Wolfson v. Artisans Savings Bank

83 F.R.D. 547, 28 Fed. R. Serv. 2d 726, 1979 U.S. Dist. LEXIS 10954
CourtDistrict Court, D. Delaware
DecidedJuly 17, 1979
DocketCiv. A. No. 76-179
StatusPublished
Cited by11 cases

This text of 83 F.R.D. 547 (Wolfson v. Artisans Savings Bank) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfson v. Artisans Savings Bank, 83 F.R.D. 547, 28 Fed. R. Serv. 2d 726, 1979 U.S. Dist. LEXIS 10954 (D. Del. 1979).

Opinion

OPINION

STAPLETON, District Judge:

The plaintiffs in this action have moved for class certification under F.R.C.P. 23(b)(3).1 The defendants have raised a number of objections to certification, and have suggested that if a class is to be certified, it should be limited in a variety of ways. The Court finds that the requirements for Rule 23(b)(3) certification have been met for a plaintiff class consisting of all present mortgagors of the defendant banks whose mortgages were acquired on or after May 20, 1972, and whose loan agreements have at any time since that date required them to pay V12 of yearly taxes and/or insurance charges every month into non-interest bearing escrow accounts.

Initially, the Court must find that the requirements of Rule 23(a) have been met. Defendants do not appear to challenge plaintiffs’ assertions as to numerosity, and it is clear that joinder of all plaintiffs would be impracticable. Similarly, defendants apparently concede that common questions of law or fact exist in the case, fulfilling the requirement of Rule 23(a)(2). Those common questions revolve around the alleged existence of a conspiracy among the defendants to refuse to pay interest on required escrow accounts, and the unreasonableness of the resulting restraint of trade.

The defendants seriously dispute the adequacy of the plaintiffs’ representation of the proposed class, and the typicality of their claims with those of other class members. On the issue of adequacy of representation, little needs to be said. The Third Circuit has stated:

Adequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.

Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247, cert. denied, 421 U.S. 1101, 95 [550]*550S.Ct. 2415, 44 L.Ed.2d 679 (1975). The defendants have tried to show that the plaintiffs are too ignorant of the facts of their case and of the legal claims they are asserting to represent the interests of others effectively. I am not persuaded. The Chandlers know that their bank uses their es-crowed money without paying them interest on it. They are willing to undertake the costs of this litigation, and have been cooperative in the discovery stage. The fact that they may not have detailed knowledge of the mortgage practices of the various defendants does not disqualify them as representatives of the class. “To require the class representative to be sophisticated and knowledgeable enough to help counsel in [the extensive investigation] would reduce the class action device, especially in complicated antitrust cases, to an impotent tool.” Chevalier v. Baird Savings Ass’n., 72 F.R.D. 140, 146 (E.D.Pa.1976).

Next the defendants assert that the Chandlers’ claims are not typical of the claims of other mortgagors because the Chandlers need only prove that their bank, First Federal, was part of a conspiracy in 1976 in order to recover, and they have no need to prove participation on the part of any other particular defendant at any particular time. This argument has been rejected by a number of courts in class actions where conspiracy is alleged. See, e. g., Green v. Wolf Corp., 406 F.2d 291 (2nd Cir. 1968); Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975); Lewis v. Capital Mortgage Investments, 78 F.R.D. 295 (D.Md.1977). It is rejected here as well. It is essential to the Chandlers’ claim not only to prove the escrow practices of their own bank but also to prove the participation of their bank with other banks in a conspiracy not to pay interest on escrowed funds. Prior to the Court’s decision, they cannot know whether they will be successful in proving the participation in the conspiracy of any given bank at any given time. Moreover, they can reasonably anticipate that the chances of securing a finding that First Federal was involved in a conspiracy in 1976 will be augmented by evidence showing a conspiracy with many members existing over a substantial period of time. For these reasons, it is in the Chandlers’ interest to offer evidence tending to show the participation of as many banks as possible over as long a period as possible. Moreover, it appears from the evidence tendered during the summary judgment proceedings that plaintiffs, in attempting to prove their own claim, will rely primarily on expert economic analysis which will be as relevant to each of the other defendants as to First Federal.

The defendants also attempt to defeat or limit certification by asserting that the gravamen of the complaint is individual injury rather than conspiracy. However, under the circumstances of this case it seems clear that the plaintiffs can prove “fact of damage” on a class-wide basis by proving an illegal conspiracy which had the effect of maintaining anticompetitive terms in required escrow accounts. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 455 (3d Cir. 1977); In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322 (E.D.Pa.1976). “. . . [I]n a price-fixing or similar case, the fact of injury is presumed once a conspiracy is proven.” Chevalier v. Baird Savings Ass’n, 72 F.R.D. 140, 149 (E.D.Pa. 1976). It may be that individual hearings will be required to determine individual damages for each class member, but that is not to be confused with the “fact of damage” requirement, and “should not preclude class determination when the common issues which determine liability predominate.” Bogosian, supra, at 456.

Finally, the defendants argue that plaintiffs are atypical because under federal regulations, their bank was required to escrow for taxes and perhaps for insurance. But the plaintiffs do not object to the requirement of escrow per se; it is the conspiracy to refuse to pay interest on required escrow payments which is central to their complaint. The federal regulations do not require the escrow accounts to be non-interest bearing. Thus, any effect those regulations may have on the practices of First Federal does not affect the typicality of the Chandlers’ claim.

[551]*551All four requirements of Rule 23(a) having been met, I now move to a consideration of the requirements of Rule 23(b)(3): that questions common to the class predominate over questions which affect individual class members, and that the class action is superior to other available methods of litigating the issues. The defendants challenge certification on both grounds.

Generally, the allegation of an antitrust conspiracy is sufficient to establish a predominance of common questions. See 4 H. Newberg, Class Actions § 7524 (1977); Chevalier v. Baird Savings, supra, at 149. The defendants point out that there may be some individual questions to be litigated in the case. But the fact that these questions exist does not preclude a finding that common issues will predominate at trial.

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83 F.R.D. 547, 28 Fed. R. Serv. 2d 726, 1979 U.S. Dