on Defendants’ internal do-not-call list. He therefore appears to lack standing to assert a claim for violation of Section 64.1200(d)(4) because “even if Defendants had complied with the TCPA and maintained an internal do not-call list [that complied with all of the regulatory requirements], their compliance would not have prevented a call to [Luckau] because he would not have been on that list.”
Get it?
The defense lawyers missed a key argument and the court brought it up for them.
Just wild.
The Court goes on to give both sides the opportunity to brief the issue the defense should have raised to begin with:
For these reasons, the Court is inclined to conclude that Luckau lacks Article III standing to pursue his second claim, for violation of 47 C.F.R. § 64.1200(d). Because the parties’ briefing did not analyze traceability in the above manner and did not address some of the authority cited above, the Court will provide them with an opportunity to respond.