The Tenth Circuit recently confirmed in a Telephone Consumer Protection Act class action that a plaintiff has to provide more than a list of potential plaintiffs’ names to certify a class.
The Tenth Circuit appeal in Rivera v. Exeter Finance Corp., No. 20-1031 (10th Cir. Nov. 23, 2020), affirmed the District of Colorado’s denial of class certification in the case. The plaintiff, who alleged the defendant robocalled him over 200 times and sought to represent a class of TCPA plaintiffs, struck out not once, but twice, with the district court.
For his first class certification attempt, the plaintiff provided a four-part class definition, which is common in class actions. The district court declined to certify the class because it was not convinced the plaintiff was a member of the class. The court hesitated to construe the class definition in a way to include the plaintiff in the class “without creating other standing or class certification issues.” See Rivera v. Exeter Finance Corp., No. 1:15-cv-01057-PAB-MEH (D. Colo. Oct. 16, 2017).
So, the plaintiff tried again. For his second attempt at certification, he took a “novel approach” and did not provide a class definition at all. Instead, he submitted a list of 482 names as his “class.” The names came from records produced in discovery, which the plaintiff narrowed to those he believed were most likely to have been robocalled by the defendant. The plaintiff then put those names on a list and submitted it to the court as a class under Rule 23 of the Federal Rules of Civil Procedure. The district court rejected this certification attempt as well, noting the only common characteristic among the putative class members was that “their names appear on a list [the plaintiff] created.” The class was not ascertainable as required by Rule 23.
The plaintiff appealed that decision, but the Tenth Circuit affirmed the district court. The appellate panel noted a submission of a list of names is not “fatal to class certification, but a failure to also define the class is.” The plaintiff had provided no evidence or legal argument which would provide sufficient connection among the names on the list. The Tenth Circuit explained a court cannot be expected to “work backwards” from a list of names to determine whether the individuals identified share enough commonalities in fact and alleged injury to comprise a certifiable class. The panel summarily rejected the plaintiff’s attempt to “put[ ] the cart before the horse” and affirmed the denial of class certification. Importantly, the Tenth Circuit’s ruling is not limited to TCPA class actions but applies to any attempt to certify a class using only a list of names.
The Tenth Circuit made clear that plaintiffs who submit lists of names as their sole support for class certification are likely to wind up on courts’ naughty lists.