MEMORANDUM
In this case, named plaintiffs, Eddie and Sharon Lester, Gilbert and Madeline Vazquez, Arthur Lucky and Angela Romano-Lucky, and Roy and Yadrisia Lamberty, seek to represent “all persons ... who purchased a new construction house ... through the Why-Rent’ program,” operated by named defendants, Gene Percudani (“Percudani”), Chapel Creek Homes, Inc. (“Chapel Homes”), Raintree Homes, Inc. (“Raintree”), Dominick P. Stranieri (“Stranieri”), Chapel Creek Mortgage Banker, Inc. (“Chapel Mortgage”), William Spaner (“Spaner”), and Chase Manhattan Mortgage Corp. (“Chase”). (Doc. 1 ¶ 1). According to plaintiffs, defendants lured customers into the Why-Rent program by advertisements of rent coverage and low monthly mortgage payments, which later proved unavailable, and enabled them to purchase consistently overpriced homes beyond their economic means by manipulating monthly tax and mortgage estimates and credit materials. Following their purchase, tax reassessments resulted in substantial in
Presently before the court is plaintiffs’ motion for class certification (Doc. 39) and defendants’ motion to strike class action allegations (Doc. 10). The motions have been briefed extensively by all parties and are now ripe for disposition.
1. Factual Background
Beginning in 1994, Percudani began running in the New York City metropolitan area radio and television advertisements for the “Why-Rent” program. (Doc. 1 ¶ 22). These advertisements offered homes in the Pocono region of Pennsylvania, an area within driving distance of New York City, for “$1,000 down and monthly payments of $685.” (Doc. 1 ¶ 23). The campaign’s slogan was “WHY-RENT When You Can Own Your Own Home For $1,000 Down and What You Pay in Rent?” (Doe. 1 ¶23).
Individuals who called the advertised toll-free number were given an appointment to discuss the program with a sales representative from Raintree,
Plaintiffs allege that Percudani, and the companies through which he operated, knew that none of those responding, who were mostly low-income renters in the New York City area, would be considered a “qualified applicant,” and that none would be entitled to the advertised prices. (Doc. 1 ¶¶ 31-32). Thus, according to plaintiffs, these statements constituted fraudulent and deceptive inducements to the consumers. (Doc. 1 ¶ 32).
At the appointments, Raintree sales representatives discussed the location of the homes in relation to New York City, features available in the homes, and the financing terms available. (Doc. 1 ¶ 33; Does. 125-126). Although sales representatives did not employ a “script” or consistent sales presentation, they consistently presented information concerning the Why-Rent program and the “Gold Key” program, under which Rain-tree offers to pay the consumer’s current monthly rent in exchange for the consumer paying a set monthly fee directly to Raintree during the year in which it would take to build the home. (Doe. 1 ¶¶ 33-35; Does. 125-126). These payments are ostensibly accumulated in a fund to be applied towards a down payment on the constructed home. (Doc. 1 ¶35).
After the customer enters into a contract for the construction of a home, employees of Chapel Mortgage, also controlled by Percu-dani, provide the individual with a “good-faith estimate” of the mortgage payments, an amount that is “always higher than the $685 per month promised in the advertisements.” (Doc. 1 ¶45). Chapel Mortgage employees also request from the customer a loan application and credit history, and these employees allegedly eliminate any “blemishes” on these documents before submitting an application to Chase,
At closing, customers learn that their actual mortgage payment will be significantly higher than the “good-faith estimate” previously provided, but, “[a]t this point, [they have] no option other than to close on the loan ... for fear of losing a substantial sum of money already paid” to Raintree and other defendants. (Doc. 1 ¶ 60). The customer is also informed of the amount of their- escrow payments. However, Chase determines the customer’s monthly payments based on “the assessment of property as undeveloped land (notwithstanding the fact that a completed house now exists on the property), and[,] as a result, the tax figures contained in the settlement sheet are unreasonably and unrealistically low.” (Doc. 1 ¶ 59).
Customers execute a promissory note and mortgage, which is sold immediately to Chase. Chase then pays the inflated sales value to Percudani, Raintree, or Chapel Mortgage, “thereby allowing [these entities] to profit from their fraud.” (Doc. 1 ¶ 63). Chase, in turn, sells the loan to another entity under a pooling agreement, allowing it to recover the principal of the loan and additional premium payments. (Doc. 1 ¶ 64).
After approximately thirteen months, a reassessment significantly raises the tax valuation of developed property. (Doc. 1 ¶ 68). Chase sends a letter to customers, advising them that their mortgage payments have increased and that the current escrow account, based on the tax assessment of the undeveloped property, is underfunded. (Doc. 1 ¶¶ 68-69). Consumers who are unable to meet the substantial payment increase and the escrow shortfall are forced to default on their mortgage. As a result, many of the homes sold by Percudani lapse into foreclosure. (Doc. 1 ¶¶ 69-70). Those customers who can avoid foreclosure must continue to make the increased mortgage payments and are saddled with a home worth 35% to 45% less than what they paid. (Doc. 1 ¶ 72).
On June 28, 2001, plaintiffs filed a complaint seeking relief under the civil remedy provisions of both RICO, 18 U.S.C. § 1964(c), and the Pennsylvania UTPCPL, Pa. Stat. Ann. tit. 73, § 201-9.2. (Doc. 1 ¶¶ 158-97). Specifically, plaintiffs allege that (1) Percuda-ni, Raintree, Chapel Mortgage, and Chapel Hill, in violation of 18 U.S.C. § 1962(c), engaged in a “pattern of racketeering activity,” predicated on acts of wire and mail fraud; (2) Stranieri, Chase, and Spaner, in violation of 18 U.S.C. § 1962(d), conspired with Percuda-ni, Raintree, Chapel Mortgage, and Chapel Hill to violate 18 U.S.C. § 1962(c); and (3) all defendants, in violation of Pa. Stat. Ann. tit. 73, §§ 201-3, 201—2(4)(iii), (xxi), caused a “likelihood of confusion or of misunderstanding as to affiliation, connection or association with ... another” and engaged “in any other fraudulent or deceptive conduct [creating] a likelihood of confusion or of misunderstanding.”
II. Standard of Review
Motions for class certification mandate an intensive and rigorous examination of the
III. Discussion
Federal Rule of Civil Procedure 23 mandates a two-stage analysis for the certification of a class. Initially, the party seeking class certification must establish four prerequisites: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a); Johnston v. HBO Film Mgmt.,
A. Prerequisites for a Class Action Under Rule 23(a)
1. Numerosity
The numerosity aspect of certification requires the class to include enough persons so that “joinder of all members is impracticable.” Fed. R. Civ. P. 23(a). As other courts have noted, no “magic number” exists at which numerosity is satisfied, and the moving party is not required to establish conclusively the final number of likely members. Strain v. Nutri/System, Inc., No. Civ. A. 90-2772,
In this case, plaintiffs allege that the class includes “hundreds, if not thousands,” of “renters of low- and fixed-income in the New York Metropolitan Area.” (Doc. 40). Accepting the veracity of this averment, it appears that joinder plainly would be impracticable due to the number of individuals involved.
2. Commonality
Commonality under subsection (a) of Rule 23 requires only that “the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” In re Prudential Ins. Co. of Am. Sales Practices Litig.,
3. Typicality
To establish typicality, plaintiffs must show that their claims arise from factual and legal bases similar to those of other potential class members. Johnston,
In the present case, plaintiffs allege that they and all proposed class members saw the same false advertisements, received the same misleading letter, and made payments as part of a coordinated, fraudulent scheme. Although plaintiffs and members of the proposed class received varying oral presentations during their individual meetings with defendants, both the putative representatives and members base their claims on the same underlying theory: defendants’ misrepresentations and fraudulent actions caused economic injury to plaintiffs in connection with the purchase and mortgage of their homes.
