November 29, 2022

Volume XII, Number 333

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November 28, 2022

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EWING DID NOT GET HIS PRELIMINARY INJUCTION: Acknowledgement Of Wrongdoing and Preventive Measures Taken By Defendant Key

As you recall, last week I posted about Anton Ewing winning $11,000 by merely filing. Well, Anton is a busy man. However, this time the wheels of justice did not turn in his favor. Ewing lost a preliminary injunction against defendant Izhak Halbani.

In June 2022, Ewing filed against Halbani for alleged violations of the TCPA, California’s Consumer Information Privacy Act (CIPA), and California’s Legal Remedies Act (CLRA). Then, Halbani allegedly called him again a little over a month after the suit was filed.

That phone call is why the preliminary injunction was filed in ANTON EWING, Plaintiff, v. IZHAK HALBANI; ALL CREDIT FUNDING, LLC, Defendants., No. 22-CV-00919-BAS-WVG, 2022 WL 4490166 (S.D. Cal. Sept. 27, 2022).

To get a preliminary injunction granted, a plaintiff bears the burden of establishing a clear showing:

1. that there will likely be irreparable harm absent preliminary relief;

2. that the balance of equities tips in its favor;

3. that an injunction is in the public interest.

This is what is known as the Winter Test factors. If it fails the irreparable harm prong, that is game over and the other factors are not even considered. This is exactly what happened here.

The Court keeps it short and sweet stating that, even if Ewing could show irreparable harm, he did not demonstrate “immediate threatened injury absent a preliminary injunction.”

Halbani in response to the motion claimed the one phone call that slipped through was merely a regrettable oversite to which he alleged has cured with employee retraining and scrubbing internal call lists. The acknowledgement of wrongful conduct and preventative measures taken to ensure it would not happen again are what distinguished this case from the precedent relied on by Ewing in the eyes of the Court.

In Ewing’s reply to Halbani’s response to this motion, he claimed continued solicitation but could only point to an alleged LinkedIn message predating this lawsuit.

Thus, the Court held that Ewing failed to persuade it that by not granting the injunction there would be an “immediate threatened injury.”

© 2022 Troutman FirmNational Law Review, Volume XII, Number 278
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About this Author

Tori Guidry Class Action Attorney Troutman Firm
Prosecutor

Tori Guidry is the Dame at Troutman Firm and of TCPAWorld. Tori is a former criminal defense attorney and assistant district attorney. Tori attended Louisiana State University, where she earned a Bachelor of Science degree in Economics. Tori went on to earn her Juris Doctorate at Louisiana State University's Paul Hebert Law Center. Tori's practice at Troutman Firm is focused on class action defense litigation related to the Telephone Consumer Protection (TCPA) and compliance.

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