                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JESSE MEYER, an individual, on his        No. 11-56600
own behalf and on behalf of all
others similarly situated,                   D.C. No.
                    Plaintiff-Appellee,   3:11-cv-01008-
                                             AJB-RBB
                  v.

PORTFOLIO RECOVERY ASSOCIATES,            ORDER AND
LLC, a Delaware limited liability          AMENDED
company,                                    OPINION
              Defendant-Appellant,

                 and

DOES, 1–100, inclusive,
                           Defendant.


     Appeal from the United States District Court
        for the Southern District of California
     Anthony J. Battaglia, District Judge, Presiding

                Argued and Submitted
          May 10, 2012—Pasadena, California

                Filed October 12, 2012
              Amended December 28, 2012
2              MEYER V . PORTFOLIO RECOVERY

      Before: Dorothy W. Nelson, Raymond C. Fisher,
           and Morgan Christen, Circuit Judges.

                   Opinion by Judge Christen


                           SUMMARY*


            Telephone Consumer Protection Act

    The panel affirmed the district court’s order granting the
plaintiff’s motion for a preliminary injunction and provisional
class certification in an action under the Telephone Consumer
Protection Act. The district court preliminarily enjoined the
defendant debt collection service from placing calls to
cellular telephone numbers it had obtained via skip-tracing,
rather than from a creditor or injunctive class member.

    The panel held that an earlier notice of appeal did not
divest the district court of jurisdiction to enter the preliminary
injunction because that notice of appeal was premature and
had no operative effect. In addition, the district judge’s order
transferring the case to another judge did not impair his
authority to enter the preliminary injunction because the
transfer order was not effective until entered in the docket.

    The panel held that the district court acted within its
discretion when it ruled that the plaintiff met the
commonality, typicality, and adequacy requirements of Fed.
R. Civ. P. 23(a) and did not abuse its discretion by certifying

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              MEYER V . PORTFOLIO RECOVERY                    3

a provisional class for purposes of the preliminary injunction.
The panel also held that Rule 23(b)(2) does not restrict class
certification to instances when final injunctive relief issues.

    Affirming the grant of preliminary injunctive relief, the
panel held that the plaintiff demonstrated a likelihood of
success on the merits. The record showed that the defendant
used an automatic telephone dialing system because its
predictive dialers fell squarely within the FCC’s definition
and had the capacity to store or produce numbers using a
random or sequential number generator. The panel held that
the plaintiff also demonstrated irreparable harm, and so the
panel need not decide whether to extend to TCPA claims the
holding of Flexible Lifeline Sys., Inc. v. Precision Lift, Inc.,
654 F.3d 989 (9th Cir. 2011). Finally, the panel rejected the
defendant’s due process challenge to the TCPA.


                         COUNSEL

Christopher W. Madel (argued) and Jennifer M. Robins,
Robins, Kaplan, Miller & Ciresi LLP, Minneapolis,
Minnesota; Edward D. Lodgen and Julia V. Lee, Robins,
Kaplan, Miller & Ciresi LLP, Los Angeles, California, for
Defendant-Appellant.

Ethan Preston (argued), Preston Law Offices, Phoenix,
Arizona; David C. Parisi and Suzanne Havens Beckman,
Parisi & Havens LLP, Sherman Oaks, California, for
Plaintiff-Appellee.

Jan Chilton, Severson & Werson, San Francisco, California,
for Amici Curiae American Financial Services Association
and California Financial Services Association.
4            MEYER V . PORTFOLIO RECOVERY

Thomas Pinder, Washington, D.C., for Amicus Curiae
American Bankers Association.


                          ORDER

   The opinion filed on October 12, 2012, and appearing at
696 F.3d 943, is amended as follows:

    On page 12258 of the slip opinion, replace the final two
sentences of the third paragraph with the following language:

    Pursuant to the FCC ruling, prior express consent is
    consent to call a particular telephone number in
    connection with a particular debt that is given before
    the call in question is placed. Id. at 564–65. PRA did
    not show a single instance where express consent was
    given before the call was placed. Id. at 565.

    An amended opinion is filed concurrently with this order.

