HASKINS et al v. FIRST AMERICAN TITLE INSURANCE COMPANY

Filing 249

OPINION. Signed by Judge Renee Marie Bumb on 7/30/2014. (drw)

NOT FOR PUBLICATION

[Docket Nos. 207, 208 & 217]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MIRIAM HASKINS, et al.,
Plaintiffs,

Civil No. 10-5044 (RMB/JS)
OPINION

v.
FIRST AMERICAN TITLE INSURANCE
CO.,
Defendant.

APPEARANCES:
Daniel Posternock
McDowell Riga Posternock, PC
400 N. Church Street
Moorestown, NJ 08057
Attorneys for Plaintiffs
Edward J. Reich
Dentons US LLP
1221 Avenue of the Americas
New York, NY 10020
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
I. Background 1
This matter comes before the Court upon Plaintiffs’ Motion

1

As the Court writes only for the parties, it recites only those
facts and portions of the prior Opinion necessary for the
instant motion. For a complete overview of the facts underlying
this litigation see, Haskins v. First American Title Ins. Co.,
No. 10-5044, 2014 U.S. Dist. LEXIS 9559 (D.N.J. Jan. 27, 2014).
1

for Reconsideration [Docket No. 207] 2, requesting that this Court
reconsider its denial of Plaintiffs’ Motion for Class
Certification.

Simply put, Plaintiffs’ Motion for

Reconsideration is a reiteration of the same superficial
arguments asserted in their Motion for Class Certification that
are belied by the evidence presented in this case, including the
Plaintiffs’ own expert’s testimony.
Plaintiffs are New Jersey homeowners who refinanced their
home mortgages and allege in their Amended Class Action
Complaint (the “Amended Complaint”) that Defendant First
American Title Insurance Company (“Defendant” or “FA”)
systematically overcharged New Jersey homeowners for title
insurance during refinance transactions. 3 (Amended Comp. at ¶ 1).

2

The parties have submitted Motions to Seal [Docket Nos. 208
and 217] in conjunction with the Motion for Reconsideration.
For reasons nearly identical to those articulated in this
Court’s prior Order [Docket No. 181] those motions are GRANTED.
3

Plaintiffs in this matter proposed the following class
definition:
All homeowners in New Jersey who, during the period
September 29, 2004 through the date of judgment (the “Class
Period”):
(1) refinanced a home mortgage on the same property
already covered by a mortgage;
(2) paid a lenders’ title insurance premium to First
American Title Insurance Company, directly or
indirectly; and
(3) either:
(A)

Paid a premium that exceeded the Minimum Possible
Premium by at least $25, in a refinancing
transaction for which First American’s electronic
records do NOT show that the premium charged was
2

Plaintiffs claim that Defendant was bound by statutory title
insurance rates, but overstated those fees on the HUD-1
Settlement Statements at closing. (Id. at ¶ 42).
In New Jersey, title insurance rates are regulated by law,
and Defendant is a member of the New Jersey Land Title Insurance
Rating Bureau and subject to its filed Manual of Rates and
Charges (“Rate Manual”).

(Aubrey Cert. at ¶ 3).

The Rate

Manual provides for a discount (the “Discounted Rate”) on title
insurance for a refinance transaction when:
•
•
•

The transaction is a refinance (i.e., existing loan(s) are
paid off with funds from the new loan and are released at
closing);
The new loan is made to the same borrower; and
The loan is made on the same property.

(B)

(C)

the mandated amount under the New Jersey Manual
of Rates and Charges (the “Rate Manual”). The
Minimum Possible Premium is the premium that
would have been charged if the Refinance Rate
were applied to the entire loan amount for
purposes of calculating the premium[;]
OR
Paid a premium that exceeded the Minimum Possible
Premium by at least $250;
OR
Purchased title insurance from First American or
a subsidiary of First American, as opposed to a
nonemployee or independent title agent, and paid
a premium that exceeded the Minimum Possible
Premium by at least $25.

(Pls.’ Class Cert. Br. at 3-4).
3

(Id. at ¶ 4 & Exs. A & B (Rate Manual §4.6.1)). 4

It is

undisputed that a transaction must meet the above criteria in
order to qualify for the Discounted Rate.