4. Adequacy of Representation
The final prerequisite under subsection (a) of Rule 23 ensures that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To satisfy this condition, plaintiffs must show both that the attorneys of the representative parties are qualified to prosecute the class action on behalf of the class members and that no conflicts of interest would likely hinder the representatives from advocating the class members’ claims. Prudential Ins. Co.,
Courts generally presume that counsel are competent to handle class action litigation in the absence of evidence to the contrary and have eschewed any litmus test for counsel seeking to represent a class. See Szczubelek v. Cendant Mortgage Corp.,
The second aspect of the adequacy inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor,
B. Requirements for Maintenance of a Class Action Under Rule 23(b)
1. Predominance
Like the commonality prong of subsection (a), predominance dissects the individual claims of proposed class members to ensure that all share a common legal or factual basis. See, e.g., Johnston,
Although RICO and the Pennsylvania UTPCPL differ substantively in many aspects, they are facially similar in that both
It is on the issue of damages that the claims of the potential class members in this case diverge. Although several courts have noted that variations in the amount of damages do not preclude certification, this conclusion does not obviate the need for plaintiffs to establish the fact of damages when class-wide injury cannot be presumed and forms an essential element of their ease. See Newton,
Under certain circumstances, courts may presume class-wide damage on the basis of “fraud on the market,” or a similar theory, under which the fraudulent conduct itself causes injury regardless of the nature of individual transactions. These cases often arise in the context of securities fraud, when a company implements a common excessive pricing policy for shares, meaning that any individual who purchases shares at the price is injured, regardless of the circumstances of the sale itself or the particular amount of damages involved. See Newton,
Additionally, both claims implicate causation concerns that militate against a finding of predominance. RICO and the Pennsylvania UTPCPL require, respectively, that plaintiffs’ injuries be “by reason of’ and “as a result of’ a violation of the statutory prohibitions. Compare 18 U.S.C. § 1964(c), with Pa. Stat. Ann. tit. 73, § 201-9.2. Although
2. Superiority
The superiority inquiry under subsection (b) centers on whether a class action provides the most efficient forum for disposing of plaintiffs claims. Rule 23 suggests four non-exhaustive factors of importance:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be en*354 countered in the management of a class action.
Fed. R. Crv. P. 23(b)(3). In conducting this analysis, courts often consider the probable financial resources of members of the class and the financial incentives, or lack thereof, to vindicate their claims. See, e.g., Cullen,
The individual and complex issues relating to causation and damages, discussed previously in the context of predominance, also militate against finding that a class action is the superior method of adjudication of the potential claims here. The fact-specific nature of these determinations would require the court to hear from every member of the class, numbering potentially in the thousands, and would present insurmountable manageability problems. Even if certain issues, such as the fraudulent and inducing character of the advertisements and mailings could successfully be severed from the remaining causation and damages questions, the resolution of these relatively simple claims in the form of a class action presents no greater benefit to the claimants than the application of preclusion doctrines in future cases.
Lastly, the court notes that a class action appears unnecessary because persons with a viable claim should have sufficient incentive to bring them claims individually. While the court is not unsympathetic to the practical and financial difficulties faced by first-time home buyers in negotiating the legal landscape without the advantages of class representation, these obstacles simply do not present a situation in which the cost of litigation clearly outweighs potential recovery. According to plaintiffs’ complaint, many of those harmed by defendants’ actions suffered foreclosure on their homes, and all participating home buyers endured inflated mortgage payments. Although many of these individuals are described as “low-income renters,” both RICO and the Pennsylvania UTPCPL include fee-shifting provisions, allowing the recovery of attorney’s fees. 18 U.S.C. § 1964(c); Pa. Stat. Ann. tit. 73, § 201-9.2(a). Thus, these individuals should have both the means and the incentive to pursue their claims individually. Because claimants have allegedly suffered substantial loss and may recoup costs of counsel through fee-shifting provisions, and because individual issues clearly predominate, the class action is not a superior method to adjudicate the claims.
