Brown v. Mid-America Apartment Communities, Inc. et al

Filing 97

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Motion to Certify Class filed by Nathanael Brown, 57 Report and Recommendations. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
NATHANAEL BROWN, for himself and
all others similarly situated,
Plaintiff,
v.
MID-AMERICA APARTMENTS, LP, as
successor in merger to POST APARTMENT
HOMES, LP d/b/a POST SOUTH LAMAR,
POST EASTSIDE, POST PARK MESA,
POST GALLERY, POST WEST AUSTIN,
POST SIERRA AT FRISCO BRIDGES,
POST KATY TRAIL, POST ABBEY,
POST ADDISON CIRCLE, POST COLE’S
CORNER, POST BARTON CREEK,
POST HEIGHTS, POST LEGACY, POST
MERIDIAN, POST MIDTOWN SQUARE,
POST SQUARE, POST UPTOWN
VILLAGE, POST VINEYARD, POST
VINTAGE; and MID-AMERICA
APARTMENT COMMUNITIES, INC., as
general partner of MID-AMERICA
APARTMENTS, LP;
Defendants.

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1:17-CV-307-RP

ORDER
Before the Court is the report and recommendation of United States Magistrate Judge Mark
Lane, (Dkt. 57), concerning Plaintiff Nathanael Brown’s (“Brown”) Motion for Class Certification,
(Dkt. 26). Also before the Court are the timely objections filed by Defendants Mid-America
Apartments, LP and Mid-America Apartment Communities, Inc. (collectively, “Defendants”). (Dkt.
60).
This case was referred to Magistrate Judge Lane for a report and recommendation on the
merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d)

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of Appendix C of the Local Rules of the United States District Court for the Western District of
Texas.
In his report and recommendation, Magistrate Judge Lane recommends that the Court grant
Brown’s motion and certify the proposed class. (R. & R., Dkt. 57, at 21). Having considered the
parties’ submissions, the record, and the applicable law, the Court will adopt the report and
recommendation.
I. BACKGROUND
This case concerns apartment late fees. Brown is a former tenant in of the Defendants’
apartment properties in Austin, Texas. (Id. at 2). Defendants (and their predecessors-in-interest, Post
Properties, Inc. and Post Apartment Homes, L.P.) have used a uniform, fixed late-fee policy under
which tenants are charged a late fee equal to 10 percent of their rent. (Id.). Brown was assessed a 10
percent late fee in December 2015. (Id. at 3). He alleges that the late fee was charged in violation of
Texas Property Code § 92.019 (“Section 92.019”), which requires that a late fee be “a reasonable
estimate of uncertain damages to the landlord that are incapable of precise calculation and result
from late payment of rent.” TEX. PROP. CODE § 92.019(a)(2).
Brown filed his Motion for Class Certification on February 9, 2018. (Dkt. 26). In his motion,
Brown asks the Court to certify the following class:
All persons during the class period who (i) were residential lease tenants of Postbranded apartment properties in the State of Texas under written leases (such
properties being formerly owned by Post Apartment Homes LP and affiliates and
now owned by MAA LP through merger), and (ii) were charged (and which
Defendants’ records show as paid) at least one fixed rent late fee equal to 10% of
their monthly rent.
(Mot. Class Cert., Dkt. 26, at 12). The proposed Class Period is defined as April 10, 2013, through

