1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JANICE LOTT, on behalf of herself and No. 3:16-cv-00419-HZ

all others similarly situated; KANIKA 

CHEA, on behalf of herself and all others OPINION & ORDER

similarly situated,

Plaintiffs,

v.

VIAL FOTHERINGHAM, LLP,

Defendant.

Bret Knewtson

3000 NW Stucki Pl., Ste. 230

Hillsboro, OR 97214

Mark. G. Passannante

Boer & Passannante, P.S.

1001 SW Fifth Ave., Ste. 1220

Portland, OR 97204

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2 – OPINION & ORDER

Nicholas A. Kahl

Nick Kahl, LLC

209 SW Oak St., Ste. 400

Portland, OR 97204

Attorneys for Plaintiffs

Katie Jo Johnson

Jonathan M. Radmacher

McGowen Grisvold, LLP

1100 SW Sixth Ave., Ste. 1600

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiffs Janice Lott and Kanika Chea bring this putative class action against Defendant 

Vial Fotheringham, LLP. Plaintiffs allege that Defendant engaged in abusive, deceptive, and 

unfair debt collection efforts, in violation of the Fair Debt Collection Practices Act (“FDCPA”),

when attempting to collect overdue homeowners’ association (“HOA”) assessments. Before the 

Court is Plaintiff’s motion to certify a class. For the reasons that follow, the motion is denied.

BACKGROUND

A detailed description of Plaintiffs’ allegations against Defendant can be found in the 

Court’s prior Opinion & Order on Defendant’s motion to dismiss. See Op. & Order, Aug. 23, 

2016, ECF 10. Briefly, Plaintiffs fell behind in paying assessments to their HOAs for the 

maintenance of common areas. Plaintiffs’ HOAs employed Defendant as their debt collector. 

Defendant initiated collection lawsuits against Plaintiffs and prevailed. Defendant charged 

Plaintiffs for attorneys’ fees associated with its collection work and collected other management 

fees arising from Plaintiffs’ communications with Defendant regarding their delinquencies. 

Despite a standard Oregon statutory rate of 9%, Defendant also charged Plaintiffs with interest 

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on the attorneys’ fees it was awarded at rates of 18% against Lott and 12% against Chea. 

Plaintiffs allege that these charges and interest rates were not authorized by Plaintiffs’ 

agreements with their HOAs or by statute.

At summary judgment, the Court found that Defendant lawfully charged Plaintiffs for 

pre-suit attorneys’ fees. The Court also found that Defendant was not authorized to impose 

interest rates of 18% against Lott and 12% against Chea on prevailing-party attorneys’ fees. The 

Court denied both parties’ remaining motions as to whether Defendant lawfully charged 

Plaintiffs for other management fees.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 23, a suit may proceed as a class action if:

(1) [T]he class is so numerous that joinder of all members is impracticable; (2) 

there are questions of law or fact common to the class; (3) the claims or defenses 

of the representative parties are typical of the claims or defenses of the class; and 

(4) the representative parties will fairly and adequately protect the interests of the 

class.

Fed. R. Civ. P. 23(a). In addition to satisfying the four Rule 23(a) criteria, a class action may 

proceed only if one of the Rule 23(b) criteria is met. Fed. R. Civ. P. 23(b). To proceed under

Rule 23(b)(3), a court must find “that the questions of law or fact common to class members 

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

superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. 

R. Civ. P. 23(b)(3).

A plaintiff has the burden to establish compliance with Rule 23. Berger v. Home Depot 

USA, Inc., 741 F.3d 1061, 1067 (9th Cir. 2014). A class may therefore be certified only if the 

court is satisfied, “after a rigorous analysis, that the prerequisites of Rule 23(a) have been 

satisfied.” Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (quoting General 

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4 – OPINION & ORDER

Tel. Co. Southwest v. Falcon, 457 U.S. 147, 161 (1982)). In determining whether these 

prerequisites have been satisfied, the court takes “the substantive allegations of the complaint as 

true.” In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d 

1335, 1342 (9th Cir. 1982). However, the court must also “consider the nature and range of proof 

necessary to establish those allegations.” Id. Ultimately, the decision to grant or to deny class 

certification is within the trial court’s discretion. Bateman v. Am. Multi–Cinema, Inc., 623 F.3d 

708, 712 (9th Cir. 2010).