It is similarly

undisputed that, once you know whether a transaction qualifies
for the Discounted Rate based on the above criteria, to
calculate an overcharge, if any, requires four data elements:
•
•
•
•

Liability Amount
Liability Date
Premium Charged; and
Prior Loan Amount. 5

During the proposed class period, FA sold title insurance
through two different avenues: directly from its branch offices
in New Jersey and indirectly through authorized title agents.
(Aubrey Cert. ¶ 8).

FA maintains three different IT databases

to store data related to title insurance policies issued in New
Jersey: “FAST”, “WINGS” and “STARS”.

Information regarding

4

In addition, the Discounted Rate applies only to “so much of
the new policy as represents the face amount of the mortgage or
mortgages . . . being refinanced,” and then the Basic or
Standard Rate applies to any amount over the amount of previous
indebtedness. (Id.). In other words, the Discounted Rate would
only apply to “old money” and amounts above the previous amount
of the prior mortgage would be considered “new money,” charged
at the higher rate. (Jan. 9, 2014, Hearing Tr. 117:10-18).
Finally, the refinance rate will not apply where the prior
mortgage loan was a construction loan or if an existing mortgage
is not both paid off and released at closing. (Aubrey Cert. at
¶ 5).
5

See Plaintiffs’ Expert Report of Mr. Pakter at p. 9.

4

policies sold directly by FA is stored in its “FAST” IT system.
The information stored in FAST, however, does not lend itself to
an electronic determination of whether a transaction qualified
as a refinance, even if the transaction type listed in the
system is “refinance.” (Barney Cert. ¶ 9; Barney Dep. 91:4-20) 6.
The electronic information related to title insurance
transactions completed by FA’s independent title agents is
stored in WINGS (for policies issued prior to 2008) and STARS
(for policies issued from 2008 forward).

(Barney Cert. ¶ 10).

The information that is input into the WINGS and STARS systems
about the policy transactions depends entirely on what is

6

During the 30(b)(6) deposition of Karen Barney, First
American’s Technology Product Manager, she testified that merely
because a transaction was listed in the system as a refinance
did not mean that it was in fact a refinance transaction or that
the refinance rate applied:
Q: This is a refinancing transaction; correct?
A: I would not say that -- for a fact.
Q: It’s noted as a –
A: The transaction type selected in this order is a
refinance. That does not mean that it was a refinance
transaction.
Q: And it wasn’t a refinancing – actually, it wasn’t a
refinancing transaction, it would just be a mistake that that it
was designated as such in this particular document?
***
A: Well, we just pull whatever is in the – in that field
so. So either it was actually a refinance or not, you wouldn’t
know without reviewing the file.
(Barney Dep. 91:4-13, 16-19, emphasis added).
5

remitted by the agent and can vary from agent to agent.

(Barney

Dep: 22:18-23:9; Dirks Dep. 37:1-13; Whippen Dep. 20:7-23).
As stated in this Court’s prior Opinion, and despite
Plaintiffs’ blanket contentions to the contrary, the evidence
and the expert testimony demonstrates that merely because a
transaction was listed in the IT systems as a refinance did not
mean that it was, in fact, a refinance transaction or that the
Discounted Rate applied.

Instead, a review of each individual

file is needed to determine if the policy qualified for the
Discounted Rate.

See e.g., Barney Dep. 91:4-13, 16-19; Barney

Decl. at ¶¶ 6 & 13.
While the information input into all three IT systems
varies, the FAST, WINGS and STARS systems have rate calculators
that “calculate premiums.”

(See Whippen Dep. 40:9-15 (WINGS);

Dirks Dep. 43:8-14 (STARS) & Barney Dep. 62:7-22 (FAST)).

Based

on these calculations, FA engages in a process to perform
reconciliations on its agents’ remittances to resolve variances
between the amounts charged and the amounts remitted by the
independent agents.

(Dirks Dep. 14:5-20).

As set forth in this Court’s prior Opinion, and as now
expressly admitted by Plaintiffs, these rate calculators,
however, are not designed to determine whether the requirements

6

for the Discounted Rate per the Rate Manual were met 7 or whether
such rate was properly applied.

