UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ERIC GREATHOUSE, ET AL.,

Plaintiffs,

v. No. 4:22-CV-0686-P

CAPITAL PLUS FINANCIAL,

LLC, ET AL.,

Defendants.

OPINION & ORDER

Before the Court is Plaintiffs’ Motion for Class Certification. ECF No. 

67. For the reasons stated below, the motion is DENIED.

INTRODUCTION

Class actions exist for the “promotion of efficiency and economy of 

litigation.” Crown v. Parker, 462 U.S. 345, 349 (1983). So even when 

multiple people are wronged by the same party, they must prove that

litigating their claims via class action will serve these two interests. But

when differing factual scenarios exist between all Plaintiffs, these two 

interests are frustrated. Thus, common answers are just as important 

as common questions when dealing with a nationwide class. 

Plaintiffs in this case appear to have legitimate grievances. But the 

questions common to all potential class members do not give the same 

answers—making the potential adjudication of this class inefficient and 

uneconomic. For this reason, the Court DENIES the motion. 

FACTUAL & PROCEDURAL BACKGROUND

In 2020, Congress passed the CARES Act, which provided for the 

Payroll Protection Program (“PPP”)—a loan assistance program for 

businesses financially burdened by local, state, and federal restrictions. 

This act required a comprehensive plan to disperse over $800 billion 

dollars to countless qualified businesses in a short timeframe. As a 

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result, the government worked with private lenders to streamline the 

approval process. 

Private lenders were tasked with processing PPP loan applications 

and submitting completed applications to the SBA for processing. The 

SBA would then approve the applications by assigning an SBA number. 

Once an SBA number was assigned, the lenders were required to

disburse the funds within ten days of approval. If paperwork associated 

with the process was incomplete, lenders were also under a duty—in this 

narrow situation—to cancel the SBA number and loan process within 20 

calendar days of approval. Private lenders were incentivized to process 

loans by government fees paid out upon completion of the approval 

process. To further assist lenders with the approval process, the Federal 

Reserve instituted the Paycheck Protection Program Liquidity Facility 

(“PPPFL”), which advanced funds through non-recourse loans to lenders 

who could provide proof of approvals and disbursements of PPP loans as 

collateral. 

In 2021, Defendant Capital Plus Financial LLC (“Capital Plus”)—a 

wholly owned subsidiary of Defendant Crossroads Inc.—began 

approving PPP loans. And in less than five months, Capital Plus 

approved an astonishing 472,036 loans. The volume of loans approved 

was so numerous that they became the second largest lender of PPP 

loans in 2021—outperforming nearly every recognizable financial 

institution in the country. To aid in this overwhelming process, Capital 

Plus enlisted help from outside providers to process the hundreds of 

thousands of applications because of capacity constraints. 

Capital Plus and Crossroads made an astonishing $970.5 million in 

revenue in mere months by capitalizing on PPP approval fees. On top of 

this, Capital Plus—due to their massive quantity of “approved” loans—

drew down nearly $7.5 billion in funding from the PPPFL program. 

After the PPP window closed, Crossroads paid out a $238.9 million 

dividend to shareholders. Most of the dividend money went to insiders 

in the company like Defendants Alpert and Donnelly who together 

owned 62.8% of outstanding shares. 

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But while the income of Capital Plus and Crossroads soared, 

complaints from individuals approved for loans did as well. Plaintiffs 

allege that—although they received SBA numbers—funds were never 

disbursed to them. And because of this failure to fund, Plaintiffs could 

not go to another lender as they were restricted from doing so once a 

valid SBA number was assigned to them. Plaintiffs also allege that

because an SBA number was assigned to them, they are still under the 

legal obligation to pay back money that they never received. While 

Plaintiffs were approved and suffered similar injuries, their situations 

after approval differ. Some loans were denied and canceled because of 

inconsistent paperwork. Some loans were disbursed but rejected by 

banks for various reasons. And some were disbursed but mysteriously 

never arrived. 