DISCUSSION

I. The Proposed Class

Plaintiffs propose the following class definition: 

All natural persons against whom Vial Fotheringham LLP filed a lawsuit and 

obtained a judgment based on alleged non-payment of a consumer debt 

originating from obligations owed by alleged debtors as members of a 

homeowners’ association where (a) the lawsuit alleged a right to, and the 

judgment included, post judgment interest on attorney fees at a contractual 

interest rate in excess of the statutory rate of interest of 9%; and (b) On or after 

March 7, 2015, Vial Fotheringham LLP collected on the judgment, or represented 

in any attempt to collect on the judgment or any communication to the debtor that 

interest had or could accrue on the attorney fee judgment at a rate exceeding 9%.

Pls. Mot. 1, ECF 63. Although this definition differs from the definition alleged in Plaintiffs’ 

complaint, it is consistent with this Court’s ruling on partial summary judgment and narrower 

than the class definition as originally pleaded. See Abdeljalil v. Gen. Elec. Serv. Corp., 306 

F.R.D. 303, 306 (S.D. Cal. 2015) (courts may consider a class definition narrower than that 

alleged in the complaint without the need for amending the complaint). 

Plaintiffs argue that class certification should be granted because the class is so numerous 

that joinder is impossible, Plaintiffs’ claims are typical of those of the class members, Plaintiffs

will adequately represent the class, and there are common questions of law and fact that 

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predominate over questions affecting only individual members. Defendant challenges every 

aspect of the analysis.

II. Rule 23 Factors

A. Numerosity

Rule 23(a)(1) requires that a “class [be] so numerous that joinder of all members is 

impracticable[.]” Fed. R. Civ. P. 23(a)(1). In the Ninth Circuit and this district, a class with as 

few as forty members generally meets the numerosity requirement. E.g., Jordan v. Los Angeles 

Cty, 669 F.2d 1311, 1319 & n.10 (9th Cir. 1982) (stating inclination “to find the numerosity 

requirement . . . satisfied solely on the basis of the number of ascertained class members, i.e., 39, 

64, and 71,” and listing thirteen cases in which courts certified classes with fewer than 100 

members), vacated on other grounds, 459 U.S. 810 (1982); Or. Laborers–Emp’rs Health & 

Welfare Trust Fund v. Philip Morris, 188 F.R.D. 365, 372 (D. Or. 1998) (“This district has held 

that, as a ‘rough rule of thumb,’ approximately forty members is sufficient to satisfy the 

numerosity requirement.”) (quoting Wilcox Dev. Co. v. First Interstate Bank of Or., N.A., 97 

F.R.D. 440, 443 (D. Or. 1983)). “In analyzing numerosity a court may make common-sense

assumptions and reasonable inferences.” West v. Cal. Servs. Bureau, Inc., 323 F.R.D. 295, 305

(N.D. Cal. 2017) (quotation omitted).

Plaintiffs estimate the proposed class will include more than 1,000 members. Plaintiffs 

rely on two pieces of evidence: Defendant’s Amended Answer to Plaintiffs’ Class Interrogatory 

No. 4 and the deposition of Defendant’s representative, Sarah Lappin. Together, this evidence 

shows that Defendant filed “1039 lawsuits seeking interest on attorney fees since March 7, 

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2015,” Kahl Decl. ¶ 3, Ex. 2 (“Interrog.”) at 3–4,

1

and that Defendant is actively collecting on

approximately 1,000 judgments with attorneys’ fees, see Kahl Decl. Ex. 1 (“Lappin Dep”) at 

9:24–10:2.

Defendant argues that Plaintiffs fail to establish that the proposed class actually includes

more than 1,000 members. Specifically, it argues that the evidentiary bases for Plaintiffs’ 

estimate are flawed; both Ms. Lappin’s testimony and the interrogatory response identify

overinclusive numbers. For example, while Defendant has filed 1,039 lawsuits seeking interest 

on attorneys’ fees since March 7, 2015, not every lawsuit has resulted in a judgment. Indeed, 

even if each lawsuit had resulted in a judgment, Defendant stopped collecting interest at rates

over 9% (the statutory rate) following this Court’s summary judgment opinion in October 2017. 

