In re Community Bank of Northern Virginia Mortgage Lending Practices Litigation, 795 F.3d 380 (3d Cir. 2015). Every five years, the Third Circuit issues an opinion on class certification in this protracted class action case. See In re Community Bank of Northern Virginia, 622 F.3d 275 (3d Cir. 2010); In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005). This opinion by Judge Jordan concludes with the expressed hope that this is “the last quinquennial presentation of class certification questions to this court in this case.” In this decision, the panel affirmed the District Court’s grant of class certification.
Judge Jordan’s exhaustive opinion applied the abuse of discretion standard of review, and discussed most of the key considerations relating to class certification. Those include (as listed in the very helpful Table of Contents that precedes this lengthy opinion) adequacy of representation, conditional certification (PNC Bank, the appellant, argued that the District Court had granted conditional class certification, which cases such as In re Nat’l Football League Players Concussion Injury Litigation, 775 F.3d 570 (3d Cir. 2014), forbade; the panel did not agree that conditional certification had been granted), ascertainability, commonality, predominance, superiority, and manageability. Judge Jordan also rejected some lesser arguments by PNC, including the contentions that the District Court erred in imposing a page limit on briefs, a time limit for oral argument, and a “compressed” briefing schedule. PNC “provide[d] no legal authority to suggest that any of the alleged defects are grounds for reversal,” and indeed those matters are normally within the discretion of a District Court.
To summarize, PNC’s adequacy of representation argument asserted that there was an intra-class conflict. Judge Jordan observed that, to defeat adequacy, any such intra-class conflict must be both “fundamental” and “more than merely speculative or hypothetical.” Though the panel foresaw a potential “problem growing on the horizon,” at this time there was no adequacy problem. PNC’s ascertainability argument was “mired in speculation” and unpersuasive. PNC had all the records necessary to identify class members, and the fact that “a few steps” needed to be followed in order to use those records to determine whether a borrower was the real party in interest was not onerous enough to defeat ascertainability.
“The bar is not high” for commonality, Judge Jordan said, citing prior cases. Plaintiffs here met that standard. Predominance too was satisfied, despite PNC’s arguments that questions of standing, equitable tolling, reliance, and damages meant that individual issues predominated over common questions.
Finally, the District Court did not abuse its discretion in finding that a class action was superior to individual cases. It would be difficult, if not impossible, for class members to file individual actions so many years after the underlying events, and “the tremendous burden [of] presiding over tens of thousands of nearly identical cases” rightly led the District Court to find a class action superior. PNC’s argument that damage issues made the unmanageable was disposed of by Judge Jordan essentially in two sentences. “That a class action may require some inquiry into facts specific to individual class members, such as damages, is not a novel observation, nor does it necessarily mean that a class action will be unmanageable. The District Court did not err by deciding that it could address this aspect of case management more fully at a later date.”
This well-reasoned opinion is an excellent resource. It is definitely worth reading in full.