    With this amendment, Judges Fisher and Christen vote to
deny Appellant’s petition for panel rehearing and rehearing
en banc, filed on October 26, 2012, and Judge Nelson so
recommends. The full court has been advised of the petition
for rehearing and rehearing en banc and no judge requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.

    The petition for panel rehearing and rehearing en banc is
DENIED. No further petitions for en banc or panel rehearing
shall be permitted.
                MEYER V . PORTFOLIO RECOVERY                           5

                             OPINION

CHRISTEN, Circuit Judge:

    Portfolio Recovery Associates, LLC (PRA) appeals the
September 14, 2011 district court order granting Jesse
Meyer’s motion for a preliminary injunction and provisional
class certification. Meyer’s complaint alleged that PRA’s
debt collection efforts violated the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227. The district court’s
preliminary injunction restrained PRA from using its Avaya
Proactive Contact Dialer to place calls to cellular telephone
numbers with California area codes that PRA obtained via
skip-tracing.1

    We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1292(a)(1). See also Paige v. State of Cal.,
102 F.3d 1035, 1039 (9th Cir. 1996). Having reviewed the
record, we affirm.

    We resolve several issues on appeal: (1) whether the
district court had jurisdiction and authority to issue its
September 14, 2011 order; (2) whether the district court
abused its discretion by certifying a provisional class for
purposes of the preliminary injunction; and (3) whether the
district court abused its discretion in granting the preliminary
injunction.

    We review de novo whether a district court has authority
to issue a preliminary injunction or class certification order;


 1
    Skip-tracing is the process of developing new telephone, address, job
or asset information on a customer, or verifying the accuracy of such
information.
6            MEYER V . PORTFOLIO RECOVERY

we review the exercise of that authority for abuse of
discretion. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d
1137, 1140 (9th Cir. 2009). See also Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011);
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th
Cir. 2001) (amended). “An abuse of discretion will be found
if the district court based its decision ‘on an erroneous legal
standard or clearly erroneous finding of fact.’” Cottrell,
632 F.3d at 1131 (internal citation omitted). We look to
“whether the district court reaches a result that is illogical,
implausible, or without support in inferences that may be
drawn from facts in the record.” United States v. Hinkson,
585 F.3d 1247, 1262 n.21 (9th Cir. 2009) (en banc).
Conclusions of law are reviewed de novo and findings of fact
for clear error. Cottrell, 632 F.3d at 1131.

    1. Jurisdiction/Authority

    This appeal arises from Meyer’s motion for a preliminary
injunction preventing PRA, a debt collection service, from
contacting debtors via their cellular telephone numbers in
violation of the TCPA. Meyer also moved for provisional
certification of a class of debtors who were contacted by PRA
on their cellular telephones. At the conclusion of the hearing
on Meyer’s motion, Judge Anthony J. Battaglia orally
indicated that it would be denied. A minute order entered
June 23, 2011 also indicated that the motion would be denied,
but the minute order stated that the court would prepare a
written order. Meyer filed a notice of appeal from the June
23, 2011 minute order, but on September 14, 2011, Judge
Battaglia entered a written order granting a preliminary
injunction and provisionally certifying the class. Judge
Battaglia signed another order dated September 13, 2011
transferring this matter to another district court judge who
              MEYER V . PORTFOLIO RECOVERY                      7

was presiding over an earlier-filed and related case. The
transfer order was entered into the docket on September 19,
2011.

    PRA argues on appeal that the June 23, 2011 notice of
appeal divested the district court of jurisdiction to enter its
September 14, 2011 order. We disagree. The district court’s
June 23, 2011 minute order was not a final appealable order.
Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir.
1966). It did not clearly evidence the judge’s intention that
it would be the court’s final act on the matter, Brown v.
Wilshire Credit Corp. (In re Brown), 484 F.3d 1116, 1120
(9th Cir. 2007); in fact, it expressly stated that a written order
would follow. Accordingly, the June 23, 2011 notice of
appeal was premature and had no operative effect.
Jurisdiction remained in the district court as of September 14,
2011.