Thus, according to Defendant, this evidence does not prove that the proposed class will actually 

include more than 1,000 members. 

The Court finds that Plaintiffs have satisfied the numerosity requirement. Given 

Defendant’s statement that it takes, on average, three to five years to collect on a judgment, it is 

reasonable to assume some correlation between the number of lawsuits filed since March 7, 2015 

(1,039) and the number of judgments with active collection efforts (over 1,000). Even with

Defendant’s representation that it stopped collecting interest on attorneys’ fees at rates over 9%

after October 2017, the proposed class still easily exceeds this district’s “rough rule of thumb”

that approximately forty members is sufficient. Indeed, even assuming Defendant only attempted 

to collect against half of the 1,000 members identified by Plaintiffs (over, for example, the 

 

1 While Defendant faults Plaintiffs for “never attempt[ing] to identify the actual number of 

people that would be covered by their proposed class definition,” Def. Resp. 5, the Court notes 

that Defendant objected to Plaintiffs’ request to “[i]dentify those Delinquent Homeowners who 

were sent a demand by [Defendant] that included an Unlawful Interest Rate as part of the sum 

demanded,” and provided only the answer included above. 

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course of the two and a half years between March 2015 and September 2017), the class remains 

at 500. Even a third, a quarter, or a tenth of the 1,000 proposed members reaches the same result.

Accordingly, applying common sense assumptions and reasonable inferences, the Court finds 

that Plaintiffs have satisfied the numerosity requirement.

B. Typicality

Rule 23 requires Plaintiffs to establish that the class representatives’ claim is typical of 

the claims of the class. Fed. R. Civ. P. 23(a)(3). “The purpose of the typicality requirement is to 

assure that the interest of the named representative aligns with the interests of the class.” Wolin v. 

Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon, 976 F.2d 

at 508). “The test of typicality is whether other members have the same or similar injury, 

whether the action is based on conduct which is not unique to the named plaintiffs, and whether 

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

“permissive standards” of Rule 23(a)(3), the “representative claims are ‘typical’ if they are 

reasonably co-extensive with those of absent class members; they need not be substantially 

identical.” Hanlon, 150 F.3d at 1020. Even if the claims are not substantially identical, however,

the class representative must still “be part of the class and possess the same interest and suffer 

the same injury as the class members.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 

(1982) (quotation omitted). Class certification is inappropriate where the representative is subject 

to unique defenses which could become the focus of the litigation. Hanon, 976 F.2d at 508.

Defendant argues there are “several legal issues which may vary between class 

members.” Def. Resp. 6. Specifically, Defendant asserts that not all proposed class members will 

be “consumers,” and some class members’ claims may be subject to estoppel or Rooker-Feldman 

type arguments. In other words, Defendant argues that some proposed class members may be 

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subject to unique defenses. Defendant fails, however, to support these arguments with any 

citation or explanation. Even if these arguments were supported, they are without merit. The 

question is not whether class members may be subject to individual defenses, but whether the 

proposed representatives may be preoccupied with defenses unique to them. See Berman v. 

Freedom Fin. Network, LLC, 400 F. Supp. 3d 964, 985 (N.D. Cal. 2019) (referencing the 

“general rule, as followed by numerous courts in the Ninth Circuit, that the existence of 

affirmative defenses applicable to some members of the putative class but not the representative, 

such as execution of a mandatory arbitration agreement, does not render the class representative 

atypical or inadequate”) (collecting cases).

Plaintiffs’ class claims arise from Defendant’s common conduct of seeking unauthorized 

interest on attorneys’ fees incurred in the collection of HOA debt. As the proposed class 

members have the same injury as the named representatives, the action is based on conduct 

which is not unique to the named representatives, and the proposed class was injured by the same 

course of conduct, Plaintiffs have satisfied the typicality requirement for class certification.

