Order Granting in Part Plaintiffs’ Motion for Class Certification
Re: Dkt. Nos. 164, 192
Before the Court is plaintiffs Latara Bias, Eric Breaux, and Troy Morrison’s (collectively, “Plaintiffs”) motion for class certification. (Dkt. No. 164, “Mtn,”)
I. Factual Background
Defendants Wells Fargo & Company and Wells Fargo Bank, N.A. (collectively, “Defendants” or “Wells Fargo”) service home mortgage loans. In this role, Defendants are responsible for providing certain services to protect a mortgage lenders’ interest in the property securing the loan. Among those services are Broker’s Price Opinions (“BPOs”), which are informal appraisals that Wells Fargo ordered when borrowers went into default on them loans. (Dkt. 176-1 ¶ 4.) In approximately 2001, Wells Fargo began ordering BPOs through an internal group named Premiere Asset Services (“PAS”), (Id. ¶ 9.) Wells Fargo would then charge borrowers for the BPO in an amount greater than the amount PAS paid to a third party broker for the raw opinion. (See Dkt. No. 186-2, “Supp. Pifko Deck,” Exh. 37 at 316; id., Exh. 38 at 321; id., Exh. 42 at 368.) Said otherwise, Wells Fargo added a mark-up to the BPO cost, above the amount PAS spent on the service, which it then charged borrowers. BPO valuation services had a mark-up of between $25 and $40 per service over the class period. (Supp. Pif-ko Deck, Exh. 37 at 316.) At all relevant times, BPO charges assessed to borrowers’ accounts were not reflected on the borrower’s monthly mortgage statement. (Dkt. No. 164-2, “Pifko Deck,” Exh. 22 at 146-48.) Wells Fargo ceased its practice of using PAS to perform BPOs and marking up BPO charges in July 2010. (Id., Exh. 13 at 37.)
Wells Fargo serviced the mortgages of named Plaintiffs, who now challenge Defendants’ practice of charging borrowers for BPO costs without disclosing the marked-up nature of same.
II. Plaintiffs’ Proposed Class Definitions and Claims
Plaintiffs move to certify two nationwide classes:
1. Assessed Class
All residents of the United States of America who had a loan serviced by Wells Fargo Bank, N.A or its subsidiaries or divisions, and whose mortgage accounts were assessed, but who have not paid, for one or more Broker’s Price Opinions charged by Wells Fargo, through PAS, from January 1, 2002 through July 1, 2010.
2. Paid Class
All residents of the United States of America who had a loan serviced by Wells Fargo Bank, N.A. or its subsidiaries or divisions, and who paid for one or more Broker’s Price Opinions charged by Wells Fargo, through PAS, from January 1, 2002 through July 1, 2010.
(Mtn. at 6.) Plaintiffs seek to certify the Assessed Class as an injunctive relief class pursuant to Federal Rule of Civil Procedure 23(b)(2), and the Paid Class as a damages class pursuant to Rule 23(b)(3). The Assessed Class seeks injunctive relief under California’s Unfair Competition Law (“UCL”) only. By contrast, the Paid Class asserts four separate claims for relief. Plaintiffs seek to recover damages on behalf of the Paid Class for: (1) unjust enrichment under the laws of the fifty states; (2) violation of the civil RICO statute, specifically 18 U.S.C. section 1962(c); (3) fraud under California law; and (4) violation of the UCL.
Plaintiffs, who are all residents of Louisiana, ask the Court to apply California law to their claims as well as those of a nationwide class. Thus, the Court must first determine whether California law — the UCL and California’s law of fraud — can be applied to the claims of the named Plaintiffs. The Court previously found that the choice of law analysis as announced by the California Supreme Court in Nedlloyd Lines B.V. v. Sup. Ct.,
The third step in the Nedlloyd analysis requires the Court to first determine whether Louisiana’s laws of unfair competi-tíon and fraud are contrary to a fundamental California policy. See Nedlloyd,
Thus, California’s UCL and law of fraud cannot apply to the claims of the named Plaintiffs, whose contracts provide that the laws of Louisiana govern. Accordingly, the request to certify the Assessed Class which solely brings a UCL claim is Denied.
