Class Action in Florida under the Telephone Consumer Protection Act, Portfolio Recovery Associates

April 14, 2011

Class ActionFOR IMMEDIATE RELEASE: April 14th, 2011

TURNER LAW OFFICES, LLC AND ARCADIER & ASSOCIATES, P.A. ANNOUNCE FILING OF A CLASS ACTION LAWSUIT AGAINST PORTFOLIO RECOVERY ASSOCIATES, LLC FOR VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT

ATLANTA, GEORGIA and WEST MELBOURNE, FLORIDA–The law firms of Turner Law Offices, LLC and Arcadier & Associates, P.A. have filed a Class Action lawsuit against Defendant Portfolio Recovery Associates, LLC (“PRA”) in the United States District Court for the Middle District of Florida on behalf of all persons in the State of Florida who, since February 18, 2011, received a non-emergency telephone call from PRA to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls during the transaction that resulted in the debt owed. The action is captioned Karen Harvey et al. v. Portfolio Recovery Associates, LLC, and is numbered 6:11-CV-00582. 

According to the Complaint, PRA violated the Telephone Consumer Protection Act (“TCPA”) by using automatic dialing systems and/or an artificial or prerecorded voice to contact cell phone users about purported debts without their prior consent. As described in the Complaint, Ms. Harvey, the named plaintiff in the action, was repeatedly contacted since February 18, 2011 on her cell phone about a purported credit card debt. The plaintiff never consented to those calls, nor did she provide PRA with her telephone number.

Under the TCPA, PRA could be ordered to pay attorneys’ fees, litigation expenses and costs of the lawsuit, and statutory damages of $500 for each negligent violation, and/or $1,500 for each knowing and/or willing violation. According to the Complaint, the potential Class Members are estimated to number in the tens of thousands.
For further information please contact:

Henry A. Turner
TURNER LAW OFFICES, LLC
403 W. Ponce de Leon Avenue
Decatur, Georgia 30030
(404) 261-7787
hturner@tloffices.com
www.tloffices.com

or

Maurice Arcadier
ARCADIER & ASSOCIATES, P.A.
2815 West New Haven
Suites 303 & 304
West Melbourne, Florida 32904
Telephone: (321) 953-5998
Facsimile: (321) 953-6075
arcadier@melbournelegalteam. 

Complaint:

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

KAREN HARVEY on behalf of herself
and all others similarly situated,

Plaintiff,
v. Case No.

PORTFOLIO RECOVERY ASSOCIATES, LLC,

Defendant.
_____________________________________/

CLASS ACTION

COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
PURSUANT TO 47 U.S.C. § 227 ET. SEQ. (TELEPHONE CONSUMER PROTECTION ACT) AND DEMAND FOR JURY TRIAL

Plaintiff Karen Harvey (hereinafter referred to as “Plaintiff”), individually and on behalf of all others similarly situated, alleges on personal knowledge, investigation of her counsel, and on information and belief as follows:
NATURE OF ACTION

1. Plaintiff brings this action for damages, and other legal and equitable
remedies, resulting from the illegal actions of Portfolio Recovery Associates, LLC (hereinafter referred to as “PRA LLC” or the “Defendant”) in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff’s cellular telephone without her prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (hereinafter referred to as the “TCPA”).
2. PRA LLC is a Delaware corporation that maintains its headquarters at
120 Corporate Boulevard, Norfolk, Virginia 23502. PRA LLC is a wholly-owned subsidiary of Portfolio Recovery Associates, Inc. (hereinafter “PRA Inc.”). PRA Inc.’s stock shares are publicly traded on the NASDAQ stock exchange and PRA Inc. is required to make filings with the United States Securities and Exchange Commission (hereinafter the “SEC”). According to its SEC filings, the primary business of PRA Inc., both directly and through its subsidiaries (such as Defendant), is “[t]he purchase, collection and management of portfolios of defaulted consumer receivables. These accounts are purchased from sellers of finance receivables and collected by a highly skilled staff whose purpose is to locate and contact customers and arrange payment or resolution of their debts.” [PRA Inc.’s SEC Form 10K as of December 31, 2010].
As of December 31, 2010, PRA Inc.’s consolidated Financial Statements showed ownership of 1,913,000 such accounts, wherein the underlying purported debt belongs to residents of the State of Florida. Id.
Defendant PRA LLC solely owns all 1,913,000 such accounts and also acts as the Debt Collector for such accounts.
JURISDICTION AND VENUE
3. This matter in controversy exceeds $5,000,000, as each member of the
proposed Class of tens of thousands is entitled to up to $1,500.00 in statutory
damages for each call that has violated the TCPA. Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2). See also Miedema v. Maytag Corp., 450 F.3d 1322, 1327 (11th Cir. 2006). Further, there is minimal diversity in that at least one plaintiff and one defendant are from different states. Id. Therefore, both elements of diversity jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”) are present, and this Court has jurisdiction.
4. Venue is proper in the United States District Court for the Middle District of Florida, Orlando Division pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1441(a), because Defendant is a corporation that is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced, and because Defendant’s contacts with this District are sufficient to subject it to personal jurisdiction. Venue is also proper in this District because Plaintiff Harvey has resided in this District at all times relevant to these claims such that a substantial part of the events giving rise to the claims occurred in this District.
PARTIES
5. Plaintiff Karen Harvey is, and at all times mentioned herein was, an individual citizen of the State of Florida who resides in Palm Bay, Florida.
6. On information and belief, Plaintiff alleges that PRA LLC is, and at all times mentioned herein was, a corporation whose primary corporate address and headquarters are in Norfolk, Virginia, and that PRA LLC does business throughout the country, including this District.
THE TELEPHONE CONSUMER PROTECTION ACT OF 1991
(TCPA), 47 U.S.C. § 227