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September 30, 2017. (Id. n.7). The proposed class excludes certain individuals. 1
Magistrate Judge Lane found sufficient grounds to certify Brown’s proposed class and
recommended that the Court grant Brown’s motion. (R. & R., Dkt. 57, at 21). Defendants then
timely filed objections to parts of the report and recommendation. (Objs., Dkt. 60).
II. LEGAL STANDARDS
A. Federal Magistrates Act
Under federal statute and the Federal Rules of Civil Procedure, magistrate judges may make
findings and recommendations on dispositive motions. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b)(1). Motions for class certification are dispositive motions under the Federal Magistrates Act.
Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 763 (5th Cir. 2016) (citing 28 U.S.C. § 636(b)(1)(A)).
For dispositive motions, parties are entitled to de novo review of any part of the magistrate judge’s
report and recommendation that has been properly objected to. Fed. R. Civ. P. 72(b)(3). A district
court can review those portions of the report and recommendation to which no timely objections
have been filed for clear error. See Fed. R. Civ. P. 72 advisory committee’s note (“When no timely
objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”).
B. Class Certification
Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a) imposes
four prerequisites on plaintiff-putative class members seeking certification of a class: (1) numerosity,
i.e., a class so large that joinder of all members is impracticable; (2) commonality, i.e., that there are
The proposed class excludes the following persons: (i) the judge(s) assigned to this case and his or her staff; (ii)
governmental entities; (iii) Defendants and their affiliates; (iv) persons adjudged to be bankrupt during the class period;
(v) persons who previously released Defendants (and Post) of the claims raised by this case; and (vi) persons who
abandoned their apartment units without paying rent or who were evicted by Defendants (or Post) for nonpayment of
rent. (Mot. Class Cert., Dkt. 26, at 12 n.7).

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questions of law or fact common to the class; (3) typicality, i.e., that the named plaintiffs’ claims or
defenses are typical of those of the class; and (4) adequacy of representation, i.e., that the
representatives will fairly and adequately protect the interests of the class. Ackal v. Centennial
Beauregard Cellular L.L.C., 700 F.3d 212, 216 (5th Cir. 2012) (quoting Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 613 (1997)).
Additionally, if a plaintiff seeks class certification under Rule 23(b)(3), he must also
demonstrate (1) predominance, i.e., “that questions common to the class members predominate
over questions affecting only individual members”; and (2) superiority, i.e., “that class resolution is
superior to available methods for fairly and efficiently adjudicating the controversy.” Ackal, 700 F.3d
at 216 (quoting Feder v. Elec. Data. Sys. Corp., 429 F.3d 125, 129 (5th Cir. 2005)).
Finally, the Fifth Circuit has interpreted Rule 23 to contain an implied prerequisite of
ascertainability. “Although the text of Rule 23(a) is silent on the matter, a class must not only exist,
the class must be susceptible of precise definition. There can be no class action if the proposed class
is ‘amorphous’ or ‘imprecise.’” John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 n.3 (5th Cir.
2007); see also DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).
To determine whether class certification is appropriate, courts “must conduct intense factual
investigation,” Funeral Consumers All., Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 345 (5th Cir. 2012)
(quoting Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 420 (5th Cir. 2004)), and the “unique facts
of each case will generally be the determining factor governing certification.” Robinson, 387 F.3d. at
421. The party seeking class certification bears the burden of demonstrating that the requirements of
Rule 23 have been met. Funeral Consumers All., Inc., 695 F.3d at 345 (quoting O’Sullivan v. Countrywide
Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir. 2003)).

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III. DISCUSSION
Defendants objected to portions of the magistrate judge’s report and recommendation, and
they are entitled to de novo review of those parts of the report and recommendation. Having
conducted a de novo review of the record and applicable law where appropriate, 2 the Court agrees
with the magistrate judge’s factual findings and legal conclusions and adopts the report and
recommendation in its entirety.
In adopting the magistrate judge’s report and recommendation in full, the Court has
considered and overruled each of Defendants’ objections. The Court will discuss several of
Defendants’ objections to the magistrate judge’s findings and conclusions pertaining to
predominance, superiority, and commonality below.
A. Predominance
Defendants object to the magistrate judge’s recommendation concerning predominance.
(Objs., Dkt. 60, at 6–10). Defendants argue that the report and recommendation ignored a number
of issues that will require individualized assessment and that O’Sullivan v. Countrywide Home Loans, Inc.,
319 F.3d 732 (5th Cir. 2003), is controlling precedent for the conclusion that individualized issues
will predominate over common issues in this case. (Id. at 7–8).
Brown’s position is that Defendants’ late-fee policy is not a reasonable estimate of uncertain
damages because it is not an estimate at all. (Mot. Class Cert., Dkt. 26, at 6–7, 24). Defendants admit
that they charge a 10 percent late fee as a standard policy. (Answer, Dkt. 8, ¶ 30; Resp. Mot. Class
Cert., Dkt. 29, at 3). The 10 percent late fee is a standard policy, (Mot. Class Cert. Ex. 16, Dkt. 27-9,
at 4), and every tenant in a Post-owned property signed a lease with that late fee provision. (Sear