IV. Legal Standard for Class Certification
Rule 23, which governs class certification, contains two sets of distinct requirements Plaintiffs must meet before the Court may certify either class. First, Plaintiffs must meet all of the requirements under Rule 23(a). Second, each class must meet at least one of the prongs of Rule 23(b), depending on the nature of the class.
Under Rule 23(a), the Court may certify a class only where “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; apd (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements as “numerosity, commonality, typicality and adequacy of representation.” Mazza v. Am. Honda Motor Co., Inc.,
In addition to the four requirements set forth in Rule 23(a), most courts have implied an additional threshold requirement: that the members of the class are readily ascertainable. See Xavier v. Philip Morris USA Inc.,
Once Plaintiffs establish that the threshold requirements of Rule 23(a) are met, Plaintiffs must then show “through evi-dentiary proof’ that a class is appropriate for certification under one of the provisions in Rule 23(b). Comcast Corp. v. Behrend, — U.S. -,
V. Discussion
With the exception of numerosity, Wells Fargo argues that Plaintiffs have failed to meet their burden with respect to all class certification requirements. Given the Court’s rulings infra, the class certification analysis proceeds as to the Paid Class only on the first claim for unjust enrichment and the second claim for civil RICO. The Court addresses the Rule 23(a) factors, the additional threshold requirement of ascertainability, as well as the Rule 23(b)(3) factors, with respect to the Paid Class in turn below.
A. Rule 23(a) Requirements
1. Numerosity
The numerosity requirement under Rule 23(a)(1) is undoubtedly met here and Defendants do not contend otherwise. Plaintiffs submit that more than half a million BPO charges were assessed to borrowers’ accounts by Defendants and subsequently paid by borrowers. (Pifko Decl., Exh. 17 at 98.) As a proposed nationwide class with potentially hundreds of thousands of class members residing in fifty states, the Court agrees that numerosity is satisfied.
2. Commonality
Rule 23(a)(2) requires that the party seeking certification show that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). To satisfy this requirement, a common question “must be of such a nature that it is capable of class-wide resolution — which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.” Dukes,
Here, Plaintiffs propose two commons questions as suitable for determination on a classwide basis. The first, as framed by Plaintiffs, is whether it was unlawful for defendants to charge borrowers for BPOs that were “marked up” above the amount Wells Fargo (through PAS) paid third party vendors to perform the BPOs — without disclosing the mark-up to borrowers. Wells Fargo does not contest that this fundamental question is common to all class members. Rather, Defendants argue that there is not common evidence that can be used to reach a common answer. Defendants raise two reasons why common evidence cannot be used in this case to prove whether the BPO charges were unlawfully marked up on a classwide basis. Namely, Wells Fargo argues that Plaintiffs have failed to establish that either: (i) the BPO charges were consistently marked up; or (ii) class members were subject to the same mortgage terms governing Defendants’
First, Wells Fargo argues that Plaintiffs have not satisfied them burden to show that the mark-ups can be proven with common evidence because some fees were not marked up at all, and because the amount of the mark-up varied. With respect to the existence of a mark-up, Plaintiffs point to Defendants’ 30(b)(6) witness’s testimony that BPO “pricing was consistent across — across time... it was [$126] until.. .the price changed.. .to $95.” (Supp. Pifko Deck, Exh. 38 at 321.) Moreover, an email from Wells Fargo Senior Vice President James Taylor states that the BPO valuation services had a “mark-up of $25 to $40 per service, and the gross fees vary by client but general priced as follows: Drive-By BPO $95 [and] Interior BPO $125.” (Id., Exh. 37 at 316.) Defendants’ expert, George T. Schwartz, likewise stated in his report that it was his understanding