In Meyer v. Receivables Performance Management, LLC, 2013 WL 1914392 (W.D.Wash. 2013), Judge Jones summarily disposed of a debt collector’s efforts to dismiss a TCPA class action at the pleadings stage.
From February 2012 to April 2012, Ms. Meyer received many calls on her cellular phone from RPM. RPM is a debt collector. When Ms. Meyer did not answer, RPM left either artificially-voiced or prerecorded messages on her voicemail. When she did answer, RPM told her that it was collecting a debt that Reuben Alvarez owed. Ms. Meyer explained that she did not know who Reuben Alvarez was, did not owe RPM or anyone else money, and demanded that RPM stop calling. RPM continued to call her. ¶ Ms. Meyer contends that RPM’s conduct is more than an annoying series of phone calls from a persistent and thickheaded debt collector, it is a violation of federal law. She contends that RPM made the calls with an “automatic telephone dialing system” (hereinafter “autodialer”) within the meaning of the Tele-phone Consumer Protection Act (“TCPA”). See 47 U.S.C. § 227(a)(1). The TCPA makes it unlawful to use an autodialer to call any cellular phone, except for emergency purposes or in cases where the person receiving the call gave “prior express consent.” 47 U.S.C. § 227(b)(1)(A)(iii). ¶ Ms. Meyer does not wish to pursue only her own claims; she hopes to represent a nationwide class of people who received unsolicited cellular phone calls from RPM. In accordance with Local Rules W.D. Wash. LCR 23(i)(2), her complaint contains a section entitled “Class Allegations,” in which she explains how her allegations, if proven, would satisfy the class certification requirements of Federal Rule of Civil Procedure 23. ¶ Before Ms. Meyer began to take discovery, RPM filed its motion to dismiss. The parties have agreed not to begin discovery until the court rules on the motion.
Judge Jones found the defendant’s motion to dismiss the class action allegations at the pleading stage.
RPM falls well short of convincing the court that Ms. Meyer cannot demonstrate commonality or the predominance of common questions. It asserts that Ms. Meyer will be unable to prove that RPM autodialed putative class members without their consent unless she presents individual evidence of each class member’s consent (or lack thereof). That assertion is baffling. What if Ms. Meyer learns in discovery that RPM has never attempted to obtain the consent of any putative class member? What if Ms. Meyer learns in discovery that RPM purchases the debts it collects from third parties without making any attempt to determine if those third parties obtained the debtors’ consent to autodialed phone calls? What if Ms. Meyer learns in discovery that RPM’s corporate policy is to ignore people (like Ms. Meyer) who explicitly inform them that she does not consent to their phone calls? What if Ms. Meyer learns in discovery that RPM collects on the sort of over-the-counter consumer debts in which it is exceedingly unlikely that the consumer was asked for consent to later phone calls? The court could go on, but there is no need. It is entirely plausible that Ms. Meyer will uncover evidence that will permit her, on a classwide basis, to prove that no one (or virtually no one) consented to RPM’s cellular phone calls. It is entirely plausible that Ms. Meyer, after discovery, will be able to demonstrate not only common questions, but common questions that predominate over individualized inquiries. Perhaps RPM is correct that consent or other issues will ultimately require an individualized inquiry, but there is no way to make that determination now. RPM’s motion illustrates why courts typically decide class certification after discovery, not on the pleadings.