No party objected to the magistrate judge’s findings and recommendations concerning the proposed class’s
numerosity, typicality, or adequacy. There being no objections to these portions of the magistrate judge’s report and
recommendation, the Court reviews them for clear error and finds none.
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Decl., Dkt. 30-2, ¶ 9). Defendants admit that they have used leases containing the 10 percent late fee
provision for over a decade, well before the beginning of the proposed class period. (Resp. Pl.’s
Interrog. 3, Mot. Class Cert. Ex. 29, at 5; Sear Dep., Dkt. 26-25, at 39–40). Defendants’ designated
corporate representative does not know who decided to adopt the late fee policy or why that
unknown person chose to set the fee at 10 percent of a tenant’s rent. (Sear Dep., Dkt. 26-25, at 43–
47). Nor is there any document to support the decision to set the late fee at 10 percent. (Id. at 76).
Defendants do not argue anywhere that they set late fees on an individualized basis. In light of these
facts, the magistrate judge found that Defendants’ liability under Section 92.019 can be determined
on a classwide basis and that the common issues predominated over the individual. (R. & R., Dkt.
57, at 8, 11–14).
Defendants’ objections fail to explain why individual issues will be predominant in this
litigation. Defendants argue that Brown’s proposed class definition predicates class membership “on
fees that were paid, not just ‘charged,’” which will require individualized inquiry. (Objs., Dkt. 60, at
7). It is true that under the proposed class definition, a factfinder will need to determine if an
individual paid a late fee in order to determine whether that individual is a class member. But the
relevance of this fact issue is limited to determining class membership. The amount paid or the fact
of payment is irrelevant to the central issue of Defendants’ liability, because the amount paid is
irrelevant to liability under Section 92.019, which prohibits a landlord from charging (rather than
receiving payment of) an illegal late fee and sets damages according to the fee charged (rather than
the amount paid). TEX. PROP. CODE § 92.019(a)(2), (c). Moreover, determining potential class
members’ payment does not appear to be so complex a task that it will predominate over the
common issues concerning liability. Defendants have records of which tenants paid late fees. (See,
e.g., Mot. Class Cert., Dkt. 26, at 8–9; R. & R., Dkt 60, at 20). Determining whether a tenant paid a

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late fee can be ascertained by querying data from Defendants’ databases; identifying those tenants
will not significantly complicate the task of ascertaining class membership. (See R. & R., Dkt. 60, at
20; Vachani Decl., Dkt. 27-11; Jewell Decl., Dkt. 27-12). 3 The predominance inquiry asks whether
common issues are “more prevalent or important” than the non-common individual issues. Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). Identifying class members according to
payment is not a more prevalent or important issue than the common issues that will determine
Defendants’ liability—namely, whether Defendants conducted an estimate before setting the late fee
that appears in each proposed class member’s lease, and if so, whether that estimate is reasonable.
(See R. & R., Dkt. 57, at 7–8).
Defendants’ reliance on O’Sullivan is similarly unpersuasive. 4 The class members in O’Sullivan
alleged that a legal service provider’s reimbursement payments to a mortgage company were
kickbacks under federal law rather than permissible payments for goods or service services provided.
O’Sullivan, 319 F.3d at 736–39. The difference between a kickback and a permissible payment turned
on whether the payment bore a reasonable relationship to the market value of the goods or services
provided in exchange. Id. at 739. However, the mortgage company’s goods and services differed by
transaction. Id. at 741. To determine liability, then, a court would have had to look transaction-by-