that PAS charged $125 for exterior BPOs from 2002 through 2005, and $95 from 2006 through June 2010. (Id., Exh. 42 at 358.) This common evidence, applicable elasswide, supports Plaintiffs’ theory that Defendants charged borrowers a uniform cost for BPOs without regard to the actual amount it paid a third party for the service. In opposition, Defendants point to testimony that “some BPO fees... were equal to the amount.. .paid” by defendants. (Dkt. No. 176-6, “Tiska Deck,” ¶8.) That there may have been instances in which the rule did not result in a mark-up, however, does not defeat commonality. Plaintiffs presented sufficient evidence of a common practice by Wells Fargo. Nothing more is required at this stage. See Dukes,
Wells Fargo also argues that variation in the amount of the mark-ups across the class should defeat commonality. This argument does not persuade. Principally, Wells Fargo does not articulate why the size of the mark-up is relevant to the commonality analysis. Defendants seem to misconstrue Plaintiffs’ theory of liability. Under Plaintiffs’ theory of their case, it is the existence of the mark-up, and not its amount, which is determinative of Defendants’ liability. Furthermore, Plaintiffs seek to recover the entire amount of the BPO charge paid by class members and not just the amount of the mark-up. Wells Fargo counters that Plaintiffs are only entitled to the amount of the mark-up should they prevail on liability. Even assuming, arguendo, that Wells Fargo is correct and Plaintiffs’ damages are limited to the amount of the mark-up, the Court cannot decline to certify a class simply because the damages inquiry will be individualized. Leyva v. Medline Industries, Inc.,
Second, Wells Fargo points to variations in mortgage terms nationwide and across time to argue that Plaintiffs have not shown that defendants’ conduct was governed by uniform contractual (mortgage) terms. Indeed, Wells Fargo serviced “loans secured by a wide variety of mortgages ... [including] Fannie Mae/Freddie Mac mortgages” in addition to “mortgages documented on FHA or Veterans Affairs forms, or other less common mortgages.” (Oppo. at 9:13-16; Dkt. No. 176-1, “Jones Deck,” ¶¶ 17, 20.) Defendants point to several variations among mortgage forms to argue that not all class members signed mortgages “with the same material provisions.” (Id. at 10:11-12.) Critically, though, Wells Fargo does not identify any provision in any of the numerous mortgage forms it puts in front of the Court that would
Wells Fargo cites several eases denying class certification of nationwide mortgagor classes in support of their argument. Again, Defendants’ reliance on these eases disregards Plaintiffs’ theory of liability. Each of the cases cited by Wells Fargo involved putative classes asserting claims for breach of contract. And, certification was denied in whole or in part due to specific variations in mortgage contracts that were material in the context of that case. For example, in Gustaf-son v. BAC Home Loans Servicing, LB, the court denied certification of a class of nationwide mortgagors because the “mortgage contracts at issue... containe[ed] numerous material variations of the provision that serves as the basis for Plaintiffs’ breach of contract claim.”
Finally, Plaintiffs suggest a second common question with respect to the liability of each Wells Fargo entity. Specifically, Plaintiffs point to whether the two defendant entities — Wells Fargo & Company and Wells Fargo, N.A. — can each be held liable for the conduct of marking up the BPO charges. Plaintiffs argue that because this question focuses on the actions of Defendants and does not vary by class member it is amenable to classwide determination. The Court agrees. Although it is not clear that this is the sort of question that would ultimately drive the resolution of the litigation and support commonality on its own, it does lend further support to the Court’s conclusion that commonality is met here.
For the foregoing reasons, the Court finds that Plaintiffs have satisfied the commonality inquiry for the Paid Class, properly narrowed to include only those borrowers who paid a BPO charge in an amount greater than the amount Wells Fargo (through PAS) paid a third party vendor.
