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10th Cir. Upholds Denial of Class Certification in TCPA Case

ATDSThe 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 (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 in Rivera v. Exeter Finance Corp. is available at:  Link to Opinion.

A 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, 47 U.S.C. § 227.

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.

The attorneys of Maurice Wutscher are seasoned business lawyers with substantial experience in business law, financial services litigation and regulatory compliance. They represent consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. They have defended scores of putative class actions, have substantial experience in federal appellate court litigation and bring substantial trial and complex bankruptcy experience. They are leaders and influencers in their highly specialized area of law. They serve in leadership positions in industry associations and regularly publish and speak before national audiences.

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