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What’s in a Name? Not a Certified Class

The Tenth Circuit kicked off the holiday season with a little TCPA humor. In Rivera v. Exeter Finance Corp., No. 20-1031, 2020 WL 6844032, at *1 (10th Cir. Nov. 23, 2020), the Tenth Circuit Court of Appeals was confronted with a case about “[p]esky robocalls: we all get them, we all hate them, and yet we cannot seem to get rid of them, no matter how many times we unsubscribe, hang up, or share choice words with the machine on the other end of the line.” The plaintiff evidently “share[d] this sentiment” with Justices Tymkovich, Briscoe, and Murphy, but also figured that he was “not the only one suffering from [defendant]’s vexatious robocalls” and brought a putative class action. Id.

After plaintiff unsuccessfully sought to certify a proposed class, plaintiff tried again using a “novel approach” that “puts the cart before the horse.” Id. Plaintiff simply submitted a list of 482 names to the district court. That’s it. No class definition, no explanation, just a list. The district court denied certification.

The Tenth Circuit agreed, holding that “[s]ubmission of a list of names is not in and of itself fatal to class certification, but a failure to also define the class is.” Id. (emphasis in original). If a list of names were sufficient, the court would be required to “work backwards to determine which commonalities between the members could make it a class in order to come up with a class definition. . . . . But defining the class from scratch is not the district court’s job.” Id.

So, while a rose by any other name may swell as sweet, a list of putative class members without a class definition does not.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 345
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About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney
Partner

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

215-988-2604
Andrew Van Houter, Commercial litigation lawyer, Drinker Biddle
Associate

Andrew L. Van Houter focuses his practice on complex commercial litigation, representing Fortune 100 companies, hedge funds and smaller businesses. Andrew also assists clients in responding to governmental inquiries and investigations. Andrew is a member of the Class Action group, defending companies in privacy litigation.

Andrew is a contributor to the firm's SEC Law Perspectives Blog, which provides reports, discussions, and analyses on noteworthy trends...

973-549-7018
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