7. In 1991, Congress enacted the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA),1 in response to a growing number of consumer complaints 

1 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227 (TCPA). The TCPA amended Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq.
regarding certain telemarketing practices.
8. The TCPA regulates, among other things, the use of automated telephone equipment, or “autodialers.” Specifically, the plain language of Section 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party.2
9. According to findings by the Federal Communication Commission
(“FCC”), the agency Congress vested with authority to issue regulations implementing the TCPA, such calls are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used.3
10. On January 4, 2008, the FCC released a Declaratory Ruling wherein it
confirmed that autodialed and prerecorded message calls to a wireless number by a
creditor (or on behalf of a creditor) are permitted only if the calls are made with the
“prior express consent” of the called party.4 The FCC “emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the

2 47 U.S.C. § 227(b)(1)(A)(iii).

3 Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003).

4 In the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 (“FCC Declaratory Ruling”), 23 F.C.C.R. 559, 23 FCC Rcd. 559, 43 Communications Reg. (P&F) 877, 2008 WL 65485 (F.C.C.) (2008).
consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.”5
11. Under the TCPA and pursuant to the FCC’s January 2008 Declaratory Ruling, the burden is on Defendant to demonstrate that Plaintiff provided prior 
express consent within the meaning of the TCPA. 6 
12. Auto Dialing systems, also known as Predictive Dialing Technology, are commonly used in the Debt Collection industry. See e.g. The Challenges of Change, Federal Trade Commission (2009).
FACTUAL ALLEGATIONS
13. At all times relevant, Plaintiff was an individual residing in the State
of Florida. Plaintiff is, and at all times mentioned herein was, a “person” as
defined by 47 U.S.C. § 153(10).
14. Defendant is, and at all times mentioned herein was, a corporation and a “person”, as defined by 47 U.S.C. § 153(10).
15. On February 18, 2011, Defendant commenced the placement of
telephone calls using a pre-recorded or artificial message to Plaintiff’s cellular telephone. The purpose of these calls was to collect a purported credit card debt (hereinafter the “Purported Debt”).

5 FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10).
Ruling, 23 F.C.C.R. at 565(¶ 10).

6 Id.

16. Plaintiff did not list a cellular phone number in or on any documents at any time during the transaction that resulted in the Purported Debt. Plaintiff also did not verbally provide Defendant, or any other party, with a cellular phone number at any time during the transaction that resulted in the Purported Debt, or thereafter.
17. Defendant routinely utilizes Predictive Dialing Technology in its Debt
Collection efforts. In its 2010 Form 10K filing with the SEC, PRA Inc. (which owns and controls Defendant) unambiguously attested (pursuant to 18 U.S.C. § 1350, as adopted under § 906 of the Sarbanes-Oxley Act of 2002):
***
Predictive Dialer Technology 

The Avaya Proactive Contact Dialer ensures that our collection staff focuses on certain defaulted consumer receivables according to our specifications. Its predictive technology takes into account all campaign and dialing parameters and is able to automatically adjust its dialing pace to match changes in campaign conditions and provide the lowest possible wait times and abandon rates, with the highest volume of outbound calls. Id. at Page 14.

Further, in the same SEC filing, PRA Inc. attests that it is aware of the TCPA and Predictive Dialing Technology, by stating:
***
Telephone Consumer Protection Act. In the process of collecting accounts, we use automated predictive dialers and pre-recorded messages to communicate with our consumers. This act and similar state laws place certain restrictions on telemarketers and users of automated dialing equipment and pre-recorded messages who place telephone calls to consumers. Id. at Page 16.

