1

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

West Palm Beach Division

BRITTANY ROBERSON, REBECCA 

FREEMAN, BIANCA VIÑAS, TIFFANY 

KING, and TRESHA THOMPSON, 

individually and on behalf of others similarly 

situated,

 Plaintiffs, 

v.

HEALTH CAREER INSTITUTE LLC (dba 

HCI COLLEGE LLC and HCI 

ACQUISITION LLC), FLORIAN 

EDUCATION INVESTORS LLC, and 

STEVEN W. HART,

 Defendants.

Civil Action No. 9:22-cv-81883-RAR

District Judge: Rodolfo A. Ruiz, II

Magistrate Judge: Ryon M. McCabe

PLAINTIFFS’ OBJECTIONS TO REPORT AND RECOMMENDATION ON 

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Defendants engaged in a scheme, applying common policies and centralized decisions that 

deprived each and every student enrolled in HCI’s Associate of Science in Nursing Program (the 

“RN Program”) of the core promise of the program: providing class members with a viable 

pathway to nursing licensure. And that scheme had one goal—to increase HCI’s NCLEX passage 

rates no matter the cost, to pave the way for the sale of HCI and to reap huge financial rewards for

its owner, private investors, and senior administrators. Regardless of any later-occurring events, 

the Defendants harmed each member of the class by causing them to enroll in the RN Program 

under false pretenses. Because of the wealth of core common issues, class treatment is warranted.

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The revised Report and Recommendation, ECF No. 254 (“Revised R&R”), recommends 

class certification for two of the ten counts set forth in the Plaintiffs’ Second Amended Complaint, 

ECF No. 93 (“SAC”), id. at 51–52, but denies certification as to the remaining counts. Pursuant to 

Federal Rule of Civil Procedure 72(a), Plaintiffs hereby object to the following findings and 

conclusions in the Revised R&R: 

1. Individual issues predominate as to Count 1 (FDUTPA as to grading and 

advancement) because Plaintiffs cannot establish causation on a class-wide basis, 

ECF No. 254 at 38; 

2. The definition of the class under Count 2 (FDUTPA as to educational services 

provided) is overly broad and not ascertainable, and individual issues predominate, 

because Plaintiffs cannot establish exposure to misrepresentations on a class-wide 

basis, id. at 18; 

3. Individual issues predominate as to Count 4 (breach of contract as to grading and 

advancement) because Plaintiffs cannot establish causation on a class-wide basis,

id. at 43; 

4. Individual issues predominate as to Count 6 (FDUTPA as to “new” program)

because Plaintiffs cannot establish causation on a class-wide basis, id. at 45–46; 

5. Individual issues predominate as to Count 9 (ECOA) and Count 10 (Title VI) 

because students’ experience differed, Id. at 47–48; and 

6. Class treatment is inferior to other methods of adjudicating Counts 1, 2, 4, 6, 9, and 

10, id. at 51. 

Plaintiffs ask this Court to consider their objections against two critical backdrops: the mandate 

that Courts “liberally construe FDUPTA,” Lombardo v. Johnson & Johnson Consumer Companies, 

Inc., 124 F. Supp. 3d 1283, 1287 (S.D. Fla. 2015), and the “broad remedial goals” of the Equal 

Credit Opportunity Act (“ECOA”), Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1208 (11th 

Cir. 2019) (Rosenbaum, J., concurring in part) (quoting Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 

1211 n.6 (6th Cir. 1997)). 

1. Individual Issues Do Not Predominate as to Count 1 (FDUTPA as to grading and 

advancement)

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a. The Revised R&R Ignores that the Harm to Class Members Occurred at the 

Point of Sale.

The Revised R&R erroneously concludes that each class member will have to show how 

the changed grading and advancement requirements affected them in order to establish that they 

were injured and thus entitled to damages. ECF No. 154 at 38–39.1 This inquiry is plainly 

irrelevant. The injury alleged by Plaintiffs is that, at the time they enrolled in the RN Program, it 

was the nursing-licensure equivalent of a lemon. The value of the RN program was negated at the 

point of sale by Defendants’ concealed decision to prevent all but a handful of the students it 

enrolled from ever taking the licensure exam, as stated in the Renewed Motion for Class 

Certification. ECF No. 20 (“Motion”), at 25. 