Because of the alleged faults of Crossroads, Capital Plus, and its 

directors, a group of Plaintiffs bring this suit under the Class Action 

Fairness Act seeking redress of their injuries under three claims: (1) 

Breach of Contract; (2) The California Unfair Competition Law (“UCL); 

and (3) The North Carolina Unfair and Deceptive Trade Practices Act 

(“NCUDTPA”). 

Plaintiffs now move for class certification. 

B. Proposed Classes

1. Nationwide Class

Plaintiff Eric Greathouse is a citizen of Arkansas who owns an 

insurance inspection business. Plaintiff Tiffany Sumrall is a citizen of 

Texas who owns a landscaping business. Plaintiff Cori Pericho is a 

citizen of Hawaii who owns a messenger and delivery service. Plaintiff 

John Pinkney is a citizen of Texas who owns a cable communications 

business. Plaintiff Alicia Mena is a citizen of Arizona who owns a 

housecleaning business. These Plaintiffs were assigned SBA numbers 

by Capital Plus, but their loans remain unfunded. As a result, they 

collectively seek to represent a nationwide class and bring a claim for 

breach of contract. 

Plaintiffs seek certification of this class under the following criteria:

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All persons and entities in the United States and its

territories Guam, Northern Mariana Islands, Puerto Rico,

and U.S. Virgin Islands who, in 2021, applied for PPP loans 

with defendant CPF as the lender for whom the SBA 

provided an SBA loan number, and who executed and 

submitted their Loan Documents but did not receive the 

PPP loan proceeds.

ECF No. 68 at 2. 

2. North Carolina Subclass

Plaintiff Barbara Myles is a citizen of North Carolina who owns a 

business that assists independent artists. Myles was assigned an SBA 

number by Capital Plus, but her loan remains unfunded. Myles seeks to 

represent a North Carolina subclass and brings a claim under the 

NCUDTPA together with a breach-of-contract claim. 

Plaintiffs seek certification of this subclass under the following 

criteria:

All persons and entities in North Carolina who, in 2021, 

applied for PPP loans with defendant CPF as the lender for

whom the SBA provided an SBA loan number, and who 

executed and submitted their Loan Documents but did not 

receive the PPP loan proceeds.

ECF No. 68 at 2. 

3. California Subclass

Lastly, Plaintiff Ernesto Covarrubias is a citizen of California who 

owns an auto repair business. Plaintiff Joshua Smith is also a citizen of 

California who owns and operates a delivery and human resource and 

consulting business. These Plaintiffs were also assigned SBA numbers 

by Capital Plus, and their loans were never funded. Covarrubias and 

Smith seek to represent a California subclass and bring a claim under 

the UCL together with a breach-of-contract claim. 

Plaintiffs seek certification of this subclass under the following 

criteria:

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All persons and entities in California who, in 2021, applied 

for PPP loans with defendant CPF as the lender for whom 

the SBA provided an SBA loan number, and who executed 

and submitted their Loan Documents but did not receive 

the PPP loan proceeds.

ECF No. 68 at 2. 

LEGAL STANDARD

A. Class Certification

Class actions are “an exception to the usual rule that litigation is 

conducted by and on behalf of the individual named parties only.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citation omitted). 

Federal Rule of Civil Procedure 23 controls whether this limited 

exception applies. A party seeking class certification thus “bear[s] the 

burden of proof to establish that the proposed class satisfies the 

requirements of Rule 23.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 

837 (5th Cir. 2012). In doing this, a plaintiff “must affirmatively 

demonstrate his compliance with the Rule—that is, he must be prepared 

to prove that there are in fact sufficiently numerous parties, common 

questions of law or fact, and so on.” Chavez v. Plan Benefit Servs., Inc., 

957 F.3d 542, 545–46 (5th Cir. 2020) (internal quotations omitted) 

(emphasis in original).