C. Adequacy

Rule 23(a)(4) requires the class representatives to fairly and adequately protect the 

interests of the class. “This requirement turns on two questions: (1) whether ‘the named plaintiffs 

and their counsel have any conflicts of interest with other class members’; and (2) whether ‘the 

named plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.’” 

Demmings v. KKW Trucking Inc., No. 3:14-cv-494-SI, 2018 WL 4495461, at *14–15 (D. Or. 

Sept. 19, 2018) (quoting Hanlon, 150 F.3d at 1020) (alterations in original).

Defendant argues (1) there is no evidence that Plaintiffs understand and accept their

responsibilities as class representatives and are free from conflicts of interest, and (2) class

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counsel are inadequate because they misstate the law and facts in their class certification

briefing.

2

Plaintiffs have demonstrated that they will fairly and adequately protect the interests of

the class. In signed declarations, both Ms. Lott and Ms. Chae state that they accept and

understand their responsibilities as class representatives. Lott Decl., ECF 74; Chea Decl., ECF

75; see also Moeller v. Taco Bell Corp., 220 F.R.D. 604, 611 (N.D. Cal. 2004) (“The threshold

of knowledge required to qualify a class representative is low; a party must be familiar with the

basic elements of her claims[,] and will be deemed inadequate only if she is ‘startlingly

unfamiliar’ with the case.” (citations omitted)). Defendant has also failed to identify any interest

adverse to the proposed class, and mere speculation as to a potential conflict will not defeat class

certification. See Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003) (“[T]his circuit does

not favor denial of class certification on the basis of speculative conflicts.”); Soc. Servs. Union,

Local 535, Serv. Emps. Int’l Union, AFL–CIO v. Santa Clara Cnty., 609 F.2d 944, 948 (9th Cir.

1979) (“Mere speculation as to conflicts that may develop at the remedy stage is insufficient to

support denial of initial class certification.”).

Additionally, while Defendant may disagree with certain legal and factual arguments,

Defendant provides no support for its position that misstatements or unpersuasive arguments are

relevant to the adequacy analysis. Indeed, even if the Court found Defendant’s concerns 

warranted, the appropriate response would be to certify the class and appoint separate class 

counsel under Rule 23(g). Such an action is not necessary here; Plaintiffs have provided 

sufficient evidence that they are represented by qualified and competent counsel. In particular,

 

2 Defendant also seems to suggest some issue with the fact that Plaintiff has employed three 

lawyers from three law firms, and these attorneys employed another attorney to review the 

discovery. Defendant fails to explain how this is relevant to the adequacy analysis. 

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Plaintiffs submitted declarations from counsel outlining their collective experience in class

actions and FDCPA litigation. See A.F. ex rel. Legaard v. Providence Health Plan, 300 F.R.D. 

474, 483 (D. Or. 2013) (court found adequacy where law firm had been appointed lead counsel 

in other class action lawsuits and lead counsel had experience litigating similar claims). Plaintiffs

have therefore satisfied the adequacy requirement of Rule 23.

D. Commonality

Under Rule 23(a)(2), Plaintiffs must establish that there “are questions of law or fact 

common to the class.” Fed. R. Civ. P. 23(a)(2). Generally, Rule 23(a)(2)’s requirements “have 

been construed permissively, and all questions of fact and law need not be common to satisfy the 

rule.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (internal quotation 

marks and brackets omitted). Nonetheless, the Supreme Court has recognized that “any 

competently crafted class complaint literally raises common ‘questions.’” Wal–Mart Stores, Inc. 

v. Dukes, 564 U.S. 338, 349 (2011) (internal quotation marks and brackets omitted). As a result, 

the Court explained that “reciting these questions is not sufficient to obtain class certification.” 

Id. (internal quotation marks omitted). Instead, “[c]ommonality requires the plaintiff to 

demonstrate that the class members have suffered the same injury” which does not “mean merely 

that they have all suffered a violation of the same provision of law.” Id. at 349–50 (citations 

omitted). The claims “must depend upon a common contention” and that common contention 

“must be of such a nature that it is capable of classwide resolution—which means that 

determination of its truth or falsity will resolve an issue that is central to the validity of each one 

of the claims in one stroke.” Id. at 350. According to the Court, “[w]hat matters to class 

certification is not the raising of common ‘questions’—even in droves—but, rather the capacity 

of a classwide proceeding to generate common answers apt to drive the resolution of the 

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litigation.” Id. (internal quotation marks and ellipsis omitted). “This does not, however, mean 

that every question of law or fact must be common to the class; all that Rule 23(a)(2) requires is 

‘a single significant question of law or fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 

957 (9th Cir. 2013) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)).