Plaintiffs’ claims do not stem from a few students getting tripped up by technical changes 

to Defendants’ RN Program. This is a case in which Defendants made a conscious and deliberate 

decision to impose barriers to graduation, not for the students’ benefit, but with the goal of lining 

their own pockets and those of private investors and senior administrators through a multi-million 

dollar sale of HCI—a sale that would only be possible if HCI’s NCLEX passage rates soared to 

levels not naturally achievable given the subpar nursing education offered to the students 

intentionally targeted and recruited by Defendants. 

1 Significantly, the Revised R&R also focuses exclusively on the 50% Rule, ignoring the 

other changes to grading and advancement requirements described in the SAC and the Motion. 

The SAC describes how Defendants abruptly changed the exit exam given at the end of the last 

course in the RN Program to formats students had never seen and for were not prepared for, 

specifically Kaplan and HESI. ECF No. 93 ¶¶ 262–70, 274. As will be shown through expert 

testimony at the merits stage of this case, students whose RN Program instruction centered around 

material published by a different company, ATI, would be ill-prepared to take an exit exam 

published by Kaplan or HESI. Further, operative Enrollment Agreements stated that students 

would be given an opportunity to retake their exams; however, class members were not permitted 

a second attempt, which further increased Defendants’ success of dropping individuals from the 

RN Program before they could graduate and sit for the NCLEX. See id. at ¶ 271.

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The Revised R&R fails to consider key evidence in its analysis that establishes the systemic 

and uniform nature of Defendants’ practices and the harm it caused Plaintiffs and class members. 

The evidence demonstrates the correlation between the imposition of the new requirements and a 

dramatic increase in drops.2 ECF No. 203 at 12–13 (discussing evidence), 25–26 (same). Further 

relevant evidence is reflected in the above chart, based on Exhibits 55 and 56 to the Motion, which 

shows the inverse relationship between the RN Program’s graduation rate and HCI’s NCLEX 

passage rates.3 In short, the more students failed to graduate, the higher HCI’s NCLEX passage 

rate climbed—as Defendants intended. See, e.g., ECF No. 203-2 at 251 (Plaintiffs’ Exhibit 26) 

(July 2021 Executive Committee notes reading, “What else can we do to tighten the grad exit 

process to better ensure text success? Do we change exams or reduce repeats? Concerns: Student 

2 For example, data made available in interrogatory responses showed that in the five 

semesters preceding implementation of the 50% Rule, on average, all but 28% of enrollees in the 

Nursing 1 course at HCI-WPB advanced to Nursing 2 at the end of the semester. After

implementation of the 50% Rule, 58% of enrollees in Nursing 1 at HCI-WPB failed to advance to 

Nursing 2 at the end of the semester. Similarly, in the three semesters preceding the change in exit 

exam policy, on average, only 18% of Capstone enrollees failed to graduate after completing the 

course. In stark contrast, 65% of Capstone enrollees failed to graduate during the first three 

semesters after the exit exam policy changed. ECF No. 203-2 at 910–24 (Plaintiffs’ Exhibit 53); 

id. at 939–41 (Plaintiffs’ Exhibit 55); id. at 958–59 (Plaintiffs’ Exhibit 56).

3 This analysis is for HCI-WPB. Data from HCI-FTL shows a similar inverse relationship 

and timing of unlawful practices.

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unrest? FBON problems? Lawsuits?”); id. at 927 (Plaintiffs’ Exhibit 54) (May 2022 

communication from HCI’s CEO stating “Attrition has impacted the WPB campus mainly because 

of the 50% structure”).

The Revised R&R’s focus on downstream harm was erroneous—the point of sale is the 

locus of Plaintiffs’ and class members’ injury. See Nuwer v. FCA US LLC, 552 F. Supp. 3d 1344, 

1354 (S.D. Fla. 2021) (“The injury alleged in this case is not the deployment of the AHR; it is the 

purchase of a vehicle with a latent defect. The alleged injury occurred at the time of purchase.”); 

see also id. (collecting cases). 

b. The Revised R&R Ignores the Common Link Between Causation and 

Damages in Count 1. 

FDUTPA’s causation requirement is satisfied by “demonstrat[ing] a causal link between 

the deceptive practice at issue and the damages suffered.” ECF No. 154 at 35–36 (citing Stewart 

Agency, Inc. v. Arrigo Enters., Inc., 266 So.3d 207, 213 (Fla. 4th DCA 2019)). When viewed from 

the point of sale—not from the application of unfair policies to any particular class member—there 

is a clear, common, causal link between the injury (delivery of the lemon RN Program) and the 

damages sought (the cost of the lemon RN Program). Accord ECF No. 154 at 41 (discussing

causation as to Count 3). 