    PRA also argues that Judge Battaglia lacked authority to
preside over this case after September 13, 2011, the date he
signed the transfer order. This argument is unavailing
because the transfer order was not effective until it was
entered into the docket on September 19, 2011 and the order
granting the preliminary injunction and provisional class
certification was entered on September 14, 2011. The
transfer order did not impair Judge Battaglia’s authority to
enter the September 14, 2011 order granting a preliminary
injunction and provisional class certification.

    2. Provisional class certification

   PRA argues the district court erred because the
requirements of Federal Rule of Civil Procedure (FRCP)
23(a) were not met in this case. We conclude the district
8             MEYER V . PORTFOLIO RECOVERY

court acted within its discretion when it ruled that Meyer met
the commonality, typicality, and adequacy requirements of
FRCP 23(a) and did not abuse its discretion by granting
provisional class certification.

     Meyer has the burden of meeting the threshold
requirements of FRCP 23(a). Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011). The commonality and
typicality requirements of FRCP 23(a) “tend to merge,” but
they “[b]oth serve as guideposts for determining whether
under the particular circumstances maintenance of a class
action is economical and whether the named plaintiff’s claim
and the class claims are so interrelated that the interests of the
class members will be fairly and adequately protected in their
absence.” Id. at 2551 n.5 (quotations and citation omitted).
“All questions of fact and law need not be common to satisfy
the [commonality requirement]. The existence of shared
legal issues with divergent factual predicates is sufficient, as
is a common core of salient facts coupled with disparate legal
remedies within the class.” Hanlon v. Chrysler Corp.,
150 F.3d 1011, 1019 (9th Cir. 1998) (amended). The
common contention “must be of such a nature that it is
capable of classwide resolution — which means that
determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one
stroke.” Dukes, 131 S. Ct. at 2551. “[R]epresentative claims
are ‘typical’ if they are reasonably co-extensive with those of
absent class members; they need not be substantially
identical.” Hanlon, 150 F.3d at 1020.

    The district court limited the provisional class in this case
to all persons using a cellular telephone number that “(1)
PRA did not obtain either from a creditor or from the
Injunctive Class member; and (2) has a California area-code;
              MEYER V . PORTFOLIO RECOVERY                    9

or (3) where PRA’s records identify the Injunctive Class
member as residing in California.”

    PRA argues that individualized issues of consent should
have precluded a finding of typicality or commonality
because some debtors might have agreed to be contacted at
any telephone number, even telephone numbers obtained after
the original transaction. But the Federal Communications
Commission (FCC) issued a declaratory ruling clarifying the
requirement for consent in the context of the TCPA that
defeats PRA’s argument. See In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of
1991, Request of ACA Int’l for Clarification and Declaratory
Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008). Pursuant to the
FCC ruling, prior express consent is consent to call a
particular telephone number in connection with a particular
debt that is given before the call in question is placed. Id. at
564–65. PRA did not show a single instance where express
consent was given before the call was placed. Id. at 565.

    PRA also argues that the class is overbroad because it
may include debtors who provided express consent to be
contacted on their cellular telephones but whose telephone
numbers were obtained via skip-tracing. But PRA does not
point to a single instance where a cellular telephone number
that had been given by the debtor to the original creditor was
also found by PRA via skip-tracing, and the evidence before
the district court suggested that cellular telephone numbers
PRA found via skip-tracing were unlikely to have been given
to PRA by the debtors. Specifically, PRA’s securities filing
shows that PRA’s practice was to first attempt to contact
debtors via the information received from creditors and only
resort to skip-tracing if the debtors could not be reached using
such information. Given this record, it was reasonable for the
10              MEYER V . PORTFOLIO RECOVERY

district court to find that cellular telephone numbers obtained
via skip-tracing had not been given to the creditors in the
course of the underlying consumer transactions.

    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,2 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.

    PRA also argues that the district court lacked authority to
certify a provisional class pursuant to FRCP 23(b)(2) because
that rule only provides for final, not preliminary, injunctive
relief.