***
18. All telephone contact by Defendant to Plaintiff on her cellular telephone occurred via an “automatic telephone dialing system,” as defined by 47 U.S.C. § 227(a)(1), and all calls that are the subject of this Complaint occurred within four years of the filing of this Complaint.
19. Each of Defendant’s calls to Plaintiff’s cellular telephone left a prerecorded message, as defined by 47 U.S.C. § 227(a)(1), and all calls that are the subject of this Complaint occurred within four years of the filing of this Complaint.
20. The telephone number that Defendant used to contact Plaintiff, made via an “automatic telephone dialing system,” was assigned to a cellular telephone service as specified in 47 U.S.C. § 227(b)(1)(A)(iii).
21. The complained of Defendant telephone calls constituted calls not made for emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A)(i).
22. “During the transaction that resulted in the debt owed,” Plaintiff did
not provide a wireless number nor otherwise provide express consent to receive 
calls by Defendant, or any other party, on Plaintiff’s cellular telephone.7
23. Plaintiff did not own her current cellular telephone at the time she engaged in the transaction that resulted in the Purported Debt. She therefore could 
not have given Defendant, or any other party, express consent at that time to 
contact her on that cellular phone via an automatic telephone dialing system.
24. Plaintiff did not provide “express consent” allowing Defendant to place telephone calls to Plaintiff’s cellular phone utilizing an “automatic telephone
dialing system,” within the meaning of 47 U.S.C. § 227(b)(1)(A).

7 See FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10).

25. Plaintiff did not provide “express consent” allowing Defendant to leave prerecorded messages on Plaintiff’s cellular phone, within the meaning of 47 U.S.C. § 227(b)(1)(A).
26. Defendant did not make telephone calls to Plaintiff’s cellular phone “for emergency purposes” utilizing an “automatic telephone dialing system,” as described
in 47 U.S.C. § 227(b)(1)(A).
27. Defendant’s telephone calls to Plaintiff’s cellular phone utilizing an
“automatic telephone dialing system” for nonemergency purposes and in the absence of Plaintiff’s prior express consent violated 47 U.S.C. § 227(b)(1)(A).
28. Under the TCPA and pursuant to the FCC’s January 2008 Declaratory
Ruling, the burden is on Defendant to demonstrate that Plaintiff provided express consent within the meaning of the statute.8
CLASS ACTION ALLEGATIONS
29. Plaintiff brings this action on behalf of herself and on behalf of all
other persons similarly situated (hereinafter referred to as “the Class”). 
30. Plaintiff proposes the following Class definition, subject to 
amendment as appropriate:
All persons within the State of Florida who, on or after February 18, 2011 until the final disposition of this case (the “Class Period”), received a non-emergency telephone call from PRA LLC to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls during the transaction that resulted in the debt owed.

8 See FCC Declaratory Ruling, 23 F.C.C.R. at 565 (¶ 10).
Collectively, all these persons will be referred to as “Class Members.” Plaintiff represents, and is a member of, the Class. Excluded from the Class are Defendant, 
PRA Inc. and any entities in which Defendant or PRA Inc. has a controlling interest, Defendant’s and PRA Inc.’s respective agents and employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death and/or emotional distress.
31. Plaintiff does not know at this time the exact number of members in the Class, but based upon the official filing of PRA Inc. with the SEC, Plaintiff reasonably believes that Class members number at minimum in the tens of thousands. This Class size includes persons whose purported debt is owned or serviced by Defendant and all other persons whom Defendant or its affiliates dialed.
32. Plaintiff and all members of the Class have been harmed by the acts of
Defendant.
33. This Class Action Complaint seeks money damages and injunctive relief.
34. The joinder of all Class members is impracticable due to the size and
relatively modest value of each individual claim. The disposition of the claims in a class action will provide substantial benefit to the parties and the Court in avoiding a multiplicity of identical suits. The Class can be identified easily through records
maintained by Defendant.
35. There are well-defined, nearly identical, questions of law and fact affecting all parties. The questions of law and fact involving the class claims predominate over questions which may affect individual Class members. Those common questions of law and fact include, but are not limited to, the following:
a. Whether, beginning on February 18, 2011, Defendant
made non-emergency calls to Plaintiff’s and Class Members’ cellular
telephones using an automatic telephone dialing system or an
artificial or prerecorded voice;
b. Whether Defendant can meet its burden of showing
prior express consent (i.e., consent that is clearly and unmistakably 
stated) was obtained, during the transaction that resulted in the
purported debt owed or thereafter, to make such calls;

c. Whether Defendant’s conduct was knowing and/or willful;

d. Whether Defendant is liable for damages, and the amount of 
such damages; and

e. Whether Defendant should be enjoined from engaging in such conduct in the future.