Instead, the independent agents

determine whether the requirements for the Discounted Rate were
satisfied. (Aubrey Decl. at ¶ 9; see e.g., Berenato Decl. ¶ 17;
Fitzpatrick Decl. ¶ 21; Gdovin Decl. ¶ 7; Greist Decl. ¶ 7).

To

ensure compliance of its agents with the Rate Manual, FA
conducts only random audits – not exhaustive audits - of agent
files, which involve manual reviews of the underlying agent
files to “determine what type of transaction it was, was it a
purchase or refinance, [and to] determine what rate structure
was used.”

(Bouffard Dep. 14:4-20; Foma Dep. 14:13-17).

The central dispute in this case, and revisited on this
Motion for Reconsideration, centers on whether the data in the
Defendant’s relevant databases – i.e., FAST, WINGS and STARS –
contains, “in electronic form, all of the necessary information
needed to calculate and verify premiums in accordance with the
New Jersey Rate Manual.” (Pls.’ Class Cert. Reply Br. at
1)(emphasis added).

This Court previously found that the

relevant databases did not contain the information needed under
the proposed class definition and that a file-by-file review was

7

In response to this finding, the Plaintiffs in their
Reconsideration Reply brief state: “This is indeed true.”
[Docket No. 224 at 2].
7

necessary to determine whether a transaction qualified for the
Discounted Rate and was overcharged.
Pursuant to the above, this Court denied Plaintiffs’ Class
Certification Motion, finding that Plaintiffs had failed to
demonstrate that the putative class met the requisite
ascertainability, commonality and predominance requirements
necessary for class certification pursuant to Federal Rule of
Civil Procedure 23(a),(b)(3).

In doing so, this Court found

that the Plaintiffs had not properly demonstrated that the
proposed class is “readily ascertainable based on objective
criteria.”

Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437,

478 (D.N.J. 2009).

The evidence before this Court demonstrated

that Plaintiff’s proposed method of ascertaining the members of
the proposed class was unsuccessful. Carrera v. Bayer Corp., 727
F. 3d 300, 306 (3d Cir. 2013)(“A Plaintiff may not merely
propose a method of ascertaining a class without evidentiary
support that the method will be successful.”).
In addition, this Court found that the necessary file-byfile review undercuts “the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the
litigation.”
(2011).

Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2551

As such, this Court found that Plaintiffs did not

satisfy Rule 23(b)(3)’s requirements -- namely, whether “the
element of [their legal claims are] capable of proof at trial
8

through evidence that is common to the class rather than
individual to its members.”

Hydrogen Peroxide, 522 F.3d at 311-

12.
This Court’s finding is in line with other courts across
the country reviewing similar claims against FA.

See e.g.,

Slapikas v. First American Title Ins. Co., No. 06-0084, 2014
U.S. Dist. LEXIS 83323, at *15 (W.D. Pa. June 19, 2014)(denying
motion for reconsideration and holding that “[b]ecause a jury
will need to inquire into each transaction, a ‘one stroke’
resolution is impossible to achieve, making certification of a
class improper in this case.”); Loef v. First American Title
Ins. Co., No. 08-311, 2012 U.S. Dist. LEXIS 174313, at *17 (D.
Me. Dec. 10, 2012)(“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.”)(internal quotations omitted);
Boucher v. First American Title Ins. Co., No. 10-199, 2012 U.S.
Dist. LEXIS 102904, at *12-18 (W.D. Wash., July, 24
2012)(finding that “proving or disproving each class member’s
claim depends on a file-by-file review of all class members’
transactions” and that such an inquiry is “incompatible with a
class action”); Scott v. First American Title Ins. Co., 276
F.R.D. 471, 480 (E.D. Ky. 2011)(holding that “[c]ertifying a
(b)(3) class for those who paid a premium that ‘exceeded’ filed
9

rates necessitates an intensive fact-finding mission into the
circumstances of each borrowers’ refinancing transaction,” and
that the predominance requirement of Rule 23 was not met).

II.

Standard of Review:

In the District of New Jersey, Local Civil Rule 7.1(i)
governs motions for reconsideration.

Bowers v. Nat'l.

Collegiate Athletics Ass'n., 130 F.Supp.2d 610, 612 (D.N.J.
2001).

Local Rule 7.1(i) creates a procedure by which a court

may reconsider its decision upon a showing that dispositive
factual matters or controlling decisions of law were overlooked
by the court in reaching its prior decision.”