3. Typicality
To satisfy typicality, Plaintiffs must establish that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). “The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover N. Am., LLC,
Wells Fargo did not specifically address the Rule 23(a)(3) typicality requirement in its opposition papers. Instead of conceding the point, Wells Fargo claims that “the same factual [bases] that mean they are not typical are the reasons [Defendants] addressed in terms of commonality.” (Dkt. No. 197 at 15:13-17.) For the same reasons the Court finds that commonality is met, the Court finds that the interests of the named Plaintiffs are typical of the interests of the class. See Wolin,
4. Adequacy
The final hurdle to certification under Rule 23(a) requires Plaintiffs to demonstrate that they will fairly and adequately protect the interests of them class. Fed. R.Civ.P. 23(a)(4). To determine whether Plaintiffs will be adequate class representatives, the Court must consider “(l)[whether] the representative plaintiffs and them counsel have any conflicts of interest with other class members, and (2) [if] the representative plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.” Staton v. Boeing,
Wells Fargo only attacks the adequacy of Plaintiffs as class representatives insofar as Plaintiffs are purportedly not familiar with the facts of their case. Specifically, Wells Fargo contends that Plaintiffs Bias, Breaux, and Morrison each demonstrated at their depositions that they have “no understanding of their claims.” (Oppo. at 35:18.) While Wells Fargo is correct that a court should consider a class representative’s familiarity with the facts of their case, courts in this District have followed a “standard of ‘striking unfamiliarity’ to assess a representative’s adequacy in policing the prosecution of his or her lawsuit.” Welling v. Alexy,
In fact, Plaintiffs demonstrated at their depositions that they have a general understanding of their claims: Wells Fargo charged borrowers more for BPOs than defendants paid third parties to perform them. Plaintiffs’ inability to recount the dates on which BPO charges were assessed by defendants is unavailing. So too is their understandable confusion as to what, exactly, a BPO is. Wells Fargo attempts to disqualify Plaintiffs for providing inartful explanations of their claims and roles in this litigation, but “[i]t would be unfair to deny [Plaintiffs] access to our courts merely because [they] are unable to articulately respond to questions from attorneys.” Parrish v. Nat’l Football League Players Ass’n,
B. Whether The Paid Class Is Ascertainable
To establish ascertainability for purposes of class certification, Plaintiffs must demonstrate that: members of the proposed class are readily identifiable by objective criteria, and it is administratively feasible to determine whether a particular person is a member of the class. Xavier,
Wells Fargo produced in this case a database of loan records data contain
Even if a file-by-file review were required to identify borrowers who paid a BPO charge, the Paid Class would still be ascertainable. In a proposed class action involving Wells Fargo loan payment data, a class of borrowers was certified despite Wells Fargo’s similar protestations that determining payment would render identification of class members administratively infeasible. See Lane,
Wells Fargo also complains that the classes are overbroad because they include persons who suffered no injury. See Mazza,
C. Rule 23(b)(3) Requirements
Rule 23(b)(3) contains two requirements. First, Plaintiffs must “establish that the questions of law or fact common to class members predominate over any questions affecting only individual members,” ie. predominance. Second, Plaintiffs must show superiority, or “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.Civ.P. 23(b)(3).
“Considering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co.,
a. Nationwide Unjust Enrichment Claims
Plaintiffs submit that a nationwide unjust enrichment class does not present issues of predominance. They baldly claim no material state-by-state variation exists such that a nationwide class could not adequately and efficiently try its unjust enrichment claims in this Court. It is true that district courts— including courts in this District — have certified nationwide unjust enrichment classes. Plaintiffs, though, cannot point to a single case in this Circuit to do so since the Ninth Circuit addressed the issue in Mazza v. American Honda Motor Co., Inc.,
Undeterred, Plaintiffs cite several post-Mazza district court decisions in support of certification. The cases they cite, however, address a separate holding announced in Mazza. Specifically, Plaintiffs conflate Mazza’s holding with respect to the extraterritorial application of the UCL on the one hand, and certification of nationwide unjust enrichment claims on the other. The post-Mazza cases cited by Plaintiffs do not address the Ninth Circuit’s unequivocal statement that unjust enrichment laws vary materially from state to state. Rather, they address the case-by-case analysis the Ninth Circuit said was required when doing a choice of law analysis to determine whether extraterritorial application of the UCL is appropriate. See, e.g., Forcellati v. Hyland’s, Inc.,
Accordingly, certification of a nationwide unjust enrichment class is improper under Rule 23 because material variations in state law would predominate. See Mazza,
b. RICO Claim
To prevail on their RICO claim, Plaintiffs will have to establish that (1) Wells Fargo violated 18 U.S.C. section 1962(c), i.e., a RICO violation, (2) the violation caused an injury, and (3) damages. See 18 U.S.C. § 1964(c). To prove that Wells Fargo violated Section 1962(c), in turn, Plaintiffs will have to show:
(i.) Wells Fargo is a person as defined in 18 U.S.C. section 1961(3);
(ii.) Wells Fargo conducted or participated in the complained of conduct;
(iii.) Wells Fargo’s participation in the conduct is part of an enterprise as defined in 18 U.S.C. section 1961(4); and
(iv.) Wells Fargo’s participation in the enterprise was performed through a pattern of racketeering activity as de*541 fined in 18 U.S.C. sections 1961(5), (D(B).
