CAMPBELL et al v. FIRST AMERICAN TITLE INSURANCE COMPANY

Filing 236

ORDER DECERTIFYING CLASS granting 208 Motion to Decertify Class, mooting 185 Motion for Partial Summary Judgment and Motion for Hearing ; mooting 202 Motion for Summary Judgment and Motion for Hearing ; mooting 207 Motion to Exclude By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERNHARD LOEF, on behalf of himself
and others similarly situated,
Plaintiff,
v.
FIRST AMERICAN TITLE INSURANCE
COMPANY,
Defendant.

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) Docket No. 2:08-cv-311-GZS
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ORDER DECERTIFYING CLASS

Currently pending before the Court is Defendant First American Title Insurance
Company’s Motion to Decertify Class (ECF No. 208); also pending are the parties’ crossmotions for summary judgment (ECF Nos. 185, 202) and Defendant’s Motion to Exclude the
Testimony of Plaintiff’s Expert Birny Birnbaum (ECF No. 207). The Court has also received
and reviewed correspondence from counsel bringing to the Court’s attention supplemental
authority published since the filing of the Motion to Decertify (ECF Nos. 229, 230, 232, 235).
For reasons explained herein, the Court now GRANTS the Motion to Decertify (ECF No.
208) and, in light of that ruling, the Court concludes that the remaining pending motions, which
necessarily assume the claims are subject to classwide determination, are MOOT.

I.

LEGAL STANDARD
Federal Rule of Civil Procedure 23(c)(1)(C) states that “[a]n order that grants or denies

class certification may be altered or amended before final judgment.” See also Brown v. Colegio

de Abogados de Puerto Rico, 613 F.3d 44, 50 (1st Cir. 2010) (“Courts may alter [class]
certification orders prior to final judgment….”). “Indeed, it is not uncommon to defer final
decision on certifications pending completion of relevant discovery.” In re New Motor Vehicles
Canadian Export Antitrust Litig., 522 F.3d 6, 26-27 (1st Cir. 2008). As the Supreme Court has
said, “[e]ven after a certification order is entered, the judge remains free to modify it in the light
of subsequent developments in the litigation.” Gen. Telephone Co. of Southwest v. Falcon, 457
U.S. 147, 160 (1982). For example, “a district court remains free at a later stage to modify or
even decertify a class if later evidence disproves the plaintiffs' assertions regarding … the
predominance of common issues.”

In re New Motor Vehicles, 522 F.3d at 30 (Torrella, J.

dissenting) (citing Falcon, 457 U.S. at 160). See also id. at 27 (stating that the court may revisit
certification “because of the novelty and complexity of the theories advanced and the gaps in the
evidence proffered”).
In assessing whether class certification remains viable, the Court must consider not only
developments of the factual record but also any newly announced legal precedent. Here, this
precedent now includes Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), in which the
Supreme Court provided new guidance on what satisfies the commonality requirement of Rule
23(a). Rather than simply identifying common questions, the Wal-Mart majority explained:
[The classwide] claims must depend upon a common contention…. That
common contention, moreover, 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.
What 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 litigation. Dissimilarities
within the proposed class are what have the potential to impede the generation of
common answers.

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Id. (internal quotations and citations omitted) (emphasis in original). Thus, while even one
common question can satisfy Rule 23(a)(2), dissimilar answers to that question among class
members may mean that commonality is lacking. See id. at 2556.
The pending motion essentially asks this Court to reconsider certification under this WalMart standard in light of the factual record developed during discovery.

II.

FACTUAL & PROCEDURAL BACKGROUND1
The Court assumes familiarity with its prior orders. See Campbell v. First Am. Title Ins.

Co., 644 F. Supp. 2d 126 (D. Me. 2009) (denying motion to dismiss); Campbell v. First Am.
Title Ins. Co., 269 F.R.D. 68 (D. Me. 2010) (provisionally certifying class but requiring further
information regarding adequacy of substitute class representative). Pursuant to these earlier
orders, the following class has been certified by the Court:
All persons who, at any time between September 17, 2002 and the present (the
“Class Period”):
(1)
(2)
(3)
(4)
(5)

refinanced a prior mortgage on residential property in Maine;
the prior mortgage was issued within two years of the refinancing;
the prior mortgage was insured by a title insurance policy issued by any
title insurance company licensed to do business in the State of Maine on
the date of issuance;
purchased title insurance from First American in connection with the
refinancing; and
paid an amount more than First American’s statutorily approved
refinance rate for a lender’s title insurance policy.