Contrary to the Revised R&R’s contention, individual issues of injury and causation do not 

predominate, and Carriuolo v. Gen. Motors Co., 823 F.3d 977 (11th Cir. 2016), provides no basis 

to deny certification. In that case, Plaintiffs sought damages “measured by the difference between 

the market value of a 2014 Cadillac CTS with perfect safety ratings and the market value of a 2014 

Cadillac CTS with no safety ratings.” ECF No. 154 at 38 (quotations omitted). Carriulo supports 

Plaintiffs’ theory of class certification because Plaintiffs do in fact seek “to recover a uniform set 

of damages with a direct causal link between the false [representations and deceptive omissions]

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and the exact damages claimed.” ECF No. 254 at 38. The scope of the falsity, and thus the measure 

of damages, are just larger here than in Carriulo. There are many reasons that a consumer might 

purchase a Cadillac CTS. Some may care about the safety ratings, others may not. But Plaintiffs 

and class members had no reason to enroll in the RN Program but for its misrepresented benefit—

the real possibility of a nursing degree and a shot at nursing licensure. The full-damages model 

that they propose is thus appropriate under FDUTPA. See Collins v. Quincy Bioscience, LLC, No. 

19-CV-22864, 2020 WL 3268340, at *29 (S.D. Fla. Mar. 19, 2020) (“The full-refund damages 

model is . . . appropriate because consumers have no reason to purchase [the product at issue] 

except for its misrepresented benefit”).

Just like in Carriulo, Plaintiffs propose to measure damages by the difference between the 

market value of an RN Program with grading and advancement criteria that were designed to help 

students become nurses and an RN Program with requirements that were designed to prevent them 

from doing so (i.e., a lemon RN Program). It is as if they were sold a Cadillac that was falsely 

labelled as having an engine and brakes. Whether or not the Court agrees with Plaintiffs that the 

lemon RN Program was worthless, this is necessarily a question common to the class—fair market 

value is objective.

4 See Value, Black’s Law Dictionary (12th ed. 2024) (“fair market value” is 

“[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and 

in an arm’s-length transaction; the point at which supply and demand intersect”); see also GreenCooper v. Brinker Int'l, Inc., 73 F.4th 883, 893 (11th Cir. 2023) (“At the class certification stage, 

4 Plaintiffs have retained a nursing education expert who will testify, at the merits stage, 

about the value of the RN Program in the state it was delivered. Because of the amendment of the 

scheduling order and the stay of discovery, her report was not completed in time to be submitted 

with the Motion.

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all that the named plaintiffs had to prove was that a reliable damages methodology existed, not the 

actual damages plaintiffs sustained.”). 

Finally, if the Court were to adopt the Revised R&R’s erroneous standard and require proof 

that each class member failed to graduate because of Defendants’ practices, it could simply limit 

the class to individuals who would have advanced from one course to the next but for the 50% 

Rule and individuals who would have graduated but for the change in exit examination and/or 

retake policy. See A&M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 321 F.R.D. 688, 696 

(S.D. Fla. 2017) (“[T]he Court is empowered to amend an over-inclusive class definition.”).

Membership in this refined class is capable of determination: Defendants’ records show which 

students were at an 80% overall in a course before they took the end-of-semester exam to which 

the 50% Rule was applied and which students failed each course each semester, and records 

subpoenaed from ATI show these individuals’ performance on the end-of-semester exams, 

including who achieved the required 80% overall score but who received less than 50% in any 

particular category; likewise, Defendants’ records show student performance on the final exit 

examination and the lack of retakes on that exam. Although such analysis may be time-consuming, 

it would satisfy ascertainability. See Rensel v. Centra Tech, Inc., 2 F.4th 1359, 1361 (11th Cir. 

2021) (“[T]o meet [Rule 23’s] ascertainability requirement, the party seeking certification need 

not establish its ability to identify class members in a convenient or administratively feasible 

manner.”). 

2. The Definition of the Class Under Count 2 (FDUTPA as to educational services 

provided) Is Not Overly Broad and Is Ascertainable. 