Because of the extraordinary nature of class actions, Rule 23 requires 

a “rigorous analysis.” Id. Rule 23 thus requires courts “to probe behind 

the pleadings before coming to rest on the certification question.” Dukes, 

564 U.S. at 350–51. As a result, the Court’s mandated duty is to: 

“understand the claims, defenses, relevant facts, and applicable 

substantive law to make a meaningful determination. If some of the 

determinations cannot be made without a look at the facts, then the 

judge must undertake that investigation.” Chavez, 957 F.3d at 546.

After this analysis, a court must “detail with specificity its reasons”

behind its conclusions, “explain and apply the substantive law governing 

the plaintiffs’ claims to the relevant facts and defenses,” and 

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“articulat[e] why the issues are [or are not] fit for class wide resolution.”

Id. This is not a rubber-stamp procedure.

This process exists because “certification can coerce a defendant into 

settling on highly disadvantageous terms regardless of the merits of the 

suit.” Id. And further, after certifying a class, any judgment binds absent 

class members forever. See Richardson v. Wells Fargo Bank, N.A., 839 

F.3d 442, 454 (5th Cir. 2016). Thus, the “existence of a class 

fundamentally alters the rights of present and absent members.”

Chavez, 957 F.3d at 547. 

ANALYSIS

A. Ascertainably

Defendants argue that the proposed classes are not ascertainable 

because (1) their definitions create a “fail-safe” class and (2) the 

definitions are too indefinite. The Court disagrees. 

To maintain a class action “the class sought to be represented must 

be adequately defined and clearly ascertainable.” DeBremaecker v. 

Short, 433 F.2d 733, 734 (5th Cir. 1970). A “fail-safe” class occurs where 

“membership can only be ascertained by a determination of the merits 

of the case because the class is defined in terms of the ultimate question 

of liability.” In re Rodriguez, 695 F.3d 360, 369–70 (5th Cir. 2012) 

(internal citations omitted). In other words, “the class definition is 

framed as a legal conclusion.” Id. Despite the unique nature of these 

classes, the Fifth Circuit has explicitly rejected a rule against certifying 

fail-safe classes. Id. Thus, a fail-safe class may have qualifications that 

go “to both questions of liability and damages, but [may not be] so vague 

that potential class members are unascertainable.” Simms v. Jones, 296 

F.R.D. 485, 507 (N.D. Tex. 2013) (Lynn, J.). 

Plaintiffs define their potential class as follows: “All persons ... who, 

in 2021, applied for PPP loans with defendant CPF as the lender and for 

whom the SBA provided an SBA loan number, and who executed and 

submitted their Loan Documents but did not receive the PPP loan 

proceeds.” ECF No. 68 at 2. Aside from dates and entities, the class boils 

down to these qualifiers: (1) whether an SBA number was issued, and 

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(2) whether funds were not disbursed. For starters, it is unclear if this 

class calls for a legal conclusion on liability. As discussed later, the 

failure to disburse PPP loan proceeds itself, under the contractual and 

statutory obligations present, does not always put liability in play. And 

next, even if the class was strictly defined by an issue of liability—which 

is not fatal to begin with—it is a cut and dry class that is easily 

ascertainable based on loan data kept by Defendants. The two needed 

characteristics—an SBA number and a failure to receive loan proceeds—

are easily identifiable with available data. By this definition and with 

the extensive records kept by Defendants, it is easy to define who is in 

and who is out of the class without resorting to a scavenger hunt. 

The class is thus ascertainable. The Court next addresses the Rule 

23(a) requirements. 

B. Rule 23(a) Requirements 

Rule 23(a) prescribes four prerequisites for class certification. The 

four requirements are (1) that the class is so numerous that joinder of 

all members is impracticable (“numerosity”), (2) that there are questions 

of law or fact common to the class (“commonality”), (3) that the claims 

and defenses of the parties are typical of the claims or defenses of the 

class (“typicality”); and (4) that the representative parties will fairly and 

adequately protect the interest of the class (“adequacy of 

representation”). FED. R. CIV. P. 23(a); see also Angell v. GEICO 

Advantage Ins. Co., 67 F.4th 727, 736 (5th Cir. 2023). 

