iAs 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.”