In Count 2, Plaintiffs allege that Defendants “made misrepresentations and/or failed to 

disclose material facts regarding the terms and conditions of the education they were providing, 

including the quality and qualifications of instructors” and “advertised HCI’s RN Program as 

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offering clinical experience required by F.S. § 464.019(1) when such experience was not 

available.” ECF No. 93 ¶ 499(a), (c). In the Motion, they explain that Defendants misrepresented 

in college catalogs and on HCI’s website that the RN Program “fully complied” with relevant 

Florida regulations. ECF No. 203 at 6. Yet the Revised R&R inexplicably statesthat Count 2 “relies 

upon non-specific misrepresentations, communicated via the school’s website and other means, 

regarding a series of subject matters,” ECF No. 154 at 18, and concludes that the proposed class 

is overbroad because it “will necessarily include students who never encountered the 

misrepresentations at issue” and unascertainable because “it would be extremely difficult to 

ascertain which class members encountered the various misrepresentations at issue,” id. at 18–19. 

This conclusion is not only based on a misapprehension of Plaintiffs’ allegations, but also

on a misunderstanding of the law: it effectively mandates a showing of individual reliance. 

Illustratively, in Nuwer v. FCA United States LLC, No. 20-cv-60432, 2024 U.S. Dist. LEXIS 

128767, at *9–10 (S.D. Fla. July 22, 2024), the defendant argued that the individual plaintiff could 

not establish causation because “he had not reviewed any advertisements or brochures before he 

purchased his vehicle; indeed, he knew the vehicle he wanted before he went to the dealership,” 

and that a previously-certified class should be decertified “because the element of causation 

requires individual inquiries.”5 The district court rejected this argument, recognizing that a 

defendant’s attempt to require class-wide proof of causation in a FDUPTA class action was “a 

thinly veiled attempt to incorporate a reliance element into FDUTPA.” Id. at 10. It held that “it was 

not necessary under FDUTPA for [the p]laintiff or any class member to have reviewed 

5 In Nuwer, a class was certified on January 5, 2022; after the case went to a jury in January 

2024, the defendant raised five grounds for judgment as a matter of law, including that “no 

reasonable jury could find class-wide causation.” 2024 U.S. Dist. LEXIS 128767, at *1. This order, 

which denied that motion, is not yet available on Westlaw.

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advertisements or brochures;” it was enough that the “[p]laintiff testified that he would not have 

purchased his . . . vehicle if the . . . defect had been disclosed.” Id.

Indeed, FDUTPA’s only exposure requirement is that the deception was available to class 

members, such that they could have been exposed to disclosure of the alleged defect. See, e.g., 

Cardenas v. Toyota Motor Corp., No. 18-CV-22798-CIV-FAM, 2021 WL 6926418, at *13 (S.D. 

Fla. Aug. 12, 2021) (narrowing class definition to include only individuals who purchased their 

vehicle from an authorized dealership would raise a permissible inference of common exposure, 

and “common evidence of causation may support the inference that class members would have 

been aware of a disclosure, if made, regarding the alleged . . . defect”); Maor v. Dollar Thrifty 

Auto. Grp., Inc., No. 15-cv-22959, 2018 WL 4698512, at *6 (S.D. Fla. Sept. 30, 2018) (“While 

individual reliance is not required, the purported deception must be available to a reasonably 

objective consumer at the time he/she entered into the transaction.”); Justice v. Rheem Mfg. Co.,

318 F.R.D. 687, 697 (S.D. Fla. 2016) (finding that “[t]he issue of the causation element of FDUPTA 

appears to involve individual inquiry” where there was no reasonable presumption that entire class 

would have been exposed to disclosure of defect). 6

As in Nuwer, Plaintiffs allege a deceptive omission, i.e., the failure to disclose a material 

defect: Defendants “made misrepresentations and/or failed to disclose material facts regarding the 

terms and conditions of the education they were providing.”7 ECF No. 93 ¶ 499. Thus, the most 

6 The Revised R&R’s reliance on Justice for its contrary conclusion, ECF No. 254 at 40, is 

misplaced: that case focused on the likelihood that class members could have been exposure to a 

disclosure of the alleged defect, not on whether class members had been exposed to 

misrepresentations. 318 F.R.D. at 697 (“Defendant has produced evidence that ‘many consumers 

do not review central AC system product brochures or the websites of AC manufacturers, and thus 

would be unlikely to be exposed to a disclosure of an alleged defect.’”).