Defendants object that the magistrate did not acknowledge obstacles to ascertainability and ignored “undisputed
testimony” from experts regarding ascertainability. (Objs., Dkt. 60, at 2, 15 n.8). On the contrary, the magistrate
considered “extensive testimony” regarding the capabilities of Defendants’ property management databases, including
expert testimony from both parties. (R. & R., Dkt. 57, at 19–20). Having considered those obstacles, the magistrate
found that the proposed class was ascertainable. (Id. at 20). The Court agrees that there is sufficient evidence—including
evidence from Defendants’ own employees—from which to conclude that Brown’s proposed class is ascertainable. (See
Mot. Class Cert. Exs. 7–8, 11-14, 21–22, and 24–26).
3

Among Defendants’ reasons for relying on O’Sullivan, their principal argument appears to be that Brown’s theory of
liability under Section 92.019 requires a prospective estimate of damages for each tenant. (Resp. Mot. Class Cert., Dkt.
29, at 18 (“Plaintiff asserts that the ‘reasonable estimate’ of damages must occur ‘prospectively’ for each tenant.”)). That
does not accurately reflect Brown’s position. While Brown argues that Section 92.019 requires a prospective estimate of
damages, (see Mot. Class Cert., Dkt. 26, at 5), he does not argue that the estimation need be individualized, and in fact
takes the position that Defendants can prove their compliance with Section 92.019 by way of common evidence, (see id.
at 18–19).

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transaction at whether each reimbursement payment bore a reasonable relationship to the goods and
services for which it was made. Id. at 742. Because liability turned on the analysis of individual
transactions, class certification was improper. Id.
Unlike O’Sullivan, the facts in this case can establish Defendants’ liability without requiring a
transaction-by-transaction analysis. Brown argues that Defendants’ late-fee policy is not a reasonable
estimate of uncertain damages because it is not an estimate at all. (Mot. Class Cert., Dkt. 26, at 6–7,
24). There is no evidence that Defendants conducted a separate estimate to determine the late fee
provision in each proposed class member’s lease; the late fee was set according to a standard policy.
If Defendants conducted an estimate, they did so once, when they considered and instituted that
policy. Whether Defendants set their standard late fee according to an estimate will be true for every
proposed class member or for none of them.
Brown also takes the position that even if Defendants’ standard late fee is the product of an
estimate, that estimate was not a reasonable one. (Id. at 24). Brown argues that the reasonability of
Defendants’ estimate is a common issue because “Defendants made no effort to distinguish the late
fees on the basis of any tenant’s particular situation” because “the late fee policy is fixed.” (Id. at 25).
Brown argues that reasonability under Section 92.019 should be determined only by reference to
facts available to the landlord before setting the late fee. (Reply, Dkt. 34, at 16 (“[R]etrospective,
after-the-fact analysis of reasonableness is not allowed by Section 92.019.”)). If Brown is correct
about how to construe Section 92.019, any evidence of reasonableness would be common to each
proposed class member because each proposed class member’s policy was set according to the same
ex ante considerations at the time Defendants considered and instituted the uniform policy. 5

Even Defendants’ evidence that they conducted a reasonable estimate of their damages before setting their late fee
policy is common to the entire class. (See Defs.’ Mot. Summ. J., Dkt. 86, at 7 (citing the declaration from a former Post

