First, a bit of background. In Meyer, the plaintiff sued a debt collector under the TCPA, alleging that it used an autodialer to call his cell phone number impermissibly. 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 giving 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.
Setting aside the TCPA issues—which will be addressed in a subsequent post—the Ninth Circuit’s decision contains several holdings that should be of interest (and concern) to class-action defendants more broadly:
1. Although the plaintiffs ultimately must seek certification under Rule 23(b)(3) because they are seeking monetary relief (Wal-Mart Stores, Inc. v. Dukes), the Ninth Circuit allowed the plaintiffs to obtain provisional class certification for purposes of a preliminary injunction under Rule 23(b)(2). Yet nothing in Rule 23 authorizes a “provisional” class certification—especially when the plaintiffs wouldn’t be eligible to seek certification under that rule at the class-certification stage. Moreover, the Ninth Circuit failed to address whether due process permits this maneuver; in our view, it doesn’t, because absent class members will be bound by whatever happens during this “preliminary” stage, but haven’t been given notice or the opportunity to opt out, as they must in the usual course of class certification under Rule 23(b)(3).
The reason that, before Dukes, plaintiffs often sought certification under Rule 23(b)(2) rather than Rule 23(b)(3) was to sidestep Rule 23(b)(3)’s demanding predominance and superiority requirements. And although a certification may be described as “provisional,” the psychological desire of judges (and human beings everywhere) to maintain consistency can give plaintiffs an enormous leg up at the actual class-certification stage. The decision in Meyer may inspire other plaintiffs to repeat this tactic in future cases.
2. To make sure that the affected individuals were California residents, the district court limited the class to consumers with “a California area-code” or who are identified in the defendant’s records as residing in California. Relying on records of a consumer’s actual residency may make sense. But the use of a cell phone area code as a proxy for residency seems dubious. Many people have cell phone numbers with area codes from outside their state of residence. And numerous online services compatible with cell phones (such as Google Voice, VOIP, etc.) generate telephone numbers unrelated to the user’s actual location. Indeed, for this very reason a federal district court recently denied certification of a TCPA class action purporting to identify members of a Washington-only class from a list of Washington phone numbers. See Hartman v. United Bank Card Inc. (W.D. Wash. Oct. 4, 2012).
3. The Ninth Circuit affirmed the district court’s rejection of an adequacy challenge to the named plaintiff, who has used multiple names and has 11- and 14-year-old convictions for offenses involving dishonesty. The Ninth Circuit emphasized the “provisional” nature of the certification, and in a footnote cited Federal Rule of Evidence 609(b), which presumptively excludes evidence about convictions that are more than 10 years old. But Rule 609(b) permits the use of such convictions when the probative value substantially outweighs the prejudicial effect. Because the question here is whether the named plaintiff can be trusted to be a fiduciary, the fact that he is a recidivist with a penchant for using aliases would seem to be highly relevant.