                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________             FILED
                                                  U.S. COURT OF APPEALS
                            No. 09-13344            ELEVENTH CIRCUIT
                                                     FEBRUARY 22, 2010
                        Non-Argument Calendar
                                                         JOHN LEY
                      ________________________
                                                          CLERK

                   D. C. Docket No. 07-60695-CV-JEM

RICHARD FRESCO, et al.,


                                                              Plaintiffs,

SHARON TAYLOR,
JAMES DOUGLAS BOOKER,
LOWRY BRILEY,
TWILAH BROWN,
JAMES D. CLARY,
SHARON A. CLARY,
ALICE M. COOKS,
ARLANDO COOKS,
ELIZABETH DEWITT,
KENNETH GOSSIP, SR.,
KENNICE GOSSIP,
PAMELA HENSLEY,
ROBERT G. HOLLINESS,
CAROLYN LATHAM HOLUB,
BRANDI JEWELL,
TRACY KARP,
DAVID PATTERSON,
RONNIE PHILLIPS,
JAMES ROBERTS,
LUZ ANN ROBERTS,
KIMBERLY DAWN UNDERWOOD,
MARILYN WHITAKER,
WILLIAM "TROY" WILSON,


                                                                 Plaintiffs-Appellants,

                                        versus

R.L. POLK & CO.,
ACXIOM CORPORATION,
a Delaware Corporation,


                                                                Defendants-Appellees.


                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                 (February 22, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Appellants, putative class members in this Florida class action, appeal the

Florida district court’s preliminary injunction, which bars them from pursuing their

claims in a separate class action lawsuit in Texas. We affirm the preliminary

injunction. We also decline to exercise our pendent appellate jurisdiction to review

the district court’s preliminary order certifying a national settlement class.



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I. Background

      This appeal arises out of the allegedly illegal acquisition and sale of personal

information obtained from motor-vehicle records in Florida and Texas. In 2003, a

class of Florida plaintiffs (Richard Fresco and others) filed suit in the Southern

District of Florida, alleging that Acxiom Corporation and other defendants had

obtained and sold personal information from Florida motor-vehicle records in

violation of the Drivers’ Privacy Protection Act (DPPA). Fresco v. Automotive

Directions, Inc. (Fresco I), No. 03-cv-61063 (S.D. Fla. Jan. 16, 2009). In January

2007, a class of Texas plaintiffs (Sharon Taylor and others)—the appellants in this

case—filed suit in the Eastern District of Texas against Acxiom and other

defendants for violations of the DPPA in Texas. Taylor v. Acxiom, No. 2:07cv01

(E.D. Tex. filed Jan. 4, 2007).

      In 2007, some of the defendants in Fresco I reached a settlement with the

class of Florida plaintiffs. The plaintiffs’ claims against the non-settling

defendants (R.L. Polk & Co. and Acxiom Corp.) were severed and constituted a

separate case. Fresco v. R.L. Polk & Co. (Fresco II), No. 07-cv-60695 (S.D. Fla.

filed Dec. 13, 2007). The Florida plaintiffs then filed an amended complaint in

Fresco II, seeking injunctive relief on behalf of a nationwide class of all drivers

and motor-vehicle record holders along with actual damages, statutory liquidated



                                           3
damages, and attorney’s fees and expenses.

       On January 12, 2009, the parties in Fresco II entered into a proposed

settlement agreement. Because the Florida plaintiffs were pursuing injunctive

relief, this settlement agreement provides for the formation of a national settlement

class under Federal Rule of Civil Procedure 23(b)(2) with no right of any class

member to opt out. The members of this settlement class—if certified by the

Florida district court in a final judgment—would be prohibited from pursuing

injunctive relief as well as statutory or punitive damages against R.L. Polk and

Acxiom for violations of the DPPA and other related state-law provisions.1

       On June 15, 2009, the district court entered an order preliminarily approving

the certification of a national settlement class in Fresco II. Along with this order,

the court issued a preliminary injunction temporarily barring Sharon Taylor and the

other named Texas plaintiffs from proceeding with the Texas litigation pending the

Florida district court’s final judgment. The Texas plaintiffs appeal this preliminary

injunction under 28 U.S.C. § 1292(a)(1).



II. Discussion

       We review preliminary injunctions for an abuse of discretion. See S.E.C. v.


       1
         Under the terms of the agreement, individual class members could still bring individual
claims for actual damages.

                                                4
Unique Fin. Concepts, Inc., 196 F.3d 1195, 1198 (11th Cir. 1999). “A district

court abuses its discretion if it applies an incorrect legal standard, follows improper

procedures in making the determination, or makes findings of fact that are clearly

erroneous.” Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,

1336 (11th Cir. 2002).

      Appellants seek to use their interlocutory appeal of the district court’s

preliminary injunction to challenge the district court’s preliminary certification of a

national settlement class under Federal Rule of Civil Procedure 23(b)(2).

Appellants do not present any arguments suggesting that the district court abused

its discretion in issuing the preliminary injunction; instead, they solely challenge

the district court’s preliminary certification of a national settlement class, an order

that is normally non-appealable. Appellants argue that we have pendent appellate

jurisdiction to review the order because we must review it to ensure meaningful

review of the preliminary injunction. See King v. Cessna Aircraft Co., 562 F.3d

1374, 1379 (11th Cir. 2009).

      Although we have pendent appellate jurisdiction to consider the class-

certification issue, we are not required to exercise it. “Pendent jurisdiction depends

on the exercise of this court’s discretion and judicial economy considerations. In

determining whether to exercise discretionary pendent jurisdiction we do so with



                                            5
caution.” Honduras Aircraft Registry, Ltd. v. Gov’t of Honduras, 129 F.3d 543,

545 (11th Cir. 1997). In this case, because the district court is nearing a final

judgment and might modify its class-certification order, considerations of judicial

economy counsel that we decline to exercise our pendent appellate jurisdiction.

See Gaulter v. Capdeboscq, 594 F.2d 127, 129 (5th Cir. 1979) (declining to

consider a fee award under § 1292(a)(1) because “[t]he district court could modify

its order . . . any time prior to the entry of final judgment”).2

       We therefore only consider whether the district court abused its discretion in

issuing the preliminary injunction. See Mercury Motor Express, Inc. v. Brinke, 475

F.2d 1086, 1091 (5th Cir. 1973) (“A court of appeals normally will not consider

the merits of a case before it on an interlocutory appeal except to the extent

necessary to decide narrowly the matter which supplies appellate jurisdiction.”).

District courts may issue preliminary injunctions when the moving party shows:

(1) a substantial likelihood of prevailing on the merits of the underlying case when

the case is ultimately tried; (2) irreparable injury during the pendency of the suit

will be suffered unless the injunction issues immediately; (3) the threatened injury

to the movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if issued, the injunction would not be adverse to the public


       2
        Decisions of the Fifth Circuit rendered prior to October 1, 1981 are binding precedent.
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                                6
interest. See Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir.

1991). Because the appellants have advanced no argument that the district court

incorrectly applied this legal standard, followed improper procedures, or made

clearly erroneous findings of fact, they have abandoned their challenge to the

preliminary injunction. The preliminary injunction, therefore, is

AFFIRMED.




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