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Defendants’ reliance on O’Sullivan suggests that they believe that reasonableness under
Section 92.019 should be determined not by looking at what a landlord did before setting the late
fee, but by comparing each individual late fee and the ultimate costs resulting from that particular
late payment. 6 Depending on the facts of a particular case, such an interpretation could require
transaction-by-transaction analysis to determine liability. But here, there is no evidence that
Defendants’ late-payment costs are variable according to the tenant or that Defendants can or do
calculate their late-payment damages on an individual level. On the contrary, the evidence suggests
that Defendants do not calculate individual-level late-payment costs. (Sear Dep., Dkt. 30-1, at 78–80;
Sear Dep., Dkt. 26-25, at 81–84). In fact, Defendants’ evidence is aggregated and common to the
entire class: to prove that their late-payment damages reasonably approximate their late fee revenues,
Defendants ask the Court to consider compare their total collection costs with their total late fee
revenues. (Defs.’ Mot. Summ. J., Dkt. 86, at 18). Central to the court’s holding in O’Sullivan was the
fact that while payments were fixed, the comparative values—the market value of the goods and
services provided—were variable and transaction-specific. O’Sullivan, 319 F.3dat 741–42. In this
case, there is no evidence of transaction-level variable costs that would enable the Court to compare
a particular tenant’s late fees with the costs associated with that tenant’s late payment. Regardless of
whether the Court adopts Brown’s approach to analyzing reasonableness under Section 92.019 or
Defendants’, O’Sullivan is inapt.
Next, Defendants object that class litigation would strip them of the ability to assert defenses
and counterclaims. They argue that “nothing in § 92.019 acts to strip landlords of their right to
executive, in which he states that “Post considered the processes it utilized to collect delinquent rents from tenants”
before determining that a ten percent late fee was reasonable) (quoting Wilkes Decl., Dkt. 87-9, ¶ 6)).
Defendants’ arguments on the merits confirm that they advocate a construction of Section 92.019 under which a late
fee’s reasonableness is determined not by the quality of a landlord’s ex ante estimation of its future damages but instead
by the degree to which the late fee ultimately approximates the landlord’s damages. (See Defs.’ Mot. Summ. J., Dkt. 86, at
14–17).

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maintain an action against their tenants for breach of lease.” (Objs., Dkt. 60, at 13). Nor would
certifying Brown’s proposed class—Defendants would remain free to being separate actions against
class members. Defendants suggest that they should be able to present the defense that class
members should have mitigated their damages by not paying their rent late in the first place. (Resp.
Mot. Class Cert., Dkt. 29, at 19–20). Defendants suggest that they can assert an estoppel defense
against Brown because he “renewed his lease multiple times even after paying late-rent fees.” (Objs.,
Dkt. 60, at 9 n.2). Defendants also make conclusory reference to other defenses, such as unclean
hands and consent. (Resp. Mot. Class Cert., Dkt. 29, at 19).
These defenses make little sense in the context of Section 92.019. Section 92.019 predicates
liability on a late fee being charged pursuant to a written lease. TEX. PROP. CODE § 92.019(a)(1). The
statute therefore only applies when a tenant has breached his or her lease and when the tenant
consented to the late fee provision by agreeing to the lease. If breach of lease, mitigation, or estoppel
were applicable defenses, they would apply in every instance that a landlord would be liable under
Section 92.019 and the statute would be meaningless. Although Defendants do not describe their
consent defense, a consent defense based on payment is barred by the explicit text of the statute.
TEX. PROP. CODE § 92.019(e) (“Payment of the fee, charge, or other sum of money by a tenant does
not waive the right or remedies provided by this section.”). The Court does not agree that these
defenses will apply to Section 92.019, much less predominate in this case. 7
Finally, Defendants argue that the magistrate judge’s predominance analysis ignored the
relevance of courtesy waivers. (Objs., Dkt. 60, at 9–10; see also Resp. Mot. Class Cert., Dkt. 29, at 22–
23). Defendants argue that differences in how their employees were permitted to waive late fees
before and after their acquisition of the Post properties demonstrate that individual issues
7 Notably, in their response to Brown’s partial motion for summary judgment, (Dkt. 44), Defendants fail to assert an
estoppel defense—or any other individual defense—against Brown.

