The U.S. Court of Appeals for the Tenth Circuit recently affirmed a trial court's second denial of class certification of claims raised under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA").
In so ruling, the Tenth Circuit held that the class-representative plaintiff's mere submission of a list of names of prospective class members -- without inclusion of a class definition -- fell short of meeting the plaintiff's burden to show that the class certification requirements were satisfied.
A copy of the opinion is available at: Link to Opinion
A consumer ("Consumer") filed a putative class-action lawsuit on behalf of himself and a proposed class of similarly situated consumers who allegedly received calls to their cell phones from an auto loan financing company through the alleged use of an automatic telephone dialing system (ATDS) without prior express consent, in supposed violation of the TCPA.
After the Consumer's first attempt at class certification was denied, his second motion for class certification asked the trial court to certify a class of 482 cell phone subscribers, only identifying the prospective class members by name in an exhibit to the motion and nothing more.
The trial court denied the motion yet again, and this appeal follows.
On appeal, the Tenth Circuit noted that at the class certification stage, a class-representative plaintiff must submit a proposed class definition, which allows the trial court to evaluate the Federal Rule of Civil Procedure 23 requirements and determine whether to certify the proposed class. See Fed. R. Civ. P. 23(c)(1)(B) ("[a]n order that certifies a class action must define the class . . . .").
Although the submission of a list of names of proposed class members is not in and of itself fatal to class certification, a failure to also define the class is.
Here, by providing nothing more than a list of names to the trial court, the Tenth Circuit found that the Consumer effectively asked the court to work backwards to determine which commonalties between the members could make it a class in order to come up with a class definition, thus failing to meet his burden to show that the class certification requirements were satisfied. See Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).
Accordingly, the trial court's denial of class certification was affirmed.
Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, Suite 603
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: rwutscher@MauriceWutscher.com
Admitted to practice law in Illinois
Alabama | California | Florida | Georgia | Illinois | Massachusetts | New Jersey | New York | Ohio | Pennsylvania | Tennessee | Texas | Washington, DC
NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.
Our updates and webinar presentations are available on the internet, in searchable format, at:
Financial Services Law Updates
and
The Consumer Financial Services Blog™
and