36. As a person who received numerous and repeated telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice, without her prior express consent within the meaning of the TCPA, Plaintiff asserts claims that are typical of each Class member. Plaintiff will fairly and adequately represent and protect the interests of the Class, and has no interests which are antagonistic to any member of the Class.
37. Plaintiff has retained counsel experienced in handling class action claims involving violations of federal and state consumer protection statutes such as the TCPA.
38. A class action is the superior method for the fair and efficient adjudication of this controversy. Class wide relief is essential to compel Defendant to comply with the TCPA. The interest of Class members in individually controlling the prosecution of separate claims against Defendant is small because the statutory damages in an individual action for violation of the TCPA are small. Management of these claims is likely to present significantly fewer difficulties than are presented in many class claims because the calls at issue are all auto-dialed and the Class members, by definition, did not provide the prior express consent required under the statute to authorize calls to their cellular telephones.
39. Defendant has acted on grounds generally applicable to the Class, thereby making final injunctive relief and corresponding declaratory relief with respect to the Class as a whole appropriate. Moreover, on information and belief, Plaintiff alleges that the TCPA violations complained of herein are substantially likely to continue in the future if an injunction is not entered.
CAUSES OF ACTION

FIRST COUNT

NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT
47 U.S.C. § 227 ET SEQ.
40. Plaintiff incorporates by reference the foregoing paragraphs of this
Second Amended Complaint as if fully set forth herein.
41. The foregoing acts and omissions of Defendant constitute numerous and multiple negligent violations of the TCPA including, but not limited to, each of the above cited provisions of 47 U.S.C. § 227 et seq.
42. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq., Plaintiff and the Class members are entitled to an award of $500.00 in statutory damages for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B).
43. Plaintiff and Class members are also entitled to, and do seek,
injunctive relief prohibiting Defendant’s violation of the TCPA in the future.
44. Plaintiff and Class members are also entitled to an award of attorneys’ fees and costs.
SECOND COUNT

KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE
CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ.
45. Plaintiff incorporates by reference the foregoing paragraphs of this
Second Amended Complaint as if fully stated herein.
46. The foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA including, but not limited to, each of the above-cited provisions of 47 U.S.C. § 227 et seq.
47. As a result of Defendant’s knowing and/or willful violations of 47 U.S.C. § 227 et seq., Plaintiff and each member of the Class is entitled to treble damages of up to $1,500.00 for each and every call in violation of the statute, pursuant to 47 U.S.C. § 227(b)(3).
48. Plaintiff and all Class members are also entitled to, and do seek, injunctive relief prohibiting such conduct violating the TCPA by Defendant in the future.
49. Plaintiff and Class members are also entitled to an award of attorneys’ fees and costs.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff 
and all Class members the following relief against Defendant:
A. As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member $500.00 in statutory damages for each and every call that violated the TCPA;
B. As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member treble damages, as provided by statute, of up to $1,500.00 for each and every call that violated the TCPA;
C. Injunctive relief prohibiting such violations of the TCPA by Defendant in the future;
D. An award of attorneys’ fees and costs to counsel for Plaintiff and the Class;
E. An order certifying this action to be a proper class action pursuant to Federal Rule of Civil Procedure 23, establishing an appropriate Class and any Subclasses the Court deems appropriate, finding that Plaintiff is a proper representative of the Class, and appointing the lawyers and law firms representing Plaintiff as counsel for the Class; and
F. Such other relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury on all counts so triable.

This the day of April, 2011.

Respectfully submitted,

ARCADIER & ASSOCIATES, P.A.

Maurice Arcadier
Florida Bar No. 131180
2815 West New Haven 
Suites 303 & 304
West Melbourne, Florida 32904
Telephone: (321) 953-5998
Facsimile: (321) 953-6075
arcadier@melbournelegalteam.com

Motion for class certification

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION

KAREN HARVEY, on behalf of herself, 
and all others similarly situated,

Plaintiffs, CASE NO. 6:11-cv-582

vs.

PORTFOLIO RECOVERY ASSOCIATES,
LLC,

Defendant.
________________________________/

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF 
MOTION FOR CLASS CERTIFICATION

Plaintiff Karen Harvey (“Plaintiff” or “Harvey”), individually and on behalf of all others similarly situated, respectfully moves this Court to certify the class herein defined, and submits this memorandum in support of class certification, pursuant to Fed. R. Civ. P. 23 (a), (b)(3), and (g). Plaintiff hereby requests this Court to certify this putative class action and designate Plaintiff as class representative, and designate Maurice Arcadier and Arcadier & Associates, P.A. and Henry A. Turner (Pro Hac Vice Application pending) and the Turner Law Offices, LLC, as class counsel.

