Federal Court Denies Certification Because the Class, as Defined, Was Not Immediately and Objectively Identifiable
The class action rule itself gives little guidance regarding how to properly define a class, which may explain why attacks on the class definition are discussed in the case law with little frequency. Nevertheless, courts increasingly are recognizing that there are common law rules governing how classes may be defined, and they are more than willing to dismiss a case for definitional problems.
One of the most common problems with class definitions is that membership in the class is not immediately and objectively identifiable, making membership in the class itself something that must be the subject of mini-trials. This is particularly problematic, as the court and the parties have no knowledge at the outset what people will be bound by the judgment in the class action. Cases rejecting these kinds of definitions include Intratex v. Beeson (Tex. 2000), and The Coca Cola Company v. Nixon (Mo. 2008).
Add to this list Brown v. SBC Communications, Inc., 2009 WL 260770 (S.D. Ill. Feb. 4, 2009). In Brown, plaintiff sued on behalf of a putative class of telephone subscribers who allegedly had been the victims of "cramming" -- i.e., having unauthorized charges placed on their bill for products or services they did not receive. Plaintiff sued for violations of Illinois' Consumer Fraud and Deceptive Business Practices Act and unjust enrichment.
The court concluded that class could not be certified because the definition -- "all persons or entities who were residents of Illinois and who were improperly billed for cramming charges" -- would require individualized factfinding:
Similarly, here, the Court will need to make individual determinations as to whether each proposed class member authorized the charges for which he was billed by defendants. The proposed class member authorized the charges for which he was billed by defendants. The result will be multiple mini-trials, each requiring individual proofs.
Id. at *3.
Backpedaling in his reply brief, plaintiff proposed another definition that would include only subscribers who paid for charges they did not use. The court held that this was no better:
While the Court agrees that the fact that an individual member did not utilize the service for which he was charged is evidence that he did not actually authorize the charge, the Court would still have to resolve the issue of whether each individual class member actually authorized the charge for which he or she was billed. If an individual member did authorize the charge, then Defendants did not act improperly, at least as alleged by Plaintiff, in billing for the charge, regardless of whether the member actually utilized the service for which he or she was charged.
Id. at *4
When analyzing arguments in defense of class action litigation, it pays to start up front with close consideration of the class definition.