Agostino v. Quest

Diagnostics Inc., No. 04-4362, 2010 WL 5392688, at *5 (D.N.J.
Dec. 22, 2010) (citing Bryan v. Shah, 351 F. Supp. 2d 295, 297
(D.N.J. 2005); Bowers, 130 F. Supp. 2d at 612).
The “purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.”

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985) (internal citation omitted).
be granted only sparingly.
309, 314 (D.N.J. 1994).

Reconsideration is to

United States v. Jones, 158 F.R.D.

Such motions “may not be used to

relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.”

NL Indus., Inc. v. Commercial Union Ins. Co., 935 F.
10

Supp. 513, 515-16 (D.N.J. 1996) (internal citation omitted).
Third Circuit jurisprudence dictates that a Rule 7.1(i) motion
may be granted only if: (1) there has been an intervening change
in the controlling law; (2) evidence not available when the
Court issued the subject order has become available; or (3) it
is necessary to correct a clear error of law or fact to prevent
manifest injustice.

Max’s Seafood Café v. Quinteros, 176 F.3d

669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)); Agostino,
2010 WL 5392688, at *5.
Again, Rule 7.1 is clear that the Court need not look to
matters which were not originally presented, only those that may
have been "overlooked."

See Florham Park Chevron, Inc. v.

Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988).

As

such, "except in cases where there is a need to correct a clear
error or manifest injustice, '[o]nly dispositive factual matters
and controlling decisions of law which were presented to the
court but not considered on the original motion may be the
subject of a motion for reconsideration."

Pechiney, 2012 U.S.

Dist. LEXIS 114255, 2012 WL 3527721, at *3 (quoting Guinta v.
Accenture, LLP, No. 08-3776, 2009 U.S. Dist. LEXIS 4674, 2009 WL
301920, at *5 (D.N.J. Jan. 23, 2009)).

11

III. Analysis
As stated in this Court’s prior Opinion, it is the
Plaintiffs’ burden to demonstrate that a class action is a
proper vehicle for a lawsuit.

Hayes v. Wal-Mart Stores, Inc.,

725 F.3d 349, 354 (3d Cir. 2013)(citing Comcast Corp., v.
Behrend, 133 S. Ct. 1426 (2013)).

This Court previously found

that Plaintiffs in the instant matter had failed to meet that
burden.

In seeking reconsideration, Plaintiffs ask this Court

to consider many of the arguments that it already considered,
heard oral argument on, and rejected in its previous Opinion
such as: Plaintiffs’ argument that all the information needed to
calculate a premium is available in the FAST system, including
the prior loan amount; that the WINGS and STARS “premium”
amounts listed do not contain charges other than the actual
premium charged; and, that the refinance label indicates that a
transaction qualified for the Discounted Rate.

Reiterating the

same arguments is not the appropriate use of a motion for
reconsideration.

Nevertheless, because Plaintiffs continue to

distort the record, this Court will again address Plaintiffs’
arguments.
In seeking reconsideration, Plaintiffs present the
following arguments:

12

•

FA’s WINGS, FAST and STARS databases are “Business Records” as
defined by Federal Rule of Evidence 803(6) 8 and, as such,
contain all the necessary information to calculate the premium
amount under the Rate Manual. (Pls.’ Reconsideration Br. At
4).

•

Plaintiffs can rely on the “refinance” label in FA’s IT
Systems as conclusive proof that the transactions qualified
for the Discounted Rate. (Id. at 10).

•

The evidence supports an alternative class definition newly
offered by Plaintiffs. (Id. at 14).

•

Supplemental authority in the form of court decisions decided
after this Court’s previous decision support class
certification. (See e.g., Docket Nos. 242, 243 and 246).

The Court will address each of these arguments in turn.

A) FA’s WINGS FAST and STARS databases as “Business Records”
The crux of Plaintiffs’ argument that FA’s FAST, WINGS and
STARS “qualify as business records and are admissible and

8

Rule 803(6) states, in relevant part: The following are not
excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness: (6) Records of a Regularly
Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or
calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
13

reliable under FRE 803(6),” (Pls.’ Reconsid. Br. at 2), is that
these databases “contain[] all the necessary information to
compute the premium.”