The Court concludes that Plaintiffs do not meet the first three 

requirements. 

1. Numerosity is not met.

Rule 23(a)(1) requires that “the class is so numerous that joinder of 

all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To meet this 

standard, a plaintiff “must ordinarily demonstrate some evidence or 

reasonable estimate of the number of purported class 

members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 

1038 (5th Cir. 1981).

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Plaintiffs have failed to meet this standard. In their motion, 

Plaintiffs note that at the time of the filing, they could not give an 

estimate as to the class size. As a result, Plaintiffs stated that they 

intended “to file supplemental submissions concerning numerosity or an 

amended motion for class certification following discovery.” ECF No. 68 

at 15. It has been over seven months since the filing of this motion and 

the Court has not received any further information. And Discovery has 

been available to Plaintiffs during this entire time. See ECF No. 47 

(denying Defendants’ motion to stay discovery). 

As a result of this failure to provide any evidence or reasonable 

estimate on the potential number of class members, numerosity is not 

met. But even if Plaintiffs’ motion satisfied numerosity, it still fails other 

requirements under Rule 23(a).

2. Commonality is not met.

Defendants next assert that Plaintiff’s proposed classes lack 

commonality. The Court agrees. 

Commonality requires “questions of law or fact common to the class.”

FED. R. CIV. P. 23(a)(2). While this seems simple, “[w]hat matters to 

class certification is not the raising of common questions—even in 

droves—but rather, the capacity of a class-wide proceeding to generate 

common answers apt to drive the resolution of the litigation.” Dukes, 564 

U.S. at 350 (emphasis in original). Any competent attorney can raise 

similar questions, but the answer to these questions must essentially 

“resolve an issue that is central to the validity of each one of the 

class member’s claims in one stroke.” Stukenberg, 675 F.3d at 840 

(emphasis in original). This serves the ultimate drive of the class 

action procedure: efficiency. If every individual plaintiff requires his or 

her own in-depth factual analysis, the purpose of the class action is 

defeated—rendering the litigation unruly and inefficient. 

Plaintiffs present eight common questions of law and fact:1

1 Plaintiffs’ briefing initially presented ten common questions; however, two of 

them are inapplicable now as Plaintiffs’ unjust enrichment claims were dismissed. 

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(1) Whether Capital Plus breached all class members’

standard form Loan Documents;

(2) Whether Capital Plus’s failure to fund these PPP loans 

also violated the SBA’s funding rule and CPF’s 

obligations to obtain and use advances it obtained from 

the PPPLF to fund PPP loans, be paid SBA fees only on 

funded loans, and report accurately to the SBA 

regarding PPP loan funding and PPP lending;

(3) Whether each Defendant procured fees for PPP loans 

that CPF did not make;

(4) Whether Crossroads controlled CPF;

(5) Whether Donnelly and Alpert controlled Crossroads 

and Capital Plus.

(6) Whether and, if so, how Plaintiffs and class members 

suffered damages as a result of Defendants’ alleged 

misconduct and the proper measure of relief;

(7) As to the California Subclass, whether Defendants’

misconduct violated the UCL again only in the 

alternative, to the extent that Plaintiffs’ contract 

claims fail to provide adequate relief to the members of 

the California Subclass;

(8) As to the North Carolina Subclass, whether 

Defendants’ misconduct violated the NCUDTPA.

ECF No. 68 at 20. 

These questions boil down to one issue with commonality. The 

central question in this case—as Plaintiff notes—is whether CPF failed 

to fund Plaintiffs’ loans or timely cancel them. ECF No. 75 at 2. The 

breach of contract and state-law claims hinge on this question. If 

Defendants were indeed required to cancel every unfunded loan within 

twenty days, the reasons behind their failure to fund do not matter—

thus resolving Plaintiffs’ claims in one stroke. 