    FRCP 23(b) states, “A class action may be maintained if
Rule 23(a) is satisfied and if . . . the party opposing the class
has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” The plain language of FRCP 23(b)(2) does not

 2
     See Fed. R. Evid. 609(b).
              MEYER V . PORTFOLIO RECOVERY                   11

restrict class certification to instances when final injunctive
relief issues; it only requires that final injunctive relief be
appropriate. PRA did not show the district court incorrectly
interpreted or applied FRCP 23(b)(2).

   3. Preliminary injunction

    Generally, a party seeking a preliminary injunction must
demonstrate: (1) a likelihood of success on the merits; (2)
that he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in his
favor; and (4) that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).

    PRA first argues the district court erred by finding that
Meyer demonstrated a likelihood of success on the merits.
We disagree. The three elements of a TCPA claim are: (1)
the defendant called a cellular telephone number; (2) using an
automatic telephone dialing system; (3) without the
recipient’s prior express consent. 47 U.S.C. § 227(b)(1). The
term “automatic telephone dialing system” means “equipment
that has the capacity – (A) to store or produce telephone
numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1). PRA argues that its dialers do not have the
present capacity to store or produce numbers using a random
or sequential number generator. As we explained in
Satterfield v. Simon & Schuster, Inc., the clear language of
the TCPA “mandates that the focus must be on whether the
equipment has the capacity ‘to store or produce telephone
numbers to be called, using a random or sequential number
generator.’” 569 F.3d 946, 951 (9th Cir. 2009). PRA’s
securities filing shows that PRA uses predictive dialers. PRA
12           MEYER V . PORTFOLIO RECOVERY

does not dispute that its predictive dialers have the capacity
described in the TCPA. This is sufficient to determine that
PRA used an automatic telephone dialing system. See id.
(“[A] system need not actually store, produce, or call
randomly or sequentially generated telephone numbers, it
need only have the capacity to do it.”).

    The FCC further defined “automatic telephone dialing
system” to include predictive dialers. See In the Matter of
Rules and Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 18 FCC Rcd. 14014, 14091–93 (July 3, 2003).
“[A] predictive dialer is 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. The hardware, when paired with
certain software, has the capacity to store or produce numbers
and dial those numbers at random, in sequential order, or
from a database of numbers.” Id. at 14091. “As one
commenter points out, the evolution of the teleservices
industry has progressed to the point where using lists of
numbers is far more cost effective. The basic function of
such equipment, however, has not changed — the capacity to
dial numbers without human intervention.” Id. at 14092.
PRA’s predictive dialers fall squarely within the FCC’s
definition of “automatic telephone dialing system.”

    PRA argues that the FCC did not have the authority to
define predictive dialers as “automatic telephone dialing
systems” and that the regulation reflecting this definition is
therefore invalid. But PRA did not raise this argument in the
district court and it did not argue any exception to the rule
that arguments not raised before the district court are waived.
Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011).
We therefore deem this argument waived.
              MEYER V . PORTFOLIO RECOVERY                    13

     PRA failed to argue in the district court that Meyer’s
motion should have been denied for failure to demonstrate
that the injury in this case was caused by something against
which the TCPA was designed to protect, that is, use of an
automatic telephone dialing system to contact consumers via
their cellular telephones without their consent. This argument
is also deemed waived. Id. Moreover, even if the argument
had not been waived, as discussed below, the TCPA was
designed to protect against the types of calls at issue in this
case. See Satterfield, 569 F.3d at 954.

    PRA argues that the district court erred by using the
wrong legal standard when it decided Meyer did not need to
show irreparable harm in order to obtain a preliminary
injunction. The district court’s order was premised on Ninth
Circuit case law approving injunctions without a showing of
irreparable harm when they are sought to prevent violations
of federal statutes that specifically provide for injunctive
relief. See, e.g., United States v. Estate Pres. Servs., 202 F.3d
1093, 1098 (9th Cir. 2000); United States v. Odessa Union
Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987); Navel
Orange Admin. Comm. v. Exeter Orange Co., Inc., 722 F.2d
449, 453 (9th Cir. 1983).

