Meyer v. Portfolio Recovery Associates: Ninth Circuit Affirms Class Certification Order and Preliminary Injunction in Telephone Consumer Protection Act (TCPA) Action

A quick note on an interesting non-employment class action.

In Meyer v. Portfolio Recovery Associates, LLC (9th Cir. 10/12/12) the plaintiffs sued a debt collection agency, PRA, for violation of the Telephone Consumer Protection Act (TCPA). 47 U.S.C. § 227. The district court issued a preliminary injunction to prevent PRA from using an automated dialing system to place calls to cellular telephone numbers with California area codes that PRA obtained via skip-tracing. The court also certified a class of individuals whom PRA so contacted.

The Ninth Circuit affirmed, holding:

1. The court had jurisdiction to enter its order, despite: (a) the plaintiff having filed a premature notice of appeal from the court's minute order denying the motion; and (b) the court having signed, but not entered, an order transferring the matter to another district court judge.  Slip op. at 12256-12257. 
2. The court did not abuse its discretion in provisionally certifying the class under Rule 23(b)(2), despite PRA's arguments that: (a) individualized issues of consent should have precluded a finding of typicality or commonality; (b) the class definition was overbroad because it may include debtors who provided express consent to be contacted on their cellular telephones; and (c) that the plaintiff was not an adequate class representative due to convictions for offenses involving dishonesty (the convictions were more than ten years old).  Slip op. at 12257-12260. 
3. The court did not abuse its discretion in granting the preliminary injunction because the plaintiff showed: (a) a likelihood of success on the merits; (b) that he was likely to suffer irreparable harm in the absence of preliminary relief; (c) that the balance of equities tipped in his favor; and (d) that an injunction was in the public interest.  Slip op. at 12260-12264.   

The Court raised but did not decide the interesting issue of whether the plaintiff could obtain the injunction without showing irreparable harm because the TCPA specifically provides for injunctive relief.  Slip op. at 12262-12263.  

The opinion is available here.