Plaintiffs argue that resolution of the proposed class’s claims will involve at least the 

following common legal issues:

(1) Whether communications sent by Vial in an effort to collect on judgments 

that included post-judgment interest on attorney fees at the Contractual Rate 

were false, deceptive, or misleading representation in the collection of the 

debt in violation of section 1692e of the FDCPA.

(2) Whether communications sent by Vial in an effort to collect on judgments 

that included post-judgment interest at the Contractual Rate falsely 

represented the character, amount, or legal status of the debt in violation of 

section 1692e(2)(A) of the FDCPA.

(3) Whether the communications sent by Vial in an effort to collect on 

judgments that included post-judgment interest at the Contractual Rate 

constituted threats to take an action that could not legally be taken in 

violation of 15 USC 1692e(5), false or deceptive means to collect or attempt 

to collect under 15 USC 1692e(10), unfair or unconscionable means of 

collection under 15 USC 1692f, or constituted attempts to collect an amount 

not expressly authorized by the agreement creating the debt or permitted by 

law as proscribed by 15 USC 1692f(1) of the FDCPA.

(4) Interpretation of the HOA governing documents; specifically, whether those 

governing documents permitted Vial to charge Contractual Rate interest on 

prevailing party attorney fees included in a judgment.

Pls. Mot. 4–5. Plaintiffs also identify “common facts” that include: Defendant obtained 

judgments against all class members based on HOA debt, these judgments included postjudgment interest on attorneys’ fees at a rate set by HOA governing documents, and Defendant 

collected or attempted to “collect on these judgments by, among other things, sending letters and 

correspondence.” Id. at 5–6.

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In response, Defendant argues that to resolve the claims at issue, the Court will need to 

individually analyze a range of documents from hundreds of different HOAs. Defendant points 

out that the proposed class includes members from 262 HOAs, and each HOA has a different set 

of relevant documents, including declarations, bylaws, and collection resolutions. According to 

Defendant, the content of these documents will determine whether Defendant was entitled to 

collect interest on attorneys’ fees at a contractual rate greater than 9%. Thus, individual inquiries 

into the governing documents of each HOA will dominate the Court’s analysis. While certainly 

relevant, the Court finds these arguments more persuasive in the context of Rule 23(b)(3)’s 

predominance analysis and will therefore address them below.

Given that Rule 23(a)(2)’s requirements are generally construed permissively, Plaintiffs 

have identified sufficient issues of law and fact to satisfy the commonality requirement. 

Specifically, Defendant acted in a substantially similar manner against all proposed class 

members by initiating collection lawsuits against HOA members in default, obtaining judgments 

against those members, charging those members for attorneys’ fees associated with its collection 

work, and seeking interest on those fees at rates exceeding the Oregon statutory rate of 9%. The

injury to each proposed class member is the same; Defendant charged interest on attorneys’ fees 

that was neither supported by contract nor statute. Accordingly, common proof will be available 

to determine whether individual HOAs allowed for the collection of contractual interest and 

whether Defendant’s conduct in collecting that interest violated the FDCPA. Plaintiffs have

therefore satisfied the commonality requirement. 

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E. Predominance3

The predominance inquiry of Rule 23(b)(3) asks whether “the questions of law or fact 

common to the class members predominate over any questions affecting only individual 

members.” Fed. R. Civ. P. 23(b)(3). The predominance criterion of Rule 23(b)(3) is “far more 

demanding” than the commonality requirement set forth in Rule 23(a)(2). Amchem Prods., Inc. v. 