    In eBay, Inc. v. MercExchange, LLC, the Supreme Court
disapproved of the use of “categorical” rules regarding
irreparable harm in patent infringement cases, concluding that
such a rule “cannot be squared with the principles of equity
adopted by Congress.” 547 U.S. 388, 393 (2006). In Flexible
Lifeline Systems, Inc. v. Precision Lift, Inc., our Circuit
applied eBay’s rule to a request for injunctive relief in a
copyright infringement claim, reversing the Circuit’s “long-
standing precedent finding a plaintiff entitled to a
presumption of irreparable harm on a showing of likelihood
14            MEYER V . PORTFOLIO RECOVERY

of success on the merits in a copyright infringement case.”
654 F.3d 989, 998 (9th Cir. 2011). Our Circuit has not yet
determined whether irreparable harm must be shown in order
to obtain injunctive relief in all types of cases, but at least one
decision post-eBay but pre-Flexible Lifeline reiterated the
premise that “[t]he standard requirements for equitable relief
need not be satisfied when an injunction is sought to prevent
the violation of a federal statute which specifically provides
for injunctive relief.” Antoninetti v. Chipotle Mexican Grill,
Inc., 643 F.3d 1165, 1175–76 (9th Cir. 2010).

    In order to resolve this case, we need not decide whether
to extend Flexible Lifeline to TCPA claims, because we
conclude that Meyer demonstrated irreparable harm under the
traditional four-part test. We reach this conclusion in the first
instance because Meyer argued before the district court that
he and other class members will suffer irreparable harm from
PRA’s continuing violations of the TCPA, which violate the
class members’ right to privacy, and because the district court
found in its written order that PRA would continue to violate
the TCPA if an injunction was not issued. Cf. Flexible
Lifeline, 654 F.3d at 1000 (declining to affirm the district
court’s grant of a preliminary injunction because the district
court presumed irreparable harm without making factual
findings that would support a finding of likelihood of
irreparable harm). We have little difficulty concluding the
record supports the district court’s finding that PRA would
have continued to violate the TCPA if an injunction had not
been issued. Between February 1 and March 31, 2011, PRA
called 46,657 cellular telephone numbers with California area
codes PRA obtained via skip-tracing. In response to Meyer’s
motion for a preliminary injunction, PRA did not
acknowledge the wrongful nature of its conduct. Instead,
PRA assured the court it would stop calling Meyer without
              MEYER V . PORTFOLIO RECOVERY                   15

making any assurance regarding other members of the
provisional class. We agree with Meyer that PRA’s violation
of the TCPA violated his right to privacy, an interest the
TCPA intended to protect. Satterfield, 569 F.3d at 954.
Accordingly, Meyer demonstrated that irreparable harm is
likely in the absence of injunctive relief. Winter, 555 U.S. at
22.

    Finally, PRA briefly raises an as-applied due process
challenge to the TCPA. Questions of law, including due
process claims, are reviewed de novo. Vargas-Hernandez v.
Gonzales, 497 F.3d 919, 921 (9th Cir. 2007). The basis for
PRA’s due process claim is not entirely clear, so we analyze
it as a substantive and procedural due process challenge.
First, to the extent PRA raises a substantive due process
challenge, the property interest PRA identified is its interest
in conducting a debt collection business — an economic
interest. We have held that “[w]here a fundamental right is
not implicated . . . governmental action need only have a
rational basis to be upheld against a substantive due process
attack. If a statute is not arbitrary, but implements a rational
means of achieving a legitimate governmental end, it satisfies
due process.” Kim v. United States, 121 F.3d 1269, 1273 (9th
Cir. 1997) (citation and internal quotations omitted). Here,
Congress had several goals when it passed the TCPA,
including prohibiting the use of automatic telephone dialing
systems to communicate with others by telephone in a
manner that invades privacy. See Satterfield, 569 F.3d at 954.
Prohibiting the use of automatic dialers to call cellular
telephones without express prior consent is a rational means
of achieving this objective. To the extent PRA raises a
16           MEYER V . PORTFOLIO RECOVERY

procedural due process challenge, its argument fails because
PRA has not shown that it was denied notice or an
opportunity to be heard.

     AFFIRMED.
