Brown v. Nano Hearing: A Callback Number to the Seller Is Not Enough to Plead Who Made the Calls

The Allegations

The plaintiff alleged that her number had been on the National Do Not Call Registry since 2009. In January 2023 she received two calls from different numbers promoting the seller's hearing aids. In February she received a third call from a person who said he was with "Life Care." He transferred her to someone who gave a callback number with an extension that, when called, reached the seller. She alleged "on information and belief" that each number belonged to the seller or its agent.

No Direct Liability

Direct liability requires taking the steps necessary to physically place the call. The complaint did not explain the basis for the information-and-belief allegations. No caller identified himself as the seller's representative. The only identified caller named a different company, and the complaint did not allege that it was the seller or affiliated with it. The callback number was never used to place a call to the plaintiff.

No Vicarious Liability

Actual authority. The plaintiff had to plead facts showing the seller controlled or had the right to control the caller, manifested assent, and directed or authorized the calls. Boilerplate agency allegations were conclusory. The court distinguished cases where callers said they were acting for the defendant or used its scripts and systems, including Bilek v. Federal Insurance Co., 8 F.4th 581 (7th Cir. 2021). Nothing tied the first two calls to anyone.

Apparent authority. Apparent authority must rest on something the principal said or did. Statements by the supposed agents are not enough. The plaintiff relied on a West Virginia decision that its own court later rejected, explaining that a dealer using a supplier's name does not make it the supplier's agent, just as a bar advertising a beer brand is not the brewery's agent.

Ratification. Ratification still requires an agency relationship, which was not pleaded.

Standing

Because the complaint did not tie the calls to the seller, the injury was not fairly traceable to it and might have resulted from an absent third party. Redressability failed for the same reason. Three calls within a month, with nothing since, also did not show a likelihood of future calls supporting injunctive relief.

Class Allegations Struck

The class definition, everyone on the registry who received two calls from the seller in 12 months, did not exclude people who consented. The court found it overbroad because it would include members without standing. And because the plaintiff had not plausibly pleaded that the seller called her, she was not shown to be a member of her own class, defeating typicality.

Practical Points

• Compare Jewell v. Magnolia Bank, where a caller said he was calling for the bank and transferred the call to a bank employee. Identification by the caller and a live handoff make the difference.
• In this court, a class definition that ignores consent can be struck at the pleading stage, though other courts have treated consent carve-outs as a fail-safe problem.

Read the Southern District of California order.