The U.S. Court of Appeals for the 10th Circuit made it official on Monday: yes, robocalls are annoying, but no, there will not be a class-action lawsuit against them .
“Pesky robocalls: we all get them, we all hate them, and yet we all 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,” wrote Chief Judge Timothy M. Tymkovich for the opinion of the three-member appeals panel.
Edgar Rivera claimed that he received more than 200 calls from auto loan servicing company Exeter Finance Corp., as many as six or seven calls per day. He determined the calls were intended for the previous owner of the number. The federal Telephone Consumer Protection Act prohibits automated dialing systems from calling cell phones without consent.
In March of last year, a U.S. District Court judge denied Rivera’s motion to approve a class action lawsuit, after he submitted a list of 481 other cell phone subscribers from a list created from Exeter’s dialing records.
“That list was it,” wrote Tymkovich. “This novel approach puts the cart before the horse.”
The district judge observed that the only characteristic the 481 people shared was “their names appear on a list he created.”
Likewise, the 10th Circuit panel found Rivera failed to adequately define the lawsuit’s class, which would require a court to work backward to find a link to all of the names.
“But defining the class from scratch is not the district court’s job. It is the burden of the plaintiff,” Tymkovich explained.
Fraudulent and unwanted telephone calls generated the most complaints to the Colorado Attorney General's Office last year, with 15% relating to telephone scams or harassment from debt collectors. Federal Trade Commission data also showed Colorado ranked highest among states for per capita robocall complaints.