(Id. at 2).

As a “business record” of

that premium, Plaintiffs contend that those databases alone
suffice in “determining which class members have been
overcharged and by how much[.]”

(Id. at 3).

In support of this

argument, Plaintiffs reiterate the arguments presented to this
Court in conjunction with their original motion for class
certification and, again, misconstrue the import of the premium
calculators in FA’s IT systems.

Again, “the rate calculators do

not determine whether a transaction qualifies for the refinance
rate and/or whether the agent properly calculated the premium
based on that rate.

Instead, the purpose of the rate

calculators was to determine whether the information entered
into the system matches what is provided by the agents (i.e.,
their cut of the premium versus FA’s).”

[Docket No. 194 at 26

(emphasis added)].
Relying on arguments and deposition testimony already
considered by this Court, Plaintiffs again assert that FAST,
contains all the data points needed to calculate the premium
despite testimony of their own expert to the contrary.

See

e.g., Mr. Pakter, Jan. 9, 2014, Hearing Tr. 63:13-16 (“Q: And
there is no data in FAST in the spreadsheet that you analyzed
that shows a prior loan amount. That’s what you testified to,
14

right? A: Correct.”).

In addition, Plaintiffs argue that WINGS

and STARS contain all the information needed to calculate the
premiums.

Again, such arguments were considered and rejected

previously by this Court because they were just not supported by
the evidence.

See Docket No. 194 at p. 9 (finding that the

testimony supported the conclusion that the “premium” amounts
listed in STARS and WINGS often contain other charges).
Notably, this Court never ruled that FA’s IT systems were
either hearsay, inadmissible or unreliable per se.

By pointing

to the IT systems as admissible business records and party
admissions, Plaintiffs beg the fundamental question: business
records and/or party admissions of what?

The evidence presented

in this case reveals that these business records/admissions are
not records or admissions of facts critical to class
certification – i.e., whether a transaction qualified for the
Discounted Rate in the first instance and the existence of the
four data points needed to calculate an overcharge, if any.
Plaintiffs have presented no evidence or arguments overlooked by
this Court that demonstrate that the databases suffice to
successfully ascertain class members, see Carrera v. Bayer
Corp., 727 F. 3d at 306, or show how the putative class members’
legal claims meet the commonality and predominance requirements
rendering them “capable of proof at trial through evidence that

15

is common to the class rather than individual to its members.”
Hydrogen Peroxide, 522 F.3d at 311-12.

B) Plaintiffs can rely on the “refinance” label alone
Plaintiffs’ most superficially appealing argument is that they
are entitled to rely on the “refinance” label in the IT systems
as conclusive proof that the transactions met all of the
criteria discussed above to qualify for the Discounted Rate.
Plaintiffs contend that “[i]f FA can rely on the databases and
the information they contain . . . so can Plaintiffs.”
statement, again, misses the point.

This

The evidence demonstrates

that the refinance label is not dispositive of whether the
transaction actually qualified for the Discounted Rate.

See

e.g., supra at p. 5 n.6; testimony of Mr. Pakter, Jan. 9, 2014,
Hearing Tr. 67:20-21 (“the database [meaning FAST] is silent on
those attributes of what constitutes a refinance”).

Moreover,

FA did not rely on that label for the purpose of determining
which transactions qualified for the Discounted Rate and whether
that rate was properly applied in calculating the premium.
Instead, as discussed in this Court’s prior Opinion, FA checked
remittances from agents to ensure the proper split only and
relied on its random audit process of agent files to determine
whether the proper rate was being applied to transactions that
qualified for the Discounted Rate.
16

This audit process involves a manual review of the
underlying agent files to “determine what type of
transaction it was, was it a purchase or refinance, [and
to] determine what rate structure was used.” (Deposition
of Edward Foma 14:13-17).
Docket No. 194 at 10 (emphasis added).
Again, the evidence presented in this case demonstrates
that the label used is not dispositive.

This was made most

clear by Defendant’s expert, Dr. Strombom, who demonstrated
that, when a review of the underlying files of “potential
overcharges” identified by Plaintiffs’ expert from a sample in
the WINGS and STARS systems were actually reviewed, Plaintiffs’
expert was incorrect 94 percent of the time. (See Jan. 9, 2014,
Hearing Tr. 111:9-19)(86 percent of the sample had no overcharge
at all and in 8 percent the overcharge was less than Plaintiffs’
expert identified).