I. PRELIMINARY STATEMENT
This Motion for Class Certification (hereinafter the “Plaintiff’s Motion”) is filed primarily because the early filing of this Plaintiff’s Motion avoids the threat of mootness forced upon Plaintiffs (including the Putative Class) in the form of a full offer of judgment conveyed to named Plaintiff before class certification is moved. See, e.g., Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980) (lamenting the fact that named plaintiffs’ claims “effectively could be ‘picked off’ by defendant’s tender of offer of judgment”); Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 613 (8th Cir. 2003) (bestowing the same “picking off” label upon the practice of settling with the named plaintiff to moot the class action). The practice has been labeled by many courts, including the United States Supreme Court, as “picking off” named plaintiffs. Rule 68 of the Federal Rules of Civil Procedure creates a mechanism whereby Defendant can convey offers of judgment to plaintiffs, giving the plaintiffs the choice between accepting the offer within ten days of its conveyance, or rejecting the offer and agreeing to pay defendant’s attorney’s fees and costs should the result at trial be less than the offer of judgment. However, some class action Defendants have begun to use Rule 68 to thwart class action litigation. A number of federal courts have permitted Defendant to file such offers of judgment and have dismissed the entire class action as moot shortly afterward. 
Several courts of appeal have agreed that the separate and distinct interests of the putative class are implicated not only upon proper certification of the class, but upon filing of class certification papers with the court. See, e.g., Phillips v. Allegheny County, 869 F.2d 234, 237 (3rd Cir. 1989) (“[A]n action filed as a class action should be treated as if certification has been granted for purposes of settlement until certification is denied.); Sussman v. Lincoln Am. Corp., 587 F.2d 866, 869 (7th Cir. 1978) (“We consider the motion for certification, while pending, as sufficiently, though provisionally, bringing the interests of the class members before the court [to] avoid a mootness artificially created by the defendant”), cert. denied, 45 U.S. 942 (1980); Roper v. Consurve, Inc., 578 F.2d 1106, 1110 (5th Cir. 1978) (“By the very act of filing a class action, the class representatives assume responsibilities to members of the class.”) aff’d sub nom, Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980). 
While the Plaintiff in this action believes that using a Rule 68 offer of judgment to defeat the purposes of Rule 23 is innately inconsistent with the proper functioning of the entire set of rules, Plaintiff nevertheless, feels compelled to file this motion in advance of any possible Rule 68 offer of judgment. Plaintiff respectfully requests that the Court set any Hearing on the Motion for Class Certification at an appropriate time after reasonable discovery and depositions have been completed.
Finally, Local Rule 4.04(b) mandates ” Within ninety (90) days following the filing of the initial complaint in such an action, unless the time is extended by the Court for cause shown, the named plaintiff or plaintiffs shall move for a determination under Rule 23(c)(1) as to whether the case is to be maintained as a class action.”

II. BACKGROUND AND NATURE OF THE CASE
Plaintiff Harvey, individually and as a representative of the putative class, brings this action against the Defendant, alleging that Defendant has negligently, knowingly, and/or willfully contacted Plaintiff and the putative Class Members on their cellular telephones without prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (hereinafter the “TCPA”) and the Regulations promulgated thereunder. Defendant is a wholly-owned subsidiary of PRA Inc. PRA Inc.’s stock shares are publicly traded on the NASDAQ stock exchange. PRA Inc. is therefore required to make filings with the United States Securities and Exchange Commission (hereinafter the “SEC”). According to its SEC filings, the primary business of PRA Inc., both directly and through its subsidiaries (such as Defendant), is “[t]he purchase, collection and management of portfolios of defaulted consumer receivables. These accounts are purchased from sellers of finance receivables and collected by a highly skilled staff whose purpose is to locate and contact customers and arrange payment or resolution of their debts.” [PRA Inc. SEC Form 10K as of December 31, 2010].
Plaintiff seeks to represent a class of persons within Florida (including corporations, partnerships, associations, or other business entities) to which such calls were made by Defendant on or after February 18, 2011, until the final disposition of this case (the “Class Period”). More specifically, the proposed class consists of the following:
All persons within the State of Florida who, on or after February 18, 2011 until the final disposition of this case (the “Class Period”), received a non-emergency telephone call from PRA LLC to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice and who did not provide prior express consent for such calls during the transaction that resulted in the debt owed.

Collectively, all these persons will be referred to as “Class Members.” Plaintiff represents, and is a member of, the Class. Excluded from the Class are Defendant, PRA Inc. and any entities in which Defendant or PRA Inc. has a controlling interest, Defendant’s and PRA Inc.’s respective agents and employees, the Judge to whom this action is assigned and any member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death and/or emotional distress.

