Ninth Circuit Approves Provisional Class Action Certification in TCPA Class Action, Defines “Prior Express Consent”

Written by Joshua Briones and Ana Tagvoryan

The Ninth Circuit has issued a pro-plaintiff ruling, in Meyer v. Portfolio Recovery Assocs., LLC, which upholds a preliminary injunction against a defendant and defines the meaning of “prior express consent” in the context of a Telephone Consumer Protection Act class action collection case.

The TCPA’s restrictions on telephone solicitations:  The TCPA restricts calls using “automatic telephone dialing systems” or artificial or prerecorded voice messages. Absent “prior express consent” or an emergency–and prior expresswrittenconsent–for telemarketing calls to cell phones, no one may make such calls to a mobile telephone number.  The TCPA also restricts prerecorded (or artificial voice) telephone solicitations to a residential number.

TCPA class actions are becoming increasingly common, in large part because the statute provides for damages of at least US$500 per violation.  Last month in Meyer, the Ninth Circuit clarified the meaning of “prior express consent” in TCPA class actions involving debt collection.

Meyer v. Portfolio Recovery Assocs., LLC:  Meyer is the first case in which the Ninth Circuit has considered the issue of provisional class certification under the TCPA. In Meyer, the plaintiff sued a debt collector under the TCPA, alleging that it used an autodialer to call his cell phone number without his permission. The plaintiff sought statutory damages and injunctive relief on behalf of a putative class of all California residents whom the defendant had called at cell phone numbers that had not been provided as part of the transaction that gave rise to the debt in question. The district court certified the class under Federal Rule of Civil Procedure 23(b)(2) for the limited purpose of entering a preliminary injunction against the challenged conduct. The Ninth Circuit affirmed.

The plaintiff defined the class as all California persons contacted by Portfolio Recovery Associates using a cell phone number that Portfolio Recovery Associates did not obtain from either the creditor or the debtor. In provisionally certifying this class, the Ninth Circuit held that the plaintiff met the requirements of Federal Rule of Civil Procedure 23(a). Portfolio Recovery Associates 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.”

The Ninth Circuit used language from a declaratory ruling issued by the FCC in 2008 as justification for determining whether a consumer has given express prior consent to reach them on a cell number under the TCPA. The language states that consent is considered given only when a consumer provides the cell number at the time of transaction:

Pursuant to the FCC ruling, 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, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.

The Ninth Circuit’s interpretation of “prior express consent” under the TCPA suggests that creditors and debt collectors cannot use cell phone numbers they receive from sources other than the debtors.

Before making contact: Meyer seems to make clear that creditors and debt collectors must verify that debtors provided their cell phone numbers and that the numbers were provided at the time of the transactions related to the debts before contact is made using an automated or predictive dialer.

For cell phone numbers provided laterby debtors, it is imperative that creditors and debt collectors make clear to the owners of those numbers that they may be contacted at these numbers for purposes of debt collection.  Creditors and debt collectors should also consider obtaining this subsequent express consent in writing.

For more information about the impact of this decision on your business, please contact Joshua BrionesAna Tagvoryan and Perrie Weiner.