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predominate over common questions. (Id. at 10). Those differences are irrelevant. Section 92.019
imposes liability when a late fee is charged; the proposed class only includes tenants who were
charged a late fee and paid it. If Defendants waived a tenant’s fee before it was charged, that tenant
is not part of the proposed class. If Defendants charged a tenant a late fee but waived it before the
tenant paid the fee, that tenant is not part of the proposed class. Any differences among employees’
waiver practices therefore only distinguish tenants who are not included in the proposed class.
Those differences have no effect on the analysis of the proposed class members’ claims.
Two questions will drive the outcome of this litigation: did Defendants estimate their
damages before contracting with the proposed class members, and if so, was that estimate a
reasonable one under Section 92.019? (See Mot. Class Cert., Dkt. 26, at 18). Those are common
questions to the proposed class because their answers will resolve issues central to each proposed
class member’s claim in “one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). And
those common questions are more important than the individual fact questions surrounding class
membership and mechanical damages calculations. The Court agrees with the magistrate that the
common issues are predominant. (See R. & R., Dkt. 57, at 14).
B. Superiority
Defendants also object to the magistrate judge’s analysis of the superiority requirement.
(Objs., Dkt. 60, at 10–14). First, Defendants argue that the magistrate rejected the holding of Ticknor
v. Rouse’s Enters, L.L.C., 592 F. App’x 276 (5th Cir. 2014). (Id. at 11). On the contrary, the magistrate
properly considered Ticknor, which acknowledged that “the availability of attorney’s fees and
punitive damages is a common basis for finding non-superiority,” id. at 279, but did not hold that
the availability of attorney’s fees compels a finding of non-superiority. (R. & R., Dkt. 57, at 16). In
fact, the Ticknor court emphasized “the broad discretion enjoyed by district courts regarding

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certification,” which “may lead to disparate results” regarding class certification even in similar cases.
Ticknor, 592 F. App’x at 279; see also Sistrunk v. TitleMax, Inc., No. SA14CA628RPHJB, 2016 WL
9450445, at *9 (W.D. Tex. Aug. 26, 2016), report and recommendation approved, No. 5:14-CV-628-RP,
2016 WL 9450689 (W.D. Tex. Nov. 16, 2016) (certifying a class post-Ticknor despite the availability
of attorney’s fees when other factors counseled in favor of finding superiority).
Next, Defendants argue that the magistrate provided “no analysis as to how [the] case would
be tried.” (Objs., Dkt. 60, at 11). Again, this objection ignores the text of the report and
recommendation, which acknowledged the “trial plan and other evidence before the court”
suggesting that uniform evidence will be needed to establish liability across the class. (R. & R., Dkt.
57, at 17). Having considered Brown’s proposed trial plan, (Mot. Class Cert. Ex. 19, Dkt. 26-19), the
magistrate was persuaded that a single proceeding would be “the simplest and most manageable way
to address the issues in this case.” (R. & R., Dkt. 57, at 17). So, too, is this Court. As discussed
elsewhere in this order and in the report and recommendation, Defendants’ liability can be
determined according to conduct that is common to each proposed class member. (See id. at 6–8;
supra at 8, 11). If liability is established, damages under Section 92.019 are assessed according to
mechanical arithmetic. TEX. PROP. CODE § 92.019(c). The Court agrees with the magistrate’s finding
that Brown’s proposed trial plan is persuasive evidence that class proceedings would be simpler and
more efficient than a series of individual trials.
Third, Defendants object that Castano v. Am. Tobacco Co., 84 F.3d 734, 738 (5th Cir. 1996),
bears on the superiority analysis in this case. (Objs., Dkt. 60, at 12–14). Defendants point to the
following language from Castano:
The plaintiffs’ claims are based on a new theory of liability and the existence of new
evidence. Until plaintiffs decide to file individual claims, a court cannot, from the
existence of injury, presume that all or even any plaintiffs will pursue legal remedies.
Nor can a court make a superiority determination based on such speculation.