This certification was based on a finding that this class satisfied the four Rule 23(a)
factors – numerosity, commonality, typicality, and adequacy – and the Rule 23(b)(3) factors –
1

The facts recounted in this section draw for the materials submitted in connection with the Motion to Decertify as
well as the Statements of Material Fact (“SMF”) and accompanying declarations and exhibits (ECF Nos. 186-191,
194-198, 200, 203-205, 213, 216-222, 226). Although the Court has reviewed all of these materials, the Court limits
its factual recitation to only those facts that are relevant to the certification question.

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specifically, “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.” Campbell v. First Am. Title Ins.
Co., 269 F.R.D. 68, 71 (D. Me. 2010) (ECF No. 117) & April 4, 2011 Order (ECF No. 135). On
behalf of the class, the Third Amended Class Action Complaint (ECF No. 119) asserts state
claims for Violation of Maine’s Unfair Trade Practices Act (Count I), Breach of Contract (Count
II), Unjust Enrichment (Count III), and Money Had and Received (Count IV).
Since the initial certification of this class over two years ago, the parties have engaged in
significant discovery in connection with class notice and in preparation for filing the pending
cross motions for summary judgment. During the course of this discovery, it became clear that
even simply identifying members of the certified class was a challenging task. (See, e.g.,
February 28, 2012 Order on Pending Motions (ECF No. 180) at 4 (indicating the parties had
developed an over inclusive list of potential class members that contained approximately 76,000
likely Maine refinancers); July 11, 2012 Certification of Compliance with Class Notice Plan
(ECF No. 210) (indicating that class notice postcards were ultimately successfully mailed to
approximately 47,798 potential class members).)
Moreover, in connection with summary judgment briefing, the Court has received
voluminous factual submissions detailing genuine factual disputes as to whether individual class
members were entitled to First American’s lower refinance rate. (See, e.g., Rice Decl. (ECF No.
197) ¶¶7-10, 12, 15-22 & McClay Decls. (ECF Nos. 189 & 219) ¶¶2-5.) By way of example,
Lori Rice of First American conducted a parallel review of nearly 230 policies (and their
underlying individual transaction files) identified as overcharges by Plaintiff’s class certification

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expert, Dr. McClave.2 (See Rice Decl. ¶5.) Based on that review, Rice, on behalf of First
American, maintains that approximately one-third of the identified policies (71 of 230) were not
overcharged.

(Id. ¶7.)

Rather, Rice concluded that 33 of the 71 policies identified as

overcharges in fact received the discounted refinance rate (id. ¶9), and 38 of the 71 transactions
were not eligible for the refinance rate. (Id. ¶8.) Based on Rice’s review of the files, she found
different bases for ineligibility, including: (1) the borrower in the refinance transaction was not
the same as the borrower or borrowers in the prior transaction (18 transactions); (2) rather than
involving a refinance, the transaction involved a home purchase, new second mortgage, or other
transaction not eligible for the Refinance Rate (14 transactions); (3) the mortgage being
refinanced was not covered by a lender’s policy of title insurance (4 transactions); and (4) the
property securing the new loan was not the property involved in the loan that was being paid off
(2 transactions). (Id.)
Furthermore, for more than half of the remaining transactions (94 transactions), First
American could not locate – in either the closing file or First American’s back title site – a copy
of a loan policy from a prior mortgage transaction within the two-year look back period. (Id.
¶10.) Thus, according to Rice, it was “impossible for anyone to determine whether [these
transactions] qualified for but did not receive the discounted rate” because making that
determination would require additional information regarding the prior closing, which would
need to be obtained from either the lender, settlement agent, or another third party involved in
the transaction and then examined to verify whether a prior loan policy was issued. (Id.)
Plaintiff subpoenaed records relating to these remaining transactions from approximately 24 nonparty title agents and lenders and from this sample Plaintiff picked thirteen transactions that he

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The review took Rice, who has over twenty years’ experience in the title industry, an average of fifteen minutes to
review each file and to determine whether it was possibly eligible for the refinance rate. (Rice Decl. ¶ 6.)

