September 10, 2015 Practice Points

Third Circuit Upholds Certification in Mortgage Loan Case

The court’s decision highlights the substantial discretion that trial courts within the Third Circuit have in managing even very large class actions

by Erin Wilson

On July 29, 2015, the Court of Appeals for the Third Circuit upheld on appeal the district court's order certifying a nationwide litigation class of individuals who received mortgage loans from a financial institution whose interests were acquired by PNC Bank National Association. In re Community Bank of Northern Virginia Mortgage Lending Practices Litigation, No. 13-4273, 2015 WL 4547042 (July 29, 2015). On appeal, PNC made several arguments against certification, including (1) that there was a conflict undermining the adequacy of representation by class counsel; (2) that the district court erred in conditionally certifying the class; and (3) that the putative class did not meet the requirements of rule 23. The district court had previously certified a general class and five sub-classes.

PNC argued, among other things, that the class was not ascertainable because some class members may have declared bankruptcy, rendering the bankruptcy estate rather than the borrower the real party in interest. The Third Circuit, however, found this contention too “mired in speculation” to raise an ascertainability problem, notwithstanding the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). The court distinguished Carrera, which involved claims regarding advertising practices in connection with weight-loss pills wherein the defendant did not have a list of purchasers. The court stated that PNC, on the contrary, possessed all the relevant bank records needed to identify the putative class members. PNC also raised issues regarding commonality and manageability, citing purportedly individualized issues among the class. The court rejected these arguments, stating that the trial court has “substantial discretion” to manage the case through “imaginative solutions.”

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