This is Plaintiffs’ exact argument. They claim that if their loans had 

problems, Capital Plus should not have issued an SBA number to begin 

with or should have reported cancelation within twenty calendar days 

in line with the federal regulations. To back this up, Plaintiffs bring 

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affidavits from multiple “experts” on PPP loan funding.2 These experts 

claim that any failure to cancel a loan “for whatever reason” within

twenty days of issuance of an SBA number would “be inconsistent with 

the program ... [and] in violation of the rules.” ECF No. 69 at 82. But 

while this reading of the provision would solve the commonality issue 

here, the Court disagrees with this interpretation.

The provision at issue states that “[l]oans for which funds have not 

been disbursed because a borrower has not submitted required loan 

documentation within 20 calendar days of loan approval shall be 

cancelled by the lender.” 86 FR 3692, 3710 (emphasis added). The plain 

text of this provision only applies to one narrow situation: when a 

borrower fails to submit “required documentation.” Id. The provision

does not address whether cancelation is required if Plaintiffs filled out 

the documentation incorrectly or if Plaintiffs’ bank bounced the funds. 

Indeed, there are many possibilities where loans might remain 

unfunded that fall outside of this narrow statutory provision. And 

looking to the class representatives’ individual cases, this appears to be 

a substantial part of what happened—evidencing the difficulties with 

certifying this class. The Lead Plaintiffs each fall into different 

categories as to why they never received payment—all outside the 

narrow twenty-day-cancelation provision. The Court addresses the 

individual situation of each Lead Plaintiff in turn. 

Pinkney: The only Plaintiff that appears to fall close to the statutory 

cancelation circumstance is Pinkney, whose loans were allegedly 

canceled due to “inconsistent” paperwork and suspected fraud. ECF No. 

74 at 12. Pinkney does not dispute that his loan was canceled but insists 

that it was canceled outside the 20-day window and after the PPP 

program ended—leaving him with no recourse to obtain another loan. 

ECF No. 75 at 4. 

2 The Court is allowed to consider and investigate facts at the class certification

stage. See Chavez, 957 F.3d at 546. The Court is not considering this testimony in an 

“expert” capacity, but only in a way to better understand certain issues of the case

which squarely rest on the SBA lending rules. Determining the correct procedure of 

the PPP loan process is at the core of this motion. Defendants Motion to Strike (ECF 

No. 71) is thus DENIED. 

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But “inconsistent” paperwork is different from incomplete

paperwork. So Pinkney’s situation could still fall outside the statutory

and contractual requirement to cancel the loan within twenty days. And 

the provision at issue does not provide for timelines of cancelation for 

suspected fraud. 

Greathouse, Covarrubias, Sumrall, Myles, Pericho, and Mena:

These Plaintiffs experienced different issue with their loans. Capital 

Plus claims that their funds were disbursed, but that the individuals’

banks returned the funds for different reasons unique to each Plaintiff.3

ECF No. 74 at 9–11. Plaintiffs do not dispute this fact. Defendants claim 

that these Plaintiffs were denied diligence review after bank rejection

because they “failed to submit requested materials or because the 

materials they submitted did not resolve the issues identified.” ECF No. 

73 at 10. Only Plaintiff Sumrall’s loan went through this enhanced 

review process after submitting requested materials.4 Id. 

Again, this situation is not considered in the regulation at issue. The 

PPP program issued no guidance or duty on how to handle bank 

rejections. 

Smith: Smith’s loan was allegedly disbursed by Capital Plus to his 

bank by an ACH payment. ECF No. 74 at 15. Capital Plus alleges that 

the funds were never returned from the bank and are probably in limbo 

somewhere outside of its realm of statutory responsibility. Id. This is yet 

3 Greathouse’s bank rejected the loan listing ACH rejection code R23, “Credit Entry 

Refused by Receiver.” ECF No. 74 at 10. 