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claims contain overcharges. Defendant reviewed these thirteen files and identified a number of
issues, including that 3 of the 13 transactions properly received the discounted title insurance rate
and that one borrower agreed to be charged the standard rate in exchange for a greater discount
on attorneys’ fees in the transaction. (Id. ¶¶ 19-22.)
The record developed for summary judgment makes clear that the factual disputes
regarding whether an individual transaction qualified for the refinance rate extends to the
refinance completed by Plaintiff Bernard Loef. During his January 2007 refinance, Loef did not
provide the title agent, First Suburban Title Company, any prior title insurance. (Def. SMF (ECF
No. 203) ¶25.) However, the closing file from the January 2007 refinance includes evidence of
Loef’s November 2005 mortgage as well as a prior policy of title insurance for Loef’s property
issued by First American in July 2004. (Def. SMF (ECF No. 203) ¶26.) The parties dispute the
import of these documents and whether these documents should have allowed the title agent to
ascertain that Loef qualified for a refinance rate in 2007.
In any event, in connection with Loef’s 2007 refinance, First American ultimately issued
an Eagle Loan Policy to Loef’s lender. Under the First American Procedure Manual in place at
the time, title agents were instructed to apply the refinance rate to an Eagle Loan Policy only if
the prior policy was also an Eagle Policy. Thus, First American asserts that Loef’s 2007
transaction did not qualify for the refinance rate even if the title agent had known that title
insurance had issued in connection with the prior 2005 refinance. To the extent that Plaintiff
disputes this assertion, it cannot be disputed that the factual record does not allow for a
determination that Loef in fact did not get the refinance rate because of any failure to ascertain or
assume the existence of a prior title insurance policy. Rather, it is just as likely that Loef was

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denied the refinance rate based on the title agent’s application of the First American Procedures
Manual and the decision to issue an Eagle Loan Policy.
As the Loef transaction displays, the rate determination for Loef’s 2007 title policy (and
each policy sold to any class member) was made by an individual title agent. Virtually all of
First American’s Maine title agents are licensed attorneys or staffed by licensed attorneys. (Def.
SMF (ECF No. 203) ¶7.) Each agent is subject to an agency agreement with First American that
requires the agent to “[r]eceive and process applications for title insurance in a timely, prudent
and ethical manner with due regard to recognized title insurance underwriting practices and in
accordance with the rules and instructions of First American Title.” (Def. SMF (ECF No. 203)
¶5.) With respect to determining whether an individual qualifies for First American’s refinance
rate, the record shows that the practice of First American’s title agents varies with respect to how
each agent determines if the transaction qualifies for the refinance rate. (Def. SMF (ECF No.
203) ¶11 (collecting declarations of over twenty First American Maine title agents describing
their practices for attempting to locate a prior title policy)). Given this documented variation in
practice and the variety of real estate transactions, the record now reflects a variety of
explanations for the cost of the First American title policies sold to class members. The Court
must now consider whether there is sufficient commonality to justify class certification in light
of this variation.

III.

DISCUSSION
Defendant moves for class decertification on two grounds. First, Defendant contends that

under Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the class fails to satisfy Rule
23(a)’s commonality requirement as set forth by the Supreme Court. Id. at 2551. Second, and

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relatedly, Defendant asserts that “the central liability question in this case is whether each class
member qualified for and was wrongly denied the refinance rate” and contends that there is no
common answer to this underlying liability question. (Def.’s Mot. to Decertify Class (ECF No.
208) at 7.)

Rather, according to Defendant, liability depends on a file-by-file review of

documents from each potential class member’s alleged refinance transaction and prior
transaction.