Plaintiffs argue, and Wells Fargo does not contest, that the first three elements are particularly amenable to class certification because they focus on Defendants’ conduct, and not that of class members. The Court agrees. These questions do not implicate any individual inquiry. Whether Defendants are persons who engaged in conduct that was part of an enterprise within the meaning of the statute can be determined class-wide without any individualized issues that could predominate.
With respect to the fourth element, the racketeering activities in which Plaintiffs seek to prove Wells Fargo engaged are mail fraud and wire fraud as defined in 18 U.S.C. sections 1341 and 1343, respectively. Wells Fargo focuses on this last requirement, arguing that certification is improper because individual issues predominate on fraud. In particular, Wells Fargo argues that whether a class member was exposed to a misrepresentation, or relied on that misrepresentation, will require presentation of individual evidence.
Defendants’ first argument concerning misrepresentations, i.e. that the RICO claim requires individualized proof of misrepresentations, is misplaced. Defendants assert that there is no uniform misrepresentation because the monthly statements that Wells Fargo sent to borrowers did not contain BPO charges. (See Dkt. No. 176-11, “Saelao Deck,” Exh. E at 85:1-8.) According to Defendants, “[borrowers were only expected to pay BPO charges at the end of their loan, usually in connection with a request for a payoff amount.” (Oppo. at 13:8-12.) Regardless of the manner in which Wells Fargo communicated the marked-up BPO charge to class members, it is undisputed that Wells Fargo never disclosed that the BPO charge include a mark-up. That omission is the misrepresentation that is at issue here. Under Plaintiffs’ theory, Wells Fargo fraudulently deceived every class member by not disclosing the mark-up, and Wells Fargo has not shown that this failure to disclose varied among class members. This is not a case, as Defendants’ claim, where the representations to borrowers differed classwide, counseling against class certification of a RICO claim. C.f. In re Countrywide Fin. Corp. Mortg. Mktg. & Sales Pract. Litig.,
Next, Wells Fargo argues that the RICO claim requires individualized proof of reliance on the misrepresentation.
c. Defenses to Liability
Wells Fargo next asserts that its affirmative defenses raise predominantly individualized issues that preclude class certification. “[C]ourts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.” Rodman v. Safeway, Inc.,
With respect to the statute of limitations defense, the Court similarly finds that individual issues do not predominate such that class certification is defeated. Significantly, variations in state statutes of limitation are irrelevant: this Order only certifies the Paid Class to bring a RICO claim. Thus, a four-year statute of limitations period will apply to all class members. See Agency Holding Corp. v. Malley-Duff & Associates, Inc.,
d. Damages Model
To satisfy Rule 23(b)(3)’s predominance requirement, Plaintiffs “must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.” Levya v. Medline Industries, Inc.,
In that regard, Plaintiffs submit the damages calculation of Dr. Marc Vellrath as a straightforward calculation of their damages directly related to the claims at issue: the allegedly improper BPO charges. As discussed above, Dr. Vellrath based his calculations on Wells Fargo’s own data. (See Vell-
2. Superiority
Lastly, the Court may certify a class under Rule 23(b)(3) only upon a finding that a class action is superior to individual suits. To make this determination, the Court considers the following four non-exhaustive factors: (1) the interests of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3)(A)-(D). “Where classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation.” Valentino v. Carter-Wallace, Inc.,
Wells Fargo argues that a class is not the superior method of adjudication here because numerous individual issues will need to be litigated, rendering trial unmanageable, relying on Zinser v. Accufix Research Institute, Inc.,
Here, by contrast, individual members do not have a great interest in controlling the litigation because the amount of damages per claimant is not large. Cf. Zinser,
Plaintiffs filed a document entitled “Plaintiffs’ Evidentiary Objections to Evidence Submitted with Opposition to Class Certification,” appended to their twenty-page reply. (Dkt. No. 185-1.) Plaintiffs’ objections were not filed in compliance with the Local Rules of this District. Pursuant to Local Rule 7-3(c), “[a]ny evidentiary and procedural objections to the opposition must be contained in the reply brief or memorandum.” Plaintiffs filed their objections as a separate document outside of their reply brief. On that basis, the objections are Denied. Accordingly, Defendants’ motion for leave to respond to Plaintiffs’ evidentiary objections (Dkt. No. 192) is Denied as Moot.