Tellingly, Plaintiffs do not address these

findings in their Motion for Reconsideration.

Plaintiffs do,

however, note that with respect to 40 potential overcharges
identified by their expert in the FAST system, Dr. Strombom only
found that 12 were not overcharges at all.

Plaintiffs contend

that Dr. Strombom is incorrect as to 3 of these 12.

Notably,

during the hearing on class certification, Plaintiffs’ attempt
to question Dr. Strombom about these particular “errors” was
unsuccessful as it was not possible for either the Court or the
expert to tell from the information provided by Plaintiffs

17

whether the transactions under review were the same.

(See

Hearing Tr. 177: 3-7). 9
Finally, Plaintiffs are fundamentally incorrect when they
argue that “the existence of database fields setting forth
calculated premium is all that Plaintiffs must show at this
stage.” (Pls.’ Reconsid. Reply at 6).

This argument fails to

appreciate the burden Plaintiffs must carry at the class
certification stage: to actually demonstrate via evidence that
the method of ascertaining class members will be successful.
See Carrera, 727 F. 3d at 306, 311 (“A Plaintiff may not merely
propose a method of ascertaining a class without evidentiary
support that the method will be successful[,] [and] assurances
that a party ‘intends or plans to meet the requirements’ are
insufficient to satisfy Rule 23.”). 10

9

The Court: you’d have to establish that with the witness,
if they are the same files.
Plaintiffs’ Counsel: Can you tell whether this is the same
transaction?
Dr. Strombom: I cannot.
10

That is not to say that Plaintiffs must identify the actual
names of class members. See Carrera, 727 F.3d at 308 n.2
(“Although some evidence used to satisfy ascertainability, such
as corporate records, will actually identify class members at
the certification stage, ascertainability only requires the
plaintiff to show that class members can be identified.”); see
also, Carrera, 727 F.3d 300 (3d Cir. 2013), reh’g denied, No.
12-2621, slip. op. (J. Ambro, dissenting). To the extent this
Court previously referred to ability to identify “actual class
members,” this Court clarifies that it was referring to the
Plaintiffs’ burden to supply evidentiary support that their
method of identifying class members would actually be
18

Plaintiffs’ inability to meet this burden was bolstered by the
testimony of their own expert at oral argument:

Q: So in your original report you provided potential
overcharges, not actual overcharges, at least with
regard to those several queries you mentioned; is that
correct?
A. The queries are all potential overcharges.
Q. Why?
A. Because I would need an additional process and/or
data to determine if it was an actual overcharge.
(Jan. 9, 2014, Hearing Tr. 87:14-20).
Again, Plaintiffs have presented no arguments or evidence
that this Court overlooked in their motion demonstrating that
reconsideration is necessary to correct a clear error of law or
fact to prevent manifest injustice.

Max’s Seafood Café v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

This Court,

therefore, maintains its ruling that Plaintiffs proposed class

successful. [Docket No. 194 at 33]. This Court did not hold that
Plaintiffs’ class certification motion failed because they could
not provide the identities of actual class members. Instead,
and as reiterated above, Plaintiffs proposed a method of
ascertaining the class without evidentiary support that the
method would be successful. In addition, per the dictates of
the commonality and predominance requirements of Rule 23(b)(3),
the file-by-file review needed to determine whether an
individual qualified for the Discounted Rate and was overcharged
demonstrates that the critical element of the proposed class’
legal claims is not “capable of proof at trial through evidence
that is common to the class rather than individual to its
members.” In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d
305, 311-12 (3d Cir. 2008). Thus, class certification is
inappropriate.

19

fails to meet the ascertainability, commonality and predominance
requirements needed for certification under Rule 23.

C) Alternate Class Definition
In the alternative to the arguments already presented,
Plaintiffs offer at this juncture a revised class definition
including: “persons for whose mortgage refinancing transactions
the WINGS, STARS, or FAST databases, on their face, show a
calculated premium amount.”

(Pls.’ Reconsid. Reply Br. at 14).