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(Id. at 12 (citing Castano, 84 F.3d at 747–48)). They ask the Court to take from that language the
global proposition that a lack of prior individual-claim litigation weighs against finding superiority.
(Objs., Dkt. 60, at 12). They object that the magistrate’s contextual reading of that language
incorrectly limits its precedential weight. (Id. at 14).
The Court agrees with Defendants that “[i]n considering the superiority requirement, a
district court must possess ‘an understanding of the relevant claims, defenses, facts, and substantive
law presented in the case.’” (Resp. Mot. Class Cert., Dkt. 29, at 16 (quoting Robinson, 387 F.3d at
425)). Otherwise, the court could not properly “consider how a trial on the alleged causes of action
would be tried.” Robinson, 387 F.3d at 425 (citing Castano, 84 F.3d at 741) (quotation marks omitted).
In certain novel cases, it might be particularly difficult to understand the causes of action or predict
the management of a trial in the absence of a track record of similar litigation. As the magistrate
recognized, Castano was complex and novel tort litigation. (R. & R., Dkt. 57, at 18). It proceeded on
a “wholly untested theory” of liability for nicotine addiction involving a nationwide class and a fourphase trial plan. Castano, 84 F.3d at 737–38. The plaintiffs asserted “eight theories of liability from
every state,” and the district court had to determine whether variations in state law defeated
predominance. Id. at 750.
These facts drove the Castano court’s concerns about the lack of prior litigation, which were
specific to the nature of that case. The court observed that “certification of mass tort litigation
classes has been disfavored” because of the pressure that class certification places on defendants to
settle. Id. at 746. That concern was “magnified” in Castano because “a mass tort cannot be properly
certified without a prior track record of trials” from which to inform the superiority analysis. Id. at
747; see also id. (“[C]ertification of an immature tort results in a higher than normal risk that the class
action may not be superior to individual adjudication”). The court therefore discounted the district

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court’s conclusion that “a class trial would preserve judicial resources in the millions of individual
trials” because “not every mass tort will result in [a] judicial crisis” and the district court had not
properly considered that a “judicial crisis may fail to materialize.” Id. The lack of a track record was
so important in Castano because the district court had based certification in a mass tort case, in part,
on an expectation of a flood of litigation that was uncertain given the untested theory of liability.
The same concern may not be present in other, less factually complex cases. Indeed, the case
Defendants cite to demonstrate the weight of Castano’s precedential value is another mass tort case
proceeding on an untested theory of liability, itself citing Castano for a mass-tort-specific premise.
Norwood v. Raytheon Co., 237 F.R.D. 581, 605 (W.D. Tex. 2006) (citing Castano, 84 F.3d at 738, 747
(“[A] mass tort cannot be properly certified without a prior track record of trials from which the
district court can draw the information necessary to make the predominance and superiority analysis
required by rule 23.”)); see also In re Norplant Contraceptive Prod. Liab. Litig., 168 F.R.D. 577, 578–79
(E.D. Tex. 1996) (describing the case as “mass tort litigation” and citing Castano for its statement
that “while the tort is immature, the class complaint must be dismissed.”)).
The Court agrees with the magistrate judge that the Castano court’s prior-litigation concerns
have at most a limited application to this case. As the magistrate points out, there are few of the legal
or factual complexity concerns here that were present in Castano. (See R. & R., Dkt. 18–19). The
question is not simply “whether novel questions exist,” (Objs., Dkt. 60, at 13 n.6); the question is
whether the novel questions are sufficiently complex that a district court would be unable to
understand the defenses or claims or predict how a trial might be managed. See Robinson, 387 F.3d at
425. The novel issues suggested by Defendants, (Objs., Dkt. 60, at 18; Resp. Mot. Class Cert., Dkt.
29, at 15), do not persuade the Court that individual litigation is superior or deprive the Court of the
ability to predict how a trial might proceed.

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As for the Defendants’ final objection on superiority, the Court agrees with the substance of
Defendants’ objection but does not find that it warrants a finding of non-superiority. Defendants
argue that the lack of evidence of other litigation by the proposed class members disfavors a finding
of superiority. (Objs., Dkt. 60, at 11-12). The Court agrees with Brown that an absence of other
litigation favors a finding of superiority, because the presence of other litigation would favor a
contrary finding. (See Reply, Dkt. 34, at 12 (citing Fed. R. Civ. P. 23 advisory committee’s note
(“[T]he court should inform itself of any litigation actually pending by or against the individuals. The
interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a
class action.”))). However, Brown has the burden to present evidence of a lack of related similar
litigation by the proposed class members and has failed to carry that burden. Accordingly, the Court
cannot make such a finding. See Sistrunk, 2016 WL 9450445, at *9.
Nonetheless, the Court agrees with the magistrate that class proceedings would be superior
to a series of individual lawsuits. The superiority analysis is “a comparative process” in which the
Court must assess “the relative advantages of alternative procedures for handling the total
controversy.” In re TWL Corp., 712 F.3d 886, 896 (5th Cir. 2013) (citations and quotation marks
omitted). The Court considers the Rule 23(b)(3) factors, but acknowledges that “no single element is
determinative.” 7AA Charles Alan Wright et al., Fed. Prac. & Proc. § 1780 (3d ed. 2005). Not only
that, but the Rule 23(b)(3) factors are not exhaustive and the court can consider “whatever other
factors it deems relevant to the determination.” TWL Corp., 712 F.3d at 895.
The Court finds that class litigation would be superior to a series of individual lawsuits based
on the desirability of concentrating the litigation of claims in a particular forum and the difficulties
likely to be encountered in the management of a class action. Based on the evidence before the
Court at this stage, it appears that Defendants’ liability will turn on questions of statutory

