Ninth Circuit Takes Narrow View Of Prior Express Consent In Debt Collection Case

Author:Consumer Protection Defense And Unfair Competition Group
Profession:Loeb & Loeb LLP

In Meyer v. Portfolio Recovery Associates LLC, plaintiff Jesse Meyer (Meyer), on behalf of himself and a putative class, alleged that debt collection service Portfolio Recovery Associates (PRA) violated the federal Telephone Consumer Protection Act (TCPA) by using an automated dialer to call debtors' cell phones without obtaining prior express consent. Meyer moved for a preliminary injunction and provisional class certification. The district court granted the motion. On October 12, 2012, the Ninth Circuit affirmed. This is the first case in which the Ninth Circuit has considered the issue of class certification under the TCPA.

The class was defined as all California persons PRA contacted using a cell phone number that PRA did not obtain from either the creditor or the debtor. In provisionally certifying this class, the Ninth Circuit held that Meyer had met the requirements of Federal Rule of Civil Procedure 23(a). PRA had argued that individualized issues of consent precluded a finding of typicality or commonality because some debtors might have agreed to be contacted at any telephone number, including telephone numbers obtained after the original transactions related to the debts. The Ninth Circuit disagreed, holding that under the TCPA, "prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue." Thus, even if consumers provided their cell phone numbers to creditors after the original transactions, they "are not deemed to have consented to be contacted at those numbers for purposes of the TCPA."

PRA had also argued that the proposed class was overbroad because it might include debtors who had provided express consent to be contacted on their cell phones but whose telephone numbers had been obtained through skip-tracing, the process of gathering and verifying new consumer information. The court was not persuaded, noting that PRA had not identified a single instance in which a debtor had given a cell phone number to a creditor that PRA had also found through skip-tracing. Further, the evidence suggested that cell phone numbers found through skip-tracing were unlikely to have been provided by debtors. PRA's practice was to contact debtors using information received from creditors and to use skip-tracing only if the debtors could not be reached using existing information.


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