Covarrubias’s bank rejected the loan listing ACH rejection code R02, “Account 

Closed.” Id. Myles’s bank rejected the loan listing ACH rejection code R03, “No 

Account/Unable to Locate Account.” Id. 

Pericho’s bank rejected the loan listing ACH rejection code R03, “No 

Account/Unable to Locate Account.” Id. at 11. 

Mena’s bank rejected the loan listing ACH rejection code R17, “File Record Edit 

Criteria” with the additional notation “QUESTIONABLE.” Id. 

4 Sumrall’s bank first rejected the loan listing ACH rejection code R16, “Account 

Frozen/Entry Refused per OFAC Instructions.” Id. After providing another account 

number through enhanced due diligence review Sumrall’s bank again rejected the loan 

listing ACH rejection code R02, “Account Closed.” Id. 

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another area that likely falls outside the considerations of the contract 

and the regulation at hand. 

The varying circumstances of Lead Plaintiffs’ loan processes show 

that many situations could cause a funding failure after an SBA number

was assigned.5 And the specific failures applicable to all lead Plaintiffs 

likely fall out of the statutory and contractual obligation to “cancel” the 

loan within twenty days. This makes certifying a class for a breach of 

contract nearly impossible given the many possible answers that resolve 

the question “why were the funds not disbursed?”

The expansive state claims under the UCL and the NCDUTPA—

though broader in their application—also offer little in shoring up the 

commonality question. Lead Plaintiffs present multiple fact patterns 

that, taken individually, could be unfair, illegal, or deceptive. But, as 

evidenced by their individual circumstances, the answers to the central 

questions once again vary widely. These differing answers do not lend 

well to the adjudication of any of these claims by class action.

Commonality is not present. 

3. Typicality is not met.

Defendants next assert—for similar reasons—that typicality is not 

met. The Court agrees. 

The test of typicality concerns three questions: (1) whether other 

members have the same or similar injury, (2) whether the action is based 

on conduct which is not unique to the named plaintiffs, and (3) whether 

other class members have been injured by the same course of conduct.

Miller v. Grand Canyon Univ., Inc., 540 F. Supp. 3d 625, 634–35 (N.D. 

Tex. 2021) (citations omitted). In short, “class certification should not be 

granted if there is a danger that absent class members will suffer if their 

representative is preoccupied with defenses unique to it.” Id.; see also 

Zachery v. Texaco Expl. & Prod., Inc., 185 F.R.D. 230, 240 (W.D. Tex. 

5 Plaintiff does not object or dispute the facts provided by Defendants regarding 

each Lead Plaintiff’s individual loan circumstances. ECF No. 75 at 4. But even if they 

did dispute them or the facts were not individually true, the possibility of the many 

avenues presented still prevents this Court from finding common answers to the 

questions provided under a commonality analysis. 

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1999) (“Where unique defenses against a named plaintiff exist, the 

Court must consider the potential danger that the attention to this 

individual defense might harm the class.”). For this reason, “[t]he 

commonality and typicality requirements of Rule 23(a) tend to merge.”

Dukes, 564 U.S. at 350 n.5. 

Plaintiffs argue that typicality is met because all SBA number 

recipients signed identical loan packages with Capital Plus leaving them 

with the same injuries when Capital Plus failed to fund them. While this 

satisfies the first question of similar injury, Plaintiffs claims are lacking 

in the next two questions. 

As shown in the Court’s discussion of commonality, Defendants 

assert different factual defenses for nearly every Lead Plaintiff. ECF No. 

74 at 9–12. And many of these factual scenarios likely fall outside the 

statutory and contractual duties of the PPP loans at issue. The 

Plaintiffs’ differing circumstances thus implicate different defenses—a 

central concern of typicality. Each Plaintiff is left fending off divergent

factual defenses that they must rebut to succeed on their claims—taking 

clear precedence over the scenarios of absent class members. Because of 

this, the action is based on conduct that is unique to each named 

Plaintiff. And because the Lead Plaintiffs’ circumstances are so factually 

diverse, it is unknown how many other changed circumstances might 

exist with absent class members.