7 Notably, Plaintiffs’ Counts 1, 2, and 6 of the SAC are styled as “Violation of the Florida 

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that FDUTPA requires is that class members would have been exposed to a disclosure of the fact 

that the RN Program failed to meet state standards, had it been made. Plaintiffs have presented 

evidence that statements regarding compliance with those standards were made in college catalogs 

that were universally distributed, see ECF No. 242, Plaintiffs’ Notice of Filing of Supplemental 

Information Requested by the Court in the July 30 Hearing, at ¶ 3, and have argued that the Court 

can reasonably infer common exposure, see ECF No. 238, Plaintiffs’ Notice of Filing of Plaintiffs’ 

Chart Clarifying the Application of Rule 23(b) to Each Count in the Operative Complaint, at 3. 

That is all they need to show. See Nuwer, 2024 U.S. Dist. LEXIS 128767, at *10; Cardenas, 2021 

WL 6926418, at *13; Justice, 318 F.R.D. at 697. Holding otherwise would be reversible error. 

Cherry v. Dometic Corp., 986 F.3d 1296, 1300 (11th Cir. 2021) (quoting Little v. T-Mobile USA, 

Inc., 691 F.3d 1302, 1305 (11th Cir. 2012)) (“A district court abuses its discretion ‘if it applies an 

incorrect legal standard’ in its analysis of class certification.”).

Because it relied on a misunderstanding of Plaintiffs’ allegations and of the relevant law, 

the Revised R&R’s predominance analysis is limited to the issue of exposure to 

misrepresentations. ECF No. 254 at 40. For the reasons stated in the Motion, common issues 

predominate as to Count 2: whether the statements regarding compliance with relevant state law 

requirements were inaccurate, whether those misrepresentations constitute unfair and deceptive 

trade practice, and damages—the difference between the fair market value of a program that 

Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. Based on Deceptive 

Omissions and Unfair Trade Practices.” ECF No. 93 at 76, 77, 82 (emphasis added). Further, the 

Revised R&R failed to perform an analysis of Defendants’ practices as unfair acts and practices, 

which are not based on misrepresentations but rather on practices that are injurious to consumers.

Matthews v. Am. Honda Motor Co., No. 12-cv-60630, 2012 WL 2520675, at *2–3 (S.D. Fla. June 

6, 2012) (quoting PNR, Inc. v. Beacon Prop. Mgmt., 842 So. 2d 773, 777 (Fla. 2003)).

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complies with those requirements and one that does not—are questions common to the class. See

ECF No. 203 at 25–26, 28–29. 

3. Individual Issues Do Not Predominate as to Count 4 (breach of contract as to grading 

and advancement)

In Count 4, Plaintiffs allege that “Defendants HCI and FEI breached their contracts with 

Plaintiffs and Class Members by making arbitrary and capricious changes to testing and grading 

requirements.” ECF No. 93 ¶ 516. Referring to its flawed analysis of Count 1, the Revised R&R 

concludes that individual issues would predominate because “class members must show a causal 

link between the grading changes at issue and the exact damages suffered,” and some class 

members may not be able to prove that the changes caused their damages. ECF No. 254 at 43. As 

explained supra Part 1.a, this analysis misunderstands Plaintiffs’ allegation. Defendants promised 

an RN Program whereby class members could achieve “graduation upon completion of specific 

requirements,” ECF No. 93 ¶ 518; when grading requirements were changed to preclude class 

members from graduating, the contract was breached. Whether Defendants’ breach was material, 

thus entitling class members to restitution, is a merits question common to the class. See Porcell v. 

Lincoln Wood Prod., Inc., 713 F. Supp. 2d 1305, 1310 (D.N.M. 2010) (materiality of breach is 

common question). 

If, however, the Court agrees with the Revised R&R that class members must establish that 

they would have advanced and/or graduated but for the changes, Plaintiffs ask the Court to exercise 

its discretion and limit the class to individuals who would have advanced from one course to the 

next but for the 50% Rule and individuals who would have graduated but for the change in exit 

examination and/or retake policy, information which is readily available. See A&M Gerber 

Chiropractic LLC, 321 F.R.D. at 696; supra Part 1.b. 