VII. Conclusion
For the foregoing reasons, Plaintiffs’ motion to certify the Assessed Class is Denied. Plaintiffs’ motion to certify the Paid Class is Granted in Part. The Court finds it appropriate to certify the Paid Class to bring a civil RICO claim under 18 U.S.C. section 1962(c), as defined below:
All residents of the United States of America who had a residential mortgage serviced by Wells Fargo Bank, N.A. or its subsidiaries or divisions, and who paid for one or more Broker’s Price Opinions charged by Wells Fargo (through PAS), for an amount greater than the amount Wells Fargo (through PAS) paid a third party vendor for the corresponding Broker Price Opinion, from February 11, 2008 through July 1, 2010.
Plaintiffs’ motion to certify the Paid Class to bring claims for unjust enrichment, fraud, and violation of the UCL is Denied.
It Is So Ordered,
This Order terminates Docket Numbers 164,192.
Notes
. The Court resolves the four administrative motions to seal documents submitted in connection with the substantive motion, via separate order entered this date.
. Should Plaintiffs propose an alternative basis for injunctive relief, the Court cautions Plaintiffs that at least two substantial hurdles to certification of the Assessed Class would remain. First, Plaintiffs ask this Court to represent a class of persons whose accounts were assessed for a BPO, but who never paid for the assessed BPO charge, i.e., the Assessed Class. Plaintiffs, however, present the Court with no evidence that they themselves would be members — much less appropriate representatives — of the Assessed Class. In other words, none of the evidence before the Court establishes that a named Plaintiff meets the proposed definition for the Assessed Class. It is axiomatic that, to certify a class, the Court must be satisfied that a named Plaintiff is a member of the proposed class. General Telephone Co. of Southwest v. Falcon,
Second, as Plaintiffs' counsel conceded at oral argument, it is not clear that the currently
. For the reasons discussed in Section III, supra, the Paid Class cannot bring UCL or California fraud claims on behalf of a nationwide class as proposed. Similarly, for the reasons discussed in Section V(D)(l)(a), infra, the Court finds that the Paid Class cannot seek relief under a theory of unjust enrichment for borrowers nationwide. Because those claims otherwise are not entitled to be certified, the Court declines to address them in the context of commonality under Rule 23(a)(2).
. As discussed above, the class definition will also include the additional criterion that a paid BPO charge included a mark-up. To the extent the Court anticipates Wells Fargo would argue that determining whether a borrower paid a BPO charge that included a mark-up would also require a file-by-file review, the Court still finds that the Paid Class is sufficiently ascertainable.
. Defendants contend, and Plaintiffs do not dispute, that a civil RICO claim requires proof of reliance. For purposes of this Order only, the Court assumes, without deciding, that reliance is a necessary element of Plaintiffs' civil RICO claim.
. Defendants also raise defenses of setoff, re-coupment, and mitigation, but wholly fail to explain how these defenses would apply to Plaintiffs' claims. Instead, Defendants generally contend that such defenses can raise predominately individualized issues in some cases. In the absence of any showing that these defenses apply here, the Court declines to address whether they affect the certification analysis. See Edwards v. First American Corp.,
. Should Plaintiffs be limited to recovery of the amount of the mark-up, Plaintiffs also submit a damages calculation that would satisfy Rule 23(b)(3) in that instance. Specifically, Dr. Vell-rath provided a methodology to quantify the amount of the mark-up using extrapolation techniques. (Vellrath Report at 94.)