EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 15, 2012

Class Act?: 9th Circuit Finds Plaintiff With 10+ Year Old Convictions & False Names An Adequate Class Representative

A group of plaintiffs seek provisional class certification for a class action against a defendant, claiming that its debt collection efforts violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. The defendant opposes class certification, claiming, inter alia, that one of the class representatives will not "fairly and adequately protect the interests of the class," as required by Federal Rule of Civil Procedure 23(a)(4). Why? The representative had two 10+ year old prior convictions for dishonesty and had used multiple names in the past. According to the Ninth Circuit in Meyer v. Portfolio Recovery Associates, LLC, 2012 WL 4840814 (9th Cir. 2012), however, these facts were not fatal to the individual being provisionally deemed an adequate class representative.

In Meyer, the facts were as stated above. I'm not sure about the exact facts of Meyer, but I'm assuming that a big issue at trial would be whether the class members did in fact receive phone calls from the defendant that violated the Telephone Consumer Protection Act. In other words, the credibility of the class representatives would have at least some importance to the outcome at trial.

So, what role would the representative's past have in that outcome? Here is the Ninth Circuit's discussion of the issue:

PRA also argues that Meyer failed to satisfy the requirements of FRCP 23(a) because Meyer was not an adequate class representative due to convictions for offenses involving dishonesty and because he has used multiple names in the past. PRA argues that the district court did not analyze Meyer's personal credibility and integrity. We conclude the district court acted within its discretion when it provisionally decided Meyer was an adequate class representative. The district court did consider PRA's argument that Meyer's criminal record included convictions for deceptive conduct, but it also considered that Meyer's convictions were from 1998 and 2001, more than 10 years ago,[FN2] and that Meyer had since taken positive steps in his life, including his graduation from the University of California. On this record we cannot say the district court abused its discretion by accepting Meyer as a provisional class representative.

[FN2] See Fed.R.Evid. 609(b).

Hmmm....let's start with the fact that Meyer used multiple names in the past. Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

I think that Meyer's use of multiple names in the past has strong bearing on his character for untruthfulness, so I think that there's a decent chance that it could be raised during cross-examination when Meyer is on the witness stand.

Next, let's look at Meyer's convictions. It looks like one is about 14 years old and the other is about 11 years old. Federal Rule of Evidence 609(b) states that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

So, would the probative value of either or both of Meyer's prior convictions substantially outweigh their prejudicial effect? I don't know. The Ninth Circuit doesn't list the crime of conviction for either, but it does not that they are "convictions for crimes of honesty...." That means that the nature of both crimes should strongly favor admission. 

The crimes are 10+ years old, which favors exclusion, but one of them is just outside the 10 year window, and the fact that Meyer is a repeat offender who has also used false names means that remoteness isn't as much of a concern as usual. 

I doubt that Meyer's prior convictions are similar at all to the allegations of the class action, meaning that there would be little concern that the prior convictions would be misused as propensity character evidence. As noted above, Meyer's credibility will likely be pretty important to the class action, which both favors and disfavors admission.

Overall, it seems to me that defense counsel would have a decent argument for admitting at least one of Meyer's prior convictions. Given this, was Meyer an adequate class representative?



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