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4. Individual Issues Do Not Predominate as to Count 6 (FDUTPA as to “new” program)

In Count 6, Plaintiffs allege that Defendants made misrepresentations and deceptive 

omissions about, and conducted unfair practices related to, the “new” RN Program at HCI’s West 

Palm Beach campus (“HCI-WPB”). ECF No. 93 ¶ 532. The Motion explains that “Defendants 

made systemic misrepresentations and omissions about the history of the RN Program at HCIWPB and students’ performance in the program.” ECF No. 203 at 26. As this Court observed in 

its Order on Defendants’ Motion to Dismiss the First Amended Complaint, “[p]rospective students 

acting rationally with access to . . . information” regarding “HCI’s lack of programmatic 

accreditation, probationary status, and low NCLEX exam passage rates . . . would likely refrain 

from enrolling in such a school.” ECF No. 84 (“Order on Defendants’ MTD”), at 28. 

The Revised R&R again erroneously concludes that proving causation would “require 

individual, student-by-student proof as to the reasons various class members failed to pass classes 

and/or advance through the curriculum.” ECF No. 254 at 45. As explained supra Part 1.a, this 

misunderstands the injury: Plaintiffs were harmed when they were delivered a program that was 

inferior to what was promised. “The alleged injury occurred at the time of purchase.” Nuwer, 552 

F. Supp. 3d at 1354. 

That the Revised R&R applies the erroneous injury analysis here, where the allegations 

concern HCI-WPB’s poor performance and Defendants’ efforts to deceive class members about it

and where the allegations have nothing to do with the new grading and advancement requirements, 

underscores its repeated error. Where the allegations concerned the new requirements, the Revised 

R&R’s impulse to examine the effects of those requirements was perhaps understandable, if 

ultimately mistaken. But to require Plaintiffs to prove that they could have advanced through the 

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RN Program to establish that the program was deceptively marketed on other grounds is entirely 

untenable. 

Plaintiffs allege that, given its true graduate NCLEX performance and approval history, the

RN Program was worthless. If the Court disagrees, the question of the fair market value of the RN 

Program as it was described to class members and as it was delivered to them is still a question 

common to the class. See supra Part 1.b. 

5. Individual Issues Do Not Predominate as to Counts 9 (ECOA) and10 (Title VI)

Counts 9 and 10 allege that Defendant HCI engaged in reverse redlining when it targeted

Black students with its predatory product. ECF No. 93 ¶ 554 (Count 9), ¶ 569 (Count 10). The 

Motion explains that “Plaintiffs allege discrimination with respect to multiple aspects of a credit 

transaction: predatory RIC terms, changes to the cost of the product and the amount of credit 

needed to pay for it, the likely ability of students to repay the credit, the consequences of 

nonpayment, and the predatory nature of the product itself—a worthless education.” ECF No. 203 

at 32. 

The Revised R&R does not address “every aspect” of Plaintiffs’ dealings with HCI in 

relation to credit transactions. See Consumer Financial Protection Bureau, Statement of Interest in 

Support of Plaintiffs at 8, ECF No. 58-1 (“SOI”). It does not even address the most obviously 

predatory aspect of the credit transaction between Defendants and Plaintiffs—the illegal retail 

installment contracts (“RICs”)—despite granting class certification for a FDUTPA claim based on 

them. These RICs are in fact a “uniform lending contract or lending practice that applied equally 

to all class members,” ECF No. 254 at 49. And the predatory nature of the product is highlighted 

by the fact that Defendants acknowledge that class members will not pay their RICs once they 

leave the school. See ECF No. 203 at 14 (citing evidence). 

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Instead, the Revised R&R concludes that “the ‘product’ at issue consisted of an educational 

experience that necessarily varied from one student to another, affecting different students in 

different ways[,] . . . create[ing] individual issues as to causation, damages, and whether the 

educational experience can be deemed ‘predatory’ or ‘illusory.’” ECF No. 254 at 49. As this Court 

recognized in its Order on Defendants’ MTD, this is not what Plaintiffs allege. See ECF No. 84 at 

34 (“Plaintiffs allege that HCI misrepresented program requirements––and consequentially, the 

length, and therefore the cost of the program––to convince students to take out credit to pay tuition 

for the nursing program.”); see also SOI at 10 (“HCI engaged in a bait and switch—enticing 

Plaintiffs to enter into credit transactions for federal and private loans based on false 

representations about the amount of credit needed.”). Regardless, ECOA does not look to effect—

it looks to the nature of the product targeted to the protected class. See, e.g., Carroll v. Walden 

Univ., LLC, 650 F. Supp. 3d 342, 362 (D. Md. 2022) (on motion to dismiss, finding that “by 

misleading students and the public about the nature of the [Doctor of Business Administration] 

program and the resulting costs[,] . . . when Walden markets the DBA, it is marketing a predatory 

product”); McGlawn v. Pennsylvania Hum. Rels. Comm’n, 891 A.2d 757, 770–72 (Pa. Commw. 