Defendant asserts this individualized review defeats commonality and

predominance under Rules 23(a) and 23(b)(3), respectively.
Plaintiff responds that Defendant’s Motion is untimely and that certification is still
justified on the current record. Specifically, Plaintiff challenges Defendant’s contention that
individual liability is the key question. Plaintiff instead maintains that resolution of this case
depends on “the nature and extent of First American’s duty to ascertain the correct rate” before
issuing a title insurance policy. (Pl.’s Opp. to Def.’s Mot. to Decertify Class (ECF No. 224) at
3.) This issue, Plaintiff argues, “is most economically resolved … on a class-wide basis … as a
matter of law.” (Id.) Plaintiff further asserts that Wal-Mart is not instructive here and that
Defendant’s argument that individual claims predominate is really an argument about calculating
damages on an individual basis that does not defeat predominance.
A. Commonality After Wal-Mart
Quite simply, Defendant presents the better argument. The Supreme Court’s recent
decision in Wal-Mart has transformed the Rule 23(a)(2) commonality standard from a “low bar,”
Campbell, 269 F.R.D. at 74 (quoting In re New Motor Vehicles Canadian Export Antitrust Litig.,
522 F.3d 6, 19 (1st Cir. 2008)), to a far more searching inquiry. See Wal-Mart, 131 S. Ct. at
2551. Following Wal-Mart, the ability to articulate common questions does not by itself satisfy
Rule 23(a)(2). See id. Rather, the Supreme Court held that “[c]ommonality requires the plaintiff

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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. (internal citation
and quotation omitted).
In certifying the current class, the Court found that there were two common questions:
(1) What is the ascertainment obligation of First American?
(2) What, if any, is the presentment obligation of a title insurance purchaser?
Campbell, 269 F.R.D. at 74-75. What is now clear is that each class member presents unique
facts as to what was presented in connection with their purchase of title insurance and what steps
were taken to ascertain whether they qualified for First American’s published refinance rate. As
a result, even assuming that the Class has a common injury (i.e., each was overcharged for title
insurance by Defendant), merits discovery has not uncovered any common cause for that injury
that can be traced to Defendant. Additionally, it is now clear that First American has different
defenses as to why individual class members were not charged the refinance rate at the time of
closing. See Wal-Mart, 131 S. Ct. at 2561 (noting that defendant retains a right to litigate
defenses to individual claims under Rule 23). Thus, there are not common answers to these
common questions. In the absence of a common answer, neither liability nor damages can be
established on a class wide basis.
In similar title insurance cases, at least two courts have applied Wal-Mart and found
commonality lacking. See, e.g., Scott v. First Am. Title Ins. Co., 276 F.R.D. 471, 480 (E.D. Ky.
2011) (finding commonality lacking because “there is no common method for ascertaining those
members falling within the class parameters” and because “the Court would still need to conduct
an individualized inquiry of each borrower’s refinance transaction to determine whether a
particular borrower … paid a premium that exceeded the rate amount on file”) (emphasis in

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original); Corwin v. Lawyers Title Ins. Co., 276 F.R.D. 484, 490 (E.D. Mich. 2011) (finding
commonality lacking because “the critical inquiry without which liability cannot attach requires
individualized determination”).
As in this case, the Corwin plaintiffs sought classwide relief claiming they had been
charged the standard title insurance rate when they actually qualified for discounted title
insurance associated with refinance transactions.3 276 F.R.D. at 490. However, the district court
concluded that “[t]he plaintiff cannot satisfy the requirement of Rule 23(a)(2) because, although
there are questions common to the absent class members and the plaintiff that must be decided
before liability is established, the critical inquiry without which liability cannot attach requires
individualized determination.”

276 F.R.D. at 490.

Because liability would require an

assessment of each transaction to determine if the absent class member qualified for the discount
rate, it could not be established “in one stroke.” Id. See also Wal-Mart, 131 S. Ct. at 2551.
Furthermore, the court said that even if the title insurance company had failed to make the proper
inquiry about the existence of title insurance in a prior transaction (a common question in the
instant case), such a finding would not establish that the title insurance company was unjustly
enriched by charging the standard rate. Id.
Similarly, the district court in Scott denied class certification because the “central
common question” – whether the Class was entitled to the discounted rates and, the other side of
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The Court acknowledges that the instant case has a class definition more specific than the proposed class in
Corwin. Because the proposed class in Corwin was more broadly defined to include all individuals who had
purchased title insurance at the standard rate within a given time period for property within the State of Michigan,
that case would have required a determination as to whether each putative class member had actually purchased title
insurance in an earlier transaction for the mortgage being refinanced. The district court understandably focused on
this particular individualized inquiry as a dissimilarity within the class. See Corwin, 276 F.R.D. at 490. In the
instant case, the Court need not determine whether each class member purchased title insurance in an earlier
transaction – that is a requirement of class membership. Nonetheless, variations in the closing files and readily
available title search materials for each class member would require individualized determination as to what was
presented and what could be readily ascertained regarding prior title policies. In short, the Court believes that the
commonality hurdle is the same despite difference in the class definition.