Windsor, 521 U.S. 591, 624 (1997). Because class actions are meant to promote efficiency and 

economy of litigation, the predominance analysis focuses on the relationship between the 

common and individual issues in the case, and tests whether the proposed class is sufficiently 

cohesive to warrant class treatment. Abdullah, 731 F.3d at 963–64. Thus, predominance 

generally exists where common questions, which can be resolved for all members on a classwide basis, are such a significant aspect of the case that they present “a clear justification for 

handling the dispute on a representative rather than on an individual basis.” Hanlon, 150 F.3d at 

1022 (internal quotation marks and citation omitted). “Considering whether ‘questions of law or 

fact common to class members predominate’ begins, of course, with the elements of the 

underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809

(2011).

The FDCPA prohibits debt collection of any interest, fee, charge, or expense “unless such 

amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 

U.S.C § 1692f(1). At summary judgment, the Court found that Defendant violated the FDCPA as 

 

3 Because Plaintiffs have failed to meet the predominance requirement, the Court will not address 

the superiority requirement. See Soares v. Flowers Foods, Inc., 320 F.R.D. 464 (N.D. Cal. 2017) 

(“Normally, when a plaintiff fails to meet the predominance requirement, the court need not 

address the superiority requirement.”). As the Ninth Circuit has explained, “[i]f each class 

member has to litigate numerous and substantial separate issues to establish his or her right to 

recover individually, a class action is not ‘superior.’” Zinser v. Accufix Research Inst., Inc., 253

F.3d 1180, 1192 (9th Cir. 2001).

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to Ms. Lott and Ms. Chae by collecting interest on attorneys’ fees at rates not expressly 

authorized by the HOA governing documents that created the underlying debt. Defendant argues 

that to determine whether it violated the FDCPA as to each member of the proposed class, the 

Court will again need to individually analyze the governing documents from each HOA. Because 

the proposed class includes members from 262 different HOAs, and the governing documents for 

each HOA include declarations of covenants, conditions & restrictions (“declarations”), 

resolutions, and bylaws, these individual inquiries will dominate the Court’s analysis. 

Plaintiffs argue that the Court will not, in fact, need to analyze each declaration, 

resolution, and set of bylaws for each of the 262 HOAs. First, Plaintiffs argue that because the 

express authorization to collect interest on attorneys’ fees must appear in the “recorded 

governing documents filed with the county recorder’s office and associated with the deed or title 

of the property,” only the declarations will be relevant to the Court’s analysis. Pls. Mot. 13.

Second, Plaintiffs argue that although there are 262 different HOAs, there are actually only 

seventy-one different clauses authorizing interest on attorneys’ fees; many of the HOAs share 

either identical or substantially similar clauses on the issue. Thus, according to Plaintiffs, the 

Court’s review would be far more limited than projected by Defendant.

As a preliminary matter, the Court does not agree that Plaintiffs’ citations establish that 

only declarations can determine whether an HOA is expressly permitted to impose a contractual 

interest rate on prevailing-party attorneys’ fees in the first instance.

4 Even if the Court did accept 

this premise, however, the Court would still find that, under Plaintiffs’ own theory, individual 

inquiries into each declaration would predominate the litigation. To determine whether 

 

4

Indeed, the Court notes that, at summary judgment the Court looked to the declarations, bylaws, 

and resolutions to determine whether the governing documents authorized the disputed interest 

rates. 

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Defendant had a contractual right to collect interest on attorneys’ fees, the Court would need to 

examine each of the seventy-one clauses separately. While Plaintiffs argue that, per their own 

analysis, these clauses do not allow interest on attorneys’ fees in excess of the statutory rate, this 

is, in fact, the very heart of the FDCPA claim. Though the Court might accept Plaintiffs’ 

assertion that there are only seventy-one unique clauses to begin with, the Court cannot simply 

accept Plaintiffs’ interpretation of those clauses. Thus, even under Plaintiffs’ own theory, 

individual inquiries into the terms of the relevant documents would predominate over any 

common questions. Class certification is therefore not appropriate under Rule 23(b)(3). 

CONCLUSION

Plaintiff’s motion for class certification [63] is DENIED.

IT IS SO ORDERED.

Dated: _____________________________________.

 

MARCO A. HERNÁNDEZ

United States District Judge

April 15, 2020

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