Ct. 2006) (finding that loans were “predatory and unfair” under ECOA because of their terms, 

including pre-payment penalties and high interest rates, without analyzing effect on plaintiffs, such 

as ability to pay).

Further, the Revised R&R erroneously states that an ECOA plaintiff must show actual 

damages. ECF No. 254 at 48 (citing 15 U.S.C. § 1691e(a)). Statutory punitive damages are 

available “regardless of proof of actual damages” in cases of wanton or reckless conduct on the 

part of a creditor. Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 148 (5th Cir. 1983). 

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Finally, to state a claim for reverse redlining under Title VI, a plaintiff may allege that a 

covered entity deliberately targeted a protected class for a fraudulent scheme. Brook v. Sistema 

Universitario Ana G. Mendez, Inc., No. 17-cv-171, 2017 WL 1743500, at *3 (M.D. Fla. May 4, 

2017). Plaintiffs have alleged such a scheme; its effects on individual class members cannot 

predominate. 

6. Class Treatment is Inferior to other Methods of Adjudicating Plaintiffs’ 

Claims. 

In deciding that class treatment was inferior to individual actions as to Counts 1, 2, 4, 6, 9, 

and 10, the Revised R&R fails to meaningfully engage in a superiority analysis. Instead, it merely 

states that “for reasons previously discussed” it “finds class treatment inferior to other available 

methods” as to all but Counts 3 and 8. ECF No. 254 at 51. But the superiority requirement of Rule 

23(b)(3) requires “two forms of comparison”: (1) “would a class action create more manageability 

problems than its alternatives?” and (2) “how do the manageability concerns compare with the other 

advantages or disadvantages of a class action?” Cherry, 986 F.3d at 1304–05. Both comparisons 

mandate a finding that class treatment would be superior as to the aforementioned counts—even if 

the individual issues wrongly identified by the Revised R&R did, in fact, predominate. 

As to the first form of comparison, a class action with some individualized issues of causation 

would be more manageable than hundreds of individual actions. Klay v. Humana, Inc., 382 F.3d 1241, 

1273 (11th Cir. 2004). (“[W]e are not assessing whether this class action will create significant 

management problems, but instead determining whether it will create relatively more management 

problems than any of the alternatives (including, most notably, 600,000 separate lawsuits by the class 

members).”); see also Rivera v. Equifax Info. Servs., LLC, 341 F.R.D. 328, 346 (N.D. Ga. 2022) 

(rejecting the defendant’s argument, and magistrate judge’s conclusion, that “the administrative 

difficulties of ascertaining whether all of the proposed class members’ injuries were traceable to [the 

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defendant’s actions] is untenable”). Rather than including thousands or millions of individuals, the 

class sizes in this case include, at most, 1,250 individuals—individuals for which Plaintiffs have 

already received, reviewed, and analyzed a variety of centralized data. Additional data needed to 

analyze class members’ claims resides with Defendants. As described supra Part 1.D, the Court could 

easily apply a simple formula to this data8 to make the causation determination created by the Revised

R&R, without requiring individual testimony or analysis. By contrast, individual actions would 

require repeated litigation of the same issues; each plaintiff would seek and present the same evidence 

to establish that Defendants committed objectively deceptive and unfair acts, then present the same 

dataset to show that they meet the erroneous causation standard.

Further, the claims at issue in this case are complex and discovery on them will require

resources not typically available in individual actions. For example, an expert witness will be needed 

to opine on whether the changes to grading and advancement requirements were arbitrary and 

capricious and whether the qualification of instructors and clinical offerings satisfied state standards. 

Expert witnesses may also be required to opine on Defendants’ marketing strategies and to conduct a 

regression analysis pertaining to Plaintiffs’ disparate impact claims under ECOA. These are not the 

kind of litigation techniques required in most individual actions, as the cost of litigation would quickly 

outweigh the recovery sought by each class member.