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the coin, whether First American was unjustly enriched – could not be determined “in one
stroke” for all class members without inspection of individualized proof.4 276 F.R.D. at 478
(quoting Wal-Mart, 131 S. Ct. at 2551). Plaintiff in Scott argued that the existence of a prior
mortgage transaction was sufficient for the trier of fact to conclude that a property’s title was
previously insured. The district court, however, disagreed, holding that “the existence of a
mortgage is not a proxy for title insurance.” Id. at 479. Accordingly, resolving whether a
putative class member was entitled to discounted title insurance that he or she did not receive
“requires highly individualized fact-based inquiries into each borrowers’ relevant real estate
transactions” to determine if title to the property was previously insured.

Id. at 478.

“Determining the existence of a prior title insurance policy,” the district court concluded, “would
certainly require individualized inquiry into each closing transaction and undermines Plaintiffs’
position that Rule 23’s commonality requirement is satisfied in this instance.” Id. “Particularly
relevant” in convincing the Court that commonality had not been met was “the stark reality” that
there were “no common answers to the question of liability” and “no common method for
resolving the liability question.” Id. at 479 (emphasis in original).
The Court concludes that the class certified here cannot be meaningfully distinguished
from the proposed classes in Corwin and Scott and, as a result, finds that the requisite
commonality is not established under the standard enunciated in Wal-Mart.
B. Predominance After Discovery
Even if Wal-Mart had not changed the legal landscape with respect to commonality, the
factual landscape of this case has changed following discovery. In its initial order certifying this
action, the Court certified this class under Rule 23(b)(3) finding, in relevant part, that there were

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The Court acknowledges that the sliding scale of title insurance rates at issue in Scott raises a unique complexity
not at issue under First American’s two-tier Maine rate schedule. 276 F.R.D. at 479-80.

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a number of legal questions that satisfied the predominance requirement. See Campbell, 269
F.R.D. at 78-79. The Court listed those questions as including:
(1) In accordance with 24-A M.R.S.A § 2316 and the First American’s Filed Rates, did
Defendant have an absolute duty to charge a class member its filed refinance rate?
(2) Absent an absolute duty to charge the refinance rate, did Defendant at least have a duty to
exercise reasonable care in determining which rate to charge a refinancer?
(3) What does reasonable care require:
a. Did First American have a duty to disclose the availability of the refinance rate
and explicitly request proof of prior title insurance from each borrower?
b. Alternatively, did First American have a duty to procure and examine the HUD-1
Statement of each refinancer and charge its filed refinance rate so long as lines
1108-1109 were filled in?
c. Was it unreasonable for First American to not assume that any prior institutional
mortgage (pre-2008) included a lender’s title policy?
Id. at 78. Having had an opportunity to review the summary judgment briefing, the Court
concludes that the first question reflects a novel argument and that Plaintiff cannot establish that
First American’s ascertainment duty is absolute. See In re New Motor Vehicles Canadian Exp.
Antitrust Litig., 522 F.3d 6, 26 (1st Cir. 2008) (explaining that “reliance on a novel theory to
establish a primary element of a claim necessitates a more searching inquiry into whether
plaintiffs will be able to prove the pivotal elements of their theory at trial”). Rather, Plaintiff’s
ability to prove liability on any claims will require them to prove that neither the title agent nor
First American used reasonable care in determining which transactions were entitled to the lower
refinance rate. Undoubtedly, determining what qualifies as reasonable care is going to be
transaction-specific.
Even if the Court assumes that the Plaintiff could establish as a matter of law that First
American had an absolute duty to charge the refinance rate in some circumstances, it is clear on

