motion chief judge bremer committed to reversible errors the st one was that he did not address any of the rule twenty three factors in rendering his decision and  done the nd error was his basis for denying class certification was that the class was not ascertainable and in reaching that conclusion he applied the law wrong legal standard that is he applied the rd circuit's ascertain ability standard which the rd circuit has created a requirement of administrative feasibility oh requirement are addressing that much through the court did not state that it was applying that standard that is true and in fact the court did not say what standard it was apply all that we can discern from that order is the citation to the donica case and the page site as well as the quotation all of that if you looked at the donna case is a reference to the ascertain requirements as stated by the rd circuit in the career achievements which is the administrative feasibility requirement so so that's the reason or the basis for the argument that he applied the wrong standard at the motion for class sort of for the nd motion for class sort of occasion there is a discussion in there about ascertain ability now plaintiffs are not saying an appellant is not saying here that ascertain ability is not a requirement the question is how is ascertain ability to establish and what is it in rule twenty three that makes ascertain ability or requirement because remember this has to be based on a rule one th the rigorous analysis so what you see in that nd motion for classification is the point of a ballot they're saying we acknowledge your honor your ruling in our st motion for class certification wherein you definition and i think that's what the ascertain ability requirement is referring to the class well the class definition in this motion the class was defined as those four hundred and eighty two persons now in the briefing but essentially what happened was the plaintiff was identify was able to identify a few one hundred thousand people who were called  finance and then the plaintiff subpoenaed records from a t n t and was able to put those two sets of records together and come up with a list of about two thousand people now there were some people that needed to be excluded for example people who were already customers of exeter finance could not be in the class because those people ostensibly gave xor finance permission to contact so there was a process involved in which exhibit and that's that has happened before it could it could be defined in a number of different ways if you want to use objective criteria for example you could say individuals who received phone calls from exeter finance that were not previously customers of x or finance as a result of their robo calling system i guess i'm just i'm looking for what you ask traditional definition for class certification and it was essentially those individuals who received the unwanted calls from this auto dialing system  or was trying to reach a prior subscriber to that number because you'll recall that that the person's receiving these unwanted calls have numbers that had previously been x or finance customer context of that st motion for class certification defendant apple e pointed out several individuals who were included who would be included but actually and fact could not be class members because for example the person who had the phone number before them was not a subscriber to a t m t s service and it turned out that the plaintiff himself  suffered from that factual defect in that the person who had the number before him was not a subscriber he was an eight hundred and eighty customer who had a prepaid phone service number so the effect of it all was the same but because of the way the class was defined originally there were some individuals who for one reason or number were going to fall out of the class defendant pointed that out at the motion and the judge refused to grant that motion because it found that the plaintiff himself was not a member of that class for that very reason that that the person who had the number before him was a prepaid eight no i'm saying there were a number of factors that they used the plaintiffs counsel used to eliminate individuals who ran the risk of being not appropriate class members there were some other factors i think the course question is go on but remember that there will never be a complete list of class members there there's always going to be people who could be in the class who are not for example we don't know all the know it was based entirely on eighty and yarrow well i mean make this point if i may because i see that i'm running out of time the process the plaintiff's counsel went through here is not unusual the timing of it is unusual but this is the same process that happens in every class action when it's time when there's a judgment or a settlement and it's time to distribute i've written you know i right i don't believe that presents any problem whatsoever your honor and maybe i'm not understanding your question but would you be able to proceed with this p methodology your client is not a member of the class sure and that's an interesting point because i obviously the the methodology that was done in the st motion that was true the methodology applied in the nd motion that's not accurate because for the st point being that that obviously he falls within the four hundred and eighty two  but nd of all nobody doubts factually that mister rivera received these calls and that mister rivera should not have received these calls because he was never in exeter cross nobody is stating that the rest of the four hundred and eighty one did not receive these calls or that they should have received these calls so so they all are similar similarly situated in all the important factors about this case which are tied to liability so having said all that that the argument that that he is not appropriate considered a member of the class is really by the way one of typicality what counsel raising is the idea that under a traditional twenty three analysis the claims of mister rivera are not typical of the rest of the class as claims or that he is subject to a unique defense that the rest of the class is not subject to so had the court done that traditional rule twenty three analysis we could have litigated that issue and come to some resolution but that didn't happen here i see my time is up your honor heat a list of four hundred and eighty two class is about more than the ability to carry noses it's also about allowing the trial court to evaluate the explicit requirements of rule twenty three and helping ensure that the class about how the class was defined by the only common characteristic big presence on the list which is not a personal characteristics that are the type of criteria used to generate a  possesses the same interests and he suffered the same injury but the deuce kay says there are three separate parts that's two of the three but the rd is that it must be part of the clocks so that's that's a separate requirement that he be included within the definition now if the idea is that the district court maybe could have cobble something together from the various pleadings maybe but that doesn't fix the rest of the problems which is that these criteria that would be used to create this list of four hundred and eighty two are clearly defined there's no statement of what system dispositions were used to to come up with the four bad over full if they go off because they're not words so what's the problem with under representation look at a certain point and i think we've reached that point judge murphy underage looseness defeats the efficiency this court exeter has engaged in a long protracted discovery process involving thousands of accounts and to get down to this point of four hundred and eighty dollars cases accessible of spit all of this time the court will spit all this problems that were identified by the district or his work you have a class that isn't really a class that has been defined by nontraditional metadata methods and nontraditional way that is based on subjective factors that is a list of people whose only common characteristic is it is their presence on this that is perhaps more suitable for an opt in if such a procedure existed in class then it is the opt out rule twenty three procedure it all of that is appearing to correctly on the face of the definition without getting it to the specific for abuse of allowing a class to be defined simply by a list of names and the possibility do exactly what happened here follow roff class and that when it was down through fishing discovering