For the reasons discussed at length above, this revised class
definition suffers from the same infirmities as the original
class definition: it fails to account for the issue of
identifying whether the transactions at issue actually qualified
for the Discounted Rate and fails to account for the problems
discussed above with the calculated premium fields in the
databases.

As discussed, the refinance label in the databases

has been shown not to be a sufficiently reliable indicator of
whether the transaction qualified for the Discounted Rate.

D) Supplemental Authority
Finally, this Court has reviewed all of the parties’
submissions of supplemental authority submitted after the
briefing on the Motion for Reconsideration [see Docket Nos. 234248], most of which contain case law that does not break new

20

ground in the area of class certification generally, or with
respect to this case specifically. 11

See e.g., Docket No. 243,

discussing the Kirk v. First American Title Co., No. BC 372797
(Sup. Ct. Ca. 2014)(accepting plaintiff’s argument that the FAST
database had enough information to calculate a class-wide damage
award based on California law but noting that the defendant’s
argument that a loss must be proven as to each class member “has
some support in the federal cases it cites.”). 12
This Court notes that the supplemental submissions
regarding the Third Circuit’s denial of a rehearing en banc in

11

In addition, Plaintiffs use the supplemental submissions to,
yet again, raise the same vague spoliation accusation raised in
their reconsideration reply brief. [Docket No. 236]. This is
not the appropriate manner to raise this allegation and
Plaintiffs have not addressed any of the factors required to
support a finding of spoliation. See e.g., Bull v. United
Parcel Service, 665 F.3d 6, 73 (3d Cir. 2012)(finding that, in
conjunction with other factors, a finding of bad faith is
pivotal to a spoliation determination.). In addition,
Plaintiffs submit a new, and untimely, certification by their
expert, Mr. Pakter, which breaks no new ground, as it relies on
the assumption, discussed above, that the refinance label in the
IT systems necessarily means the transaction qualified for the
Discounted Rate. See e.g., Docket No. 242 at ¶ 9 (“I understand.
. .that the rate category “NJRefiSubBasic”, as reflected on
First American’s databases, indicates that the refinance rate is
the applicable rate for the particular transaction).
12

The Kirk decision is also distinguishable as it deals with
fees related to escrow services provided by FA’s wholly-owned
subsidiary, First American Title Company. Moreover with respect
to FAST, the Kirk court held that one could identify “who
ultimately paid the sub-escrow charge [thus], the Court [found]
that it is sufficiently accurate to calculate restitution to the
sub-escrow subclass.” As discussed above, the databases at issue
in this matter lack indicators of several factors needed.
21

Carrera, 727 F.3d 300 (3d Cir. 2013), reh’g denied, No. 12-2621,
slip. op. (3d Cir. May 2, 2014), serve to bolster this Court’s
prior determination that class certification was inappropriate.
In addition, this Court, addressing the concerns of the
dissenting judges, notes that the decision to deny class
certification relies on more than the issue of ascertainability
and also rests heavily on the commonality and predominance
problems the file-by-file review presents; Plaintiffs have
failed to satisfy the requirement that their legal claims be
“capable of proof at trial through evidence that is common to
the class rather than individual to its members.”

Hydrogen

Peroxide, 522 F.3d at 311-12.
Finally, with respect to Supreme Court’s recent decision in
Halliburton Co., v. Erica P. John Fund, Inc., 189 L. Ed. 2d 339
(2014), this Court finds that the Supreme Court’s decision
supports this Court’s prior conclusion to the extent the Court
reiterated that “plaintiffs wishing to proceed through a class
action must actually prove—not simply plead—that their proposed
class satisfies each requirement of Rule 23, including (if
applicable) the predominance requirement of Rule 23(b)(3).”
at 355.

Id.

Otherwise, the Halliburton decision is grounded in the

very specific circumstances of determining “whether securities
fraud defendants may attempt to rebut the Basic [v. Levinson,
485 U.S. 224 (1998)] presumption at the class certification
22

stage with evidence of a lack of price impact [and] to
reconsider the presumption of reliance for securities fraud
claims . . . adopted in Basic.”); such concerns are inapplicable
in the instant case.

IV.

Conclusion

For the reasons set forth above, this Court will deny
Plaintiff’s Motion for Reconsideration.

An appropriate Order

will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:

July 30, 2014

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