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the developed record that determining whether First American failed to fulfill that absolute duty
will require individual review of each class member’s transaction. Despite access to merits
discovery, Plaintiff has not presented sufficient evidence to create a trialworthy issue that there
was a classwide failure on the part of First American title agents to charge the refinance rate.
Rather, the Court is left to reach the same conclusion reached by the district court in Boucher v.
First American Title Insurance, No. C10-199RAJ, 2012 WL 3023316 (W.D. Wash. July 24,
2012): “the instances of overcharging . . . were not systematic (as the [plaintiffs] claimed), but
rather the result of errors that are apt to occur in any set of hundreds of thousands of customer
transactions.”5 Id. at *7. When the developed record leads to such a conclusion, common
contentions do not predominate and, as a result, a class action is not superior to other methods of
adjudicating the claims of First American’s customers.
Notably, two separate circuits who have reviewed denials of class certification in similar
suits against title insurance companies since the Wal-Mart decision have concluded that
individualized inquiries predominated over common questions. See, e.g., Benavides v. Chicago
Title Ins. Co., 636 F.3d 699, 702-03 (5th Cir. 2011) (upholding denial of class certification
because the predominant issues to determine were “individualized inquiries as to whether
particular persons qualify for the discount and were denied it”); Randleman v. Fidelity Nat’l
Title Ins. Co., 646 F.3d 347, 350, 353-54 (6th Cir. 2011) (upholding denial of class certification
because “liability could only be determined on an individual basis by examining each individual
homeowner’s file” and therefore common issues did not predominate because both class
membership and liability depended on an individualized review);
5

see also Ahmad v. Old

In Boucher, while finding a lack of predominance, the district court noted that Wal-Mart might require a finding
that commonality was lacking as well. Boucher, 2012 WL 3023316, at * 6, 8 & n.5 (W.D. Wash. July 24, 2012)
(refusing to certify class because proving each class members’ claim “would depend on a file-by-file review of each
class member’s transaction” and noting that “[w]ere it necessary for the court to revisit its commonality finding, it
might reach a different conclusion in light of Dukes”).

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Republic National Title Ins. Co., 690 F.3d 698 (5th Cir. 2012) (apply Benavides and reversing
the district court’s class certification). Following Benavides, Ahmad, Randleman and Boucher,
the Court is likewise satisfied that the developed factual record does not support certification
under Rule 23(b)(3).
In the absence of class certification, the Court is necessarily required to consider whether
it continues to have subject matter jurisdiction over any individual claims pressed by Mr. Loef.
In this case, the sole basis for jurisdiction over such state law claims would be 28 U.S.C. §
1332(d)(8). Whether this provision of the Class Action Fairness Act (“CAFA”) would allow the
Court to maintain jurisdiction after decertification is a question yet to be resolved by the First
Circuit. See College of Dental Surgeons v. Connecticut General Life Ins. Co., 585 F.3d 33, 42
(1st Cir. 2009) (expressing “no opinion” on the issue of “whether a later denial of class
certification will divest the district court of CAFA jurisdiction”). Nonetheless, the other circuits
to address the issue have held that CAFA jurisdiction remains even in the absence of a certified
class. See, e.g., Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) (collecting
cases); Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010) (holding
that “federal jurisdiction under the Class Action Fairness Act does not depend on certification”);
but see Epps v. JPMorgan Chase Bank, N.A., Civil No. WMN-10-1504, 2012 WL 5250538 at
*10 (D. Md. 2012) (remanding case following denial of certification). If any party has an
objection to the Court continuing to exercise subject matter jurisdiction over this case as an
individual action, a motion to dismiss shall be filed by January 18, 2013. In the absence of any
such motion or a voluntary dismissal of this action by Plaintiff, the parties shall file a joint
proposal for how to proceed with this individual action, including whether they wish to engage in

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dispositive motion practice regarding Mr. Loef’s individual claims. Said proposal shall be filed
no later than January 25, 2013.

IV.

CONCLUSION
Having concluded that the record no longer supports class certification, the Court hereby

GRANTS Defendant’s Motion to Decertify the Class (ECF No. 208) and DECERTIFIES the
Class. With only one individual plaintiff remaining, the Court finds the remaining pending
motions (ECF Nos. 185, 202 & 207), along with the accompanying requests for oral argument, to
be MOOT.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 10th day of December, 2012.

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