III. STATEMENT OF FACTS
A. Defendant Made Calls To Class Members’
Cellular Telephones In Violation Of The TCPA

Pre-litigation investigation has revealed that Defendant called Plaintiff and the putative Class Members’ cellular telephones during the Class Period utilizing an automatic telephone dialing system or an artificial or prerecorded voice. Further, Defendant did not have the Class Members’ prior express consent for such calls, as specifically required by the TCPA.1 Each call by Defendant resulted in a violation of the 47 U.S.C. § 227(b)(1)(A) and is subject to mandatory statutory damages under the TCPA. Congress has charged the Federal Communications Commission (hereinafter the “FCC”) with rule-making authority under the TCPA. § 227(b)(2).
The TCPA regulates inter-alia the use of automated telephone equipment, or “autodialers.” Specifically, the plain language of Section 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party.2

1 In the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 (“FCC Declaratory Ruling”), 23 F.C.C.R. 559, 23 FCC Rcd. 559, 43 Communications Reg. (P&F) 877, 2008 WL 65485 (F.C.C.) (2008) at 564-65 (¶ 10).

2 47 U.S.C. § 227(b)(1)(A)(iii).
On January 4, 2008, the FCC released a Declaratory Ruling wherein it
confirmed that autodialed and prerecorded message calls to a wireless number by a 
creditor (or on behalf of a creditor) are permitted only if the calls are made with the 
“prior express consent” of the called party.3 The FCC “emphasize[d] that prior 
express consent is deemed to be granted only if the wireless number was provided
by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.”4
B. Defendant Admits It Utilizes Automatic Dialing Technology
In Its Debt Collection Activities

In its 2010 Form 10K filing with the SEC, PRA Inc. unambiguously attested
(pursuant to 18 U.S.C. § 1350, as adopted under § 906 of the Sarbanes-Oxley Act of 2002):
***
Predictive Dialer Technology 

The Avaya Proactive Contact Dialer ensures that our collection staff focuses on certain defaulted consumer receivables according to our specifications. Its predictive technology takes into account all campaign and dialing parameters and is able to 
automatically adjust its dialing pace to match changes in campaign conditions and

3 In the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 (“FCC Declaratory Ruling”), 23 F.C.C.R. 559, 23 FCC Rcd. 559, 43 Communications Reg. (P&F) 877, 2008 WL 65485 (F.C.C.) (2008).

4 FCC Declaratory Ruling, 23 F.C.C.R. at 564-65 (¶ 10).

provide the lowest possible wait times and abandon rates, with the highest volume of
outbound calls. [PRA Inc. SEC Form 10K as of December 31, 2010 at Page 14].

***

The FCC has issued rulings expanding the definition of “automatic telephone dialing system” to include “predictive dialers”, which the FCC defined as “having the 
capacity to dial numbers without human intervention” and as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls …. ” FCC, IN THE MATTER OF RULES AND REGULATIONS IMPLEMENTING THE TELEPHONE CONSUMER PROTECTION ACT OF 1991: REQUEST OF ACA INTERNATIONAL FOR CLARIFICATION AND DECLARATORY RULING, 07-232, ¶ 12, n. 23 (2007) (“FCC RUL. 07-232”) (quoting and affirming FCC, IN THE MATTER OF RULES AND REGULATIONS IMPLEMENTING THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 03-153, ¶ 131 (2003).5
Further, in the same SEC filing PRA Inc. attests that it is aware of the TCPA and Predictive Dialing Technology, by stating:

5 Where Congress has delegated rulemaking authority to an agency, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 844 (1984).

***
Telephone Consumer Protection Act. In the process of collecting accounts, we use automated predictive dialers and pre-recorded messages to communicate with our 
consumers. This act and similar state laws place certain restrictions on 
telemarketers and users of automated dialing equipment and pre-recorded messages who place telephone calls to consumers. Id. at Page 16.