As to the second form of comparison, the benefits of class treatment in this case overcome 

any minor manageability concerns. One of the primary purposes of Rule 23 is to “vindicate the rights 

8 For determining the effect of the 50% Rule, Plaintiffs have already begun the process of 

determining which students achieved the required overall score of 80% but who achieved less than 

50% in any one category. Comparing this list of students against the list of students who failed 

each course each semester will identify those students who failed as a direct result of the 50% 

Rule. For determining the effect of the final exit exam, the analysis would be even less complex: 

any student who took the exit examination had necessarily completed all other graduation 

requirements.

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of groups of people who individually would be without effective strength to bring their opponents 

into court at all.” Amchem Prods., Inc., 521 U.S. at 617 (internal quotations and citation omitted). The 

class members here are working people burdened with debt; they are unlikely to have the time or 

resources to bring individual actions. Indeed, out of over a thousand members of the proposed class, 

none has filed a separate action. See Walco Invs., Inc. v. Thenen, 168 F.R.D. 315, 337 (S.D. Fla. 1996).

Finally, for the FDUTPA and targeting claims, analysis of the individual causation issues 

wrongly identified by the Revised R&R would necessarily follow a class-wide determination of core 

liability: that Defendants committed objectively deceptive and unfair acts, and that Defendants 

engaged in racial targeting. The individual issues are really damages issues. In the Revised R&R’s 

view, a class member who was blocked from advancing through the RN Program by the 50% Rule or 

from graduating by the new exit exam policy may be entitled to a full tuition refund, while a class 

member who dropped out for personal reasons is entitled to nothing. See ECF No. 254 at 38–39. This 

is wrong—both class members were injured when they received a product materially different from 

and inferior to what they were promised, and both are entitled to the difference in the products’ fair 

market value. But were it right, it would mean that bifurcation into liability and damages stages would 

be a more appropriate solution. See Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th 

Cir. 2003) (“[T]he presence of individualized damages issues does not prevent a finding that the 

common issues in the case predominate.”); Navelski v. Int’l Paper Co., 244 F. Supp. 3d 1275, 1309 

(N.D. Fla. 2017) (where “common issues of law and fact as to causation and liability predominate 

over the issues requiring individualized proof, . . . the need to bifurcate and allow individual trials as 

to damages does not preclude certification of a class for these common issues”).

“Rule 23(b)(3) does not require a plaintiff seeking class certification to prove that each 

element of her claim is susceptible to classwide proof.” Sihler, 2024 WL 3771717, at *8 (cleaned 

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up) (quoting Amgen Inc., 568 U.S. at 469). And while class certification requires consideration of 

the need for individual proof, “this exercise is not ‘bean counting’ – the relative importance of the 

questions matter too.” Id. (internal quotation omitted). Here, the question is whether Rule 23 favors 

using judicial resources to once and for all resolve the claims of hundreds of consumers wronged by 

the same defendants, over the same period of time, in substantially the same way, or whether Rule 23 

favors requiring each putative class member to find individual counsel, file their own action, engage 

in the same discovery disputes that have plagued this litigation, and consume tremendous judicial 

resources through motion briefing and trial. As demonstrated herein and in the Motion, Rule 23 must 

favor the former.

CONCLUSION

For the foregoing reasons, the Court should decline to adopt the Revised R&R’s 

predominance analysis as to Counts 1, 2, 4, 6, 9, and 10 and its overbreadth and ascertainability 

analysis as to Count 2 and should grant class certification as to each of those counts.

Dated: September 4, 2024 

 Respectfully submitted,

/s/ Jennifer Thelusma

JENNIFER THELUSMA

Florida Bar No. 1019776 

jthelusma@ppsl.org 

REBECCA EISENBREY (pro hac vice) 

reisenbrey@ppsl.org 

VICTORIA ROYTENBERG (pro hac vice) 

vroytenberg@ppsl.org 

Project on Predatory Student Lending

769 Centre Street, Suite 166 

Jamaica Plain, MA 02130 

(617) 322-2843 

NICOLE MAYER 

Florida Bar No. 012035 

Nicole@MayerLawFlorida.com 

Case 9:22-cv-81883-RAR Document 258 Entered on FLSD Docket 09/04/2024 Page 18 of 19
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Mayer Law

171 Dommerich Drive

Maitland, Florida 32751

(352) 494-3657

Attorneys for Plaintiffs

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