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interpretation and resolutions of fact disputes that are common to each proposed class member.
Through the parties’ considerable litigation of this case, the Court is familiar with the facts of
Defendants’ conduct that will be relevant to every proposed class member’s claim. Through this
litigation and other recent late-fee cases, this Court is familiar with the legal arguments relevant to
Section 92.019. See Complaint, Cleven v. Mid-American Apartment Cmtys., Inc., 1:16-CV-820-RP (W.D.
Tex. Aug. 23, 2017); Complaint, Dominguez v. Mid-American Apartment Cmtys., Inc., 1:15-CV-239-RP
(W.D. Tex. Apr. 17, 2015). Brown has proposed a litigation plan that the Court finds to be
reasonable, manageable, and superior to multiple individual actions. Multiple proceedings in
different forums would not only be inefficient but would create the risk of inconsistent verdicts. The
Court finds that a single proceeding is the simplest, most efficient, and most manageable way to
address the issues in this case.
C. Commonality
Finally, Defendants object to the magistrate’s recommendations regarding commonality.
(Objs., Dkt. 60, at 14–15). Defendants argue that the legality of their late-fee policy cannot be a
common question because Section 92.019 applies only to late fees and not to uniformly applied
policies. (Id. at 15). The formalism of that position in unpersuasive given the facts of this case.
Defendants chose to set their late fees according to a standard policy. Any individual late fee charged
to a proposed class member will therefore be reasonable estimates of uncertain damages only if the
policy was a reasonable estimate of uncertain damages. That determination will be true or untrue for
each class member in one stroke.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Magistrate Judge Lane’s report and
recommendation, (Dkt. 57), is ADOPTED. Brown’s Motion for Class Certification, (Dkt. 26), is

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GRANTED. Defendants’ objections, (Dkt. 60), are OVERRULED. The Court certifies the
following class pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3) and 23(c)(1)(B):
All persons during the class period who (i) were residential lease tenants of Postbranded apartment properties in the State of Texas under written leases (such
properties being formerly owned by Post Apartment Homes LP and affiliates and
now owned by MAA LP through merger), and (ii) were charged (and which
Defendants’ records show as paid) at least one fixed rent late fee equal to 10% of
their monthly rent.
The class period is defined as April 10, 2013, through September 30, 2017. The class excludes: (1)
the judge(s) assigned to this case and his or her staff; (2) governmental entities; (3) Defendants and
their affiliates; (4) persons adjudged to be bankrupt during the class period; (5) persons who
previously released Defendants (and Post) of the claims raised by this case; and (6) persons who
abandoned their apartment units without paying rent or who were evicted by Defendants (or Post)
for nonpayment of rent.
The Court appoints Plaintiff Nathanael Brown as Class Representative. The Court appoints
the Monts Firm, the Snell Law Firm, PLLC, and R. Martin Weber, Jr. and Richard E. Norman of
Crowley Norman LLP as class counsel (collectively, “Class Counsel”), finding that they are adequate
after considering the factors provided in Rule 23(g). The Court finds that the Class Representative
and Class Counsel will fairly and adequately represent the interests of the class.
SIGNED on September 5, 2018.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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