***

C. The Defendant’s Business Records And The
Burden of Proof

Pre-litigation investigation by Plaintiff indicates that all call made to 

Plaintiff and the putative Class Members were made by Defendant. Defendant maintains call center activities in the Hutchinson, Kansas; Las Vegas, Nevada; Birmingham, Alabama; Jackson, Tennessee; Houston, Texas and Fresno, California areas. [PRA Inc. SEC Form 10K as of December 31, 2010 at Page 6]. Therefore, the relevant business records concerning Defendant’s calls to Plaintiff and the putative Class Members should be readily available. 
It is well settled in TCPA law that under the TCPA and pursuant to the
FCC’s January 2008 Declaratory Ruling, the burden is on the Defendant to demonstrate that Plaintiff provided prior express consent within the meaning of the TCPA. See FCC Declaratory Ruling, 23 F.C.C.R. at 565(¶ 10). 
IV. ARGUMENT
This Court needs no tutorial in class action jurisprudence. Class actions
promote judicial economy by aggregating small claims into one lawsuit. “Class actions permit the plaintiffs to pool claims which would be uneconomical to litigate individually. [M]ost of the plaintiffs would have no realistic day in court if a class action were not available.” Phillips Petroleum v. Shutts, 472 U.S. 797, 808-809 (1985); accord Klay v. Humana, Inc., 382 F.3d 1241, 1270 (11th Cir. 2004) citing Phillips Petroleum Co. “[E]ven if sufficient incentive existed for individual claimants to pursue their claims separately, class action treatment is far superior to having the same claims litigated repeatedly, wasting valuable judicial resources. Where predominance is established, this consideration will almost always mitigate in favor of certifying a class.” Klay 382 F.3d at 1270 citing favorably Upshaw v. Ga. Catalog Sales, Inc., 206 F.R.D. 694, 701 (M.D.Ga.2002). In TCPA actions the individual recovery is generally too small to warrant prosecution of individual claims. Am. Home Servs., Inc. v. Fastsigns, 651 S.E. 2d 119, 121; Lampkin v.GGH, 146 P.3d at 856.
Class Certification
In order for a district court to certify a class action, the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b). Klay 382 F.3d at 1250.
For class certification, the plaintiff must demonstrate that Rule 23(a)’s four
prerequisites are satisfied. These are: (1) that the proposed class is so numerous
that joinder of all members is impracticable; (2) that there are questions of law or
fact common to the class; (3) that the claims of the representative party are typical
of the claims of the class; and (4) that the representative party will fairly and
adequately protect the interests of the class. Fed. R. Civ. P. 23(a). For certification
under Rule 23(b)(3), the plaintiff must also show that “questions of law or fact
common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).
1. Rule 23(a)
Numerosity.
A class must be “so numerous that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1). ” [a] plaintiff need not show the precise number of members in the class.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir.1983); accord Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). An exact number of potential class members is not necessary for certification of a class action. Where sufficient facts are in the record from which numerosity can be inferred, the court will find the requirements to be satisfied. Kornickv. Talley, 86 F.R.D. 715 (N.D. Ga. 1980).
“[a]s a general rule, one may say that less than twenty-one is inadequate [for
a finding of numerosity], more than forty is adequate, and numbers falling in between are open to judgment based on other factors,” and “that well over forty individuals fall within the class definition adopted by this Court.” Vega at 1266 citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986).
In its Sarbanes-Oxley certified filings with the SEC, PRA Inc. has stipulated that, as of December 31, 2010, there are 1,913,000 defaulted consumer receivables located in the State of Florida. [PRA Inc.’s SEC Form 10K as of December 31, 2010 at Page 9]. Further, pre-litigation shows that Defendant is both the sole owner of these defaulted consumer receivables and also the Debt Collector of them. If only 1% of these defaulted consumer receivables come within the ambit of the Class definition, that would result in over 19,000 Class Members.6
Based upon the foregoing, “Numerosity” is satisfied because individual joinder of thousands of persons would be impracticable.
Commonality.
Rule 23(a) also requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This “commonality” is satisfied by showing “a common nucleus of operative fact.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); accord C.E. Design LTD v. King Architectural Metals, Inc., 2010 WL 5146641 (N.D. Ill. Dec. 13, 2010). The requirement is met in cases where “the Defendant engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters.” Keele at 594 . A TCPA class satisfied the “commonality” requirement in another case because the defendant had “engage[d] in a standardized course of conduct vis-à-vis the class members, and plaintiffs’ alleged injury arises out of that conduct.” Hinman v. M and M Rental Center, Inc., 545 F. Supp.2d 802, 806,807 (N.D. Ill. 2008) (Bucklo, J.), app. denied (08-8012) (Jun 13, 2008).

6 Based upon the Business Records in possession of Defendant, the exact number of Class Members can be determined once Discovery commences in this case.

Here, Defendant engaged in standardized conduct involving a common
nucleus of operative facts by contacting Plaintiff and the putative Class Members on their cellular telephones without their prior express consent. The case involves common fact questions about Defendant’s conduct and common legal questions under the TCPA, such as:
a. Whether, beginning on February 18, 2011, Defendant
made non-emergency calls to Plaintiff’s and Class Members’ cellular
telephones using an automatic telephone dialing system or an
artificial or prerecorded voice;
b. Whether Defendant can meet its burden of showing prior express consent (i.e., consent that is clearly and unmistakably stated) was obtained during the transaction that resulted in the purported debt owed, or thereafter, to make such calls;

c. Whether Defendant’s conduct was knowing and/or willful;

d. Whether Defendant is liable for damages, and the amount of 
such damages; and

e. Whether Defendant should be enjoined from engaging in such conduct in the future.