Typicality is not present. 

* * *

Because numerosity, commonality, and typicality are not met, 

Plaintiffs’ motion for class certification fails under Rule 23(a)(2).6 The 

Court next addresses Defendants’ arguments under Rule 23(b)(3). 

C. Rule 23(b)(3) Requirements 

Defendants next argue that Plaintiffs’ class certification also fails 

under Rule 23(b)(3). FED. R. CIV. P. 23(b)(3). Rule 23(b)(3) requires that 

“questions of law or fact common to class members predominate over 

6 Seeing that Plaintiffs motion fails under the first three central requirements of Rule 23(a)(2), 

the Court finds it unnecessary to address the adequacy of representation present in this case. 

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any questions affecting only individual members, and that a class action 

is superior to other available methods for fairly and efficiently 

adjudicating the controversy.” Id.

For the following reasons, the Court finds that the Rule 23(b)(3) 

requirements are not met. 

1. Common questions of fact do not predominate. 

Defendants assert that common questions of fact do not predominate 

as required by Rule 23(b)(3). The Court agrees. 

Factual predominance requires that “proposed classes are 

sufficiently cohesive to warrant adjudication by representation.” Cruson 

v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 253 (5th Cir. 2020). As with 

commonality and typicality “the risk of voluminous and individualized 

extrinsic proof defeating predominance runs particularly high where a 

defendant raises substantial affirmative defenses.” Id. at 256.

For the same reasons that prevent this Court from finding 

commonality or typicality, Plaintiffs’ claims also fail to satisfy Rule 

23(b)(3) as common questions of fact do not predominate over 

individualized questions in this proposed class. As evidenced above, the 

reasons for why a loan was not funded is an individualized affair that 

presents too many unique scenarios to properly be considered under a 

class action. ECF No. 74 at 9–12. And because the central identity of 

this entire case rests on this question, the lack of predomination of 

common facts is fatal under Rule 23(a)(3). 

Factual predominance is not present. 

2. A class action is not a superior method of adjudicating this 

case.

Defendants last argue that—because of the divergent factual 

scenarios of the lead and potential Plaintiffs—a class action is not the 

best method for adjudicating this case. They are correct. 

“Superiority” requires that a class action is “superior to other 

available methods for fairly and efficiently adjudicating the 

controversy.” FED. R. CIV. P. 23(b)(3). This involves a “fact-specific 

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analysis and will vary depending on the circumstances of any given 

case,” Madison v. Chalmette Refin., LLC, 637 F.3d 551, 555 (5th Cir. 

2011). The fact specific inquiry requires a court to assess “the relative 

advantages of alternative procedures.” Ibe v. Jones, 836 F.3d 516, 529 

(5th Cir. 2016).

Given the divergent factual scenarios present in this case, a class 

action appears unmanageable. ECF No. 74 at 9–12. At risk of sounding 

repetitive, the many circumstances that might lead to an unfunded loan 

would result in an ununiform and chaotic class. Id. Thus, “the principal 

purposes of the class-action procedure—promotion of efficiency and 

economy of litigation—would thereby be frustrated.” Crown, 462 U.S. at

349. As a result, individual claims—where each Plaintiff can argue the

specific facts of their unfunded loans—are a better method of remedying

the alleged wrongs present in this case.

* * *

Because common questions of fact do not predominate and a class 

action in not a superior method of adjudicating this case, Plaintiffs’ 

motion for class certification fails under Rule 23(b)(3) requirements.7

ORDER 

For the reasons stated above, The Court DENIES Plaintiffs’ Motion 

for Class Certification. ECF No. 67. 

SO ORDERED on this 6th day of September 2023.

7 Seeing that Plaintiffs motion clearly fails under these central requirements of 

Rule 23(b)(3), the Court finds it unnecessary to address the other 23(b)(3) issues raised 

by Defendants. 

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