IV. Conclusion
For the foregoing reasons, the court will deny plaintiffs’ motion for class certification and will grant defendants’ motion to strike class action allegations. See Fed. R. Civ. P. 12(f) (“[T]he court may order stricken from any pleading any ... immaterial ... matter.”); Fed. R. Civ. P. 23(d) (stating that the court may “requir[e] that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons”). An appropriate order will issue.
ORDER
AND NOW, this 15th day of September, 2003, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. Plaintiffs’ motion for class certification (Doc. 39) is DENIED.
2. Defendants’ motion to strike class action allegations (Doc. 10) is GRANTED. Plaintiffs shall file an amended complaint deleting all class action allegations within twenty days of the date of this order.
Notes
. In accordance with the standard of review for a motion for class certification, the court will present the facts substantially as alleged in plaintiff's complaint, with some minor deviations based on supplemental discovery undertaken with court approval. (Doc. 156).
. According to the complaint, Chapel Homes was the predecessor of Raintree and, like Raintree, was controlled by Percudani. (Doc. I ¶ 12). For purposes of this opinion, any reference to Rain-tree should be interpreted to apply also to Chapel Homes.
. According to the complaint, Spaner was the employee of Chase responsible for the purchase of the loans. (Doc. 1 V 16).
. In the complaint, plaintiffs also alleged that (4) all defendants, in violation of Pa. Stat. Ann. tit. 73, §§ 201-3, 201-2(4)(v), (ix), represented "that goods or services have sponsorship, approval, characteristics, [or] benefits ... that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have” and advertised "goods or services with intent not to sell them as advertised”; and (5) all defendants committed common law negligent misrepresentation. The court previously dismissed these counts for failing to state a claim upon which relief could be granted. (Doc. 155).
. Indeed, defendants do not appear to argue that plaintiff failed to satisfy the numerosity requirement and instead choose to focus on issues of commonality and predominance. (Docs. 11, 44; but see Doc. 86).
. Defendants argue, in a conclusory manner, that typicality is lacking because "unique defenses" exist to the claims of the plaintiff and proposed members. (Doc.11,86). Although it is unclear to what defenses they are referring, defendants have asserted the applicable statute of limitations as a defense to actions by certain plaintiffs. (Doc. 124). Even if the court later finds that the statute of limitations applies, this determination goes to the merits of plaintiffs' claims, and is inappropriate for resolution on a motion for class certification, which examines only whether plaintiffs' causes of action are susceptible to class treatment. See Cullen,
. Although defendants dispute the competency of counsel on grounds that the plaintiffs’ complaint contains “apparent factual contradictions,” such arguments are common in—and, in fact, form the driving force behind—our adversarial system. The court’s review of the complaint and other documents filed by plaintiffs discloses no instances in which potential inconsistencies could be attributed to the incompetency of counsel rather than differing interpretations of underlying occurrences.
. This distinction may be clarified by analogy to the legal standards of sufficiency and weight of the evidence: Commonality measures the sufficiency of the evidence, testing only whether a plaintiff has properly alleged a single common issue, while predominance examines the weight of the evidence, analyzing whether the number of common issues clearly outweighs individual issues.
. The difficulty in establishing damages for standing purposes is matched by the subsequent challenge that would inhere in determining the precise quantum of damages suffered by each plaintiff.
. With respect to RICO, several courts within the Third Circuit have concluded that reliance is an element of plaintiffs claim in an action under RICO predicated on mail and wire fraud, see Smith v. Berg, No. Civ. A. 99-CV-2133,
. Similarly, Pennsylvania courts have disagreed on whether Weinberg v. Sun Co.,