Based upon the foregoing, “Commonality” is satisfied.
Typicality. 
Rule 23(a)’s third requirement is that “the claims or defenses of the 
representative parties are typical of the claims or defenses of the class.” Fed. R.
Civ. P. 23(a)(3). The requirements of typicality are satisfied where named plaintiff’s claims “[h]ave the same essential characteristics as the claims of the class at large.” In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003). “A representative plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of the other class members, and her or his claims are based upon the same legal theory. ” Id. See also Sadowski v. Med1 Online, LLC, No. 07 C 2973, 2008 WL 2224892 (N.D. Ill. May 27, 2008) (Sadowski II) (Aspen, J.) (“[T]ypicality ‘should be determined with reference to defendant’s actions, not with respect to particularized defenses it might have against certain class members.’”… “Plaintiff’s claims and the other proposed class members’ claims all arise from Defendant’s multi-month blast fax campaign. Thus, all class member claims’ arise from the same transaction or occurrence (i.e. they all received the same faxes as a result of the same advertising campaign).”).
The same is true in this case. Typicality is inherent in the class definition. Each of the Class Members was subjected to the same conduct. Each Member’s claim is based on the same legal theory as Plaintiff’s.
Based upon the foregoing, “Typicality” is satisfied.
Adequacy of Representation.
Rule 23(a)’s final requirement is that the class representative must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This “involves a two-part inquiry: (1) whether Plaintiffs possess interests that are antagonistic to the interests of other class members, and (2) whether the proposed class’ counsel possess the qualifications and experience to conduct the litigation.” Tri-State, 215 F.R.D. at 690-91. 
Plaintiff and the other class members seek statutory damages under the TCPA. Given the identity of claims between Plaintiff and the other class members, there is no
potential for conflicting interests. There is no antagonism between their interests. Plaintiff understands her obligations and the nature of the claims, is involved in the litigation, and is interested in representing the class and enforcing the TCPA. Plaintiff’s Co-Counsel are well-qualified in both Class Actions and prosecuting TCPA claims. Plaintiff’s Co-Counsel have the experience to conduct this litigation and to adequately represent the class.
Based upon the foregoing, “Adequacy of Representation” is satisfied.
11. Rule 23(b)(3)
For certification under Rule 23(b)(3), the plaintiff must also show that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).
Predominance
Rule 23(b)(3) requires that common questions of law or fact predominate over individual questions. However, “Under Rule 23(b)(3), it is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.” Klay, 382 F.3d at 1254 (internal citations and quotations omitted). As discussed above, common legal issues predominate because the class members’ claims arise under the same federal statute. Here, common fact issues predominate because the class members’ claims are focused on Defendant’s contact of Plaintiff and the putative Class Members on their cellular telephones without their prior express consent within the meaning of the TCPA and the Regulations promulgated thereunder.
Superiority
Rule 23(b)(3) requires that “[a] class action is superior to other available methods for the fair and efficient adjudication of the [claims].” Klay, 382 F.3d at 1269. Hinman found that “resolution of the [TCPA] issues on a classwide basis, rather than in thousands of individual lawsuits would be an efficient use of both judicial and party resources.” Id., 545 F. Supp. 2d at 808 see also Sadowski, supra, 2008 WL 2224892 at *5 (“class treatment appears to be the superior method of handling Plaintiff’s [TCPA] claims.”). 
“Rule 23(b)(3) was designed for situations such as this, in which the potential recovery is too slight to support individual suits, but injury is substantial in the aggregate.” Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006). From the perspective of the court system and the class members, a class action is superior to individual actions because the maximum recovery for each class member is limited to statutorily prescribed damages and the TCPA does not allow for fee shifting. The susceptibility of TCPA claims to class certification treatment cannot be reasonably questioned. Many state and federal courts have certified contested TCPA classes. Annexed hereto as Exhibit “A”, and incorporated herein by reference, is a listing of over 100 TCPA class certification decisions from around the country.

IV. CONCLUSION
The proposed Class meets the requirements of Rules 23(a), (b)(3) and (g).
Plaintiff requests that the Court certify the class, appoint Plaintiff as the class
representative, and appoint Plaintiff’s attorneys as class counsel.
Respectfully submitted this 13th day of April, 2011.

/s/. Maurice Arcadier_____
Maurice Arcadier, Esquire
Florida Bar No. 131180
ARCADIER & ASSOCIATES, P.A.
Co-Counsel for Plaintiffs
2815 W. New Haven Blvd., #304
W. Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075 
Email: office@wamalaw.com 

/s/ Henry A. Turner_________
Henry A. Turner, Esquire
Georgia Bar No. 719310
(Pro Hac Vice Application Pending)
TURNER LAW OFFICES, LLC
Co-Counsels for Plaintiff
403 W. Ponce de Leon Avenue
Suite 207
Decatur, Georgia 30030
Telephone: (404) 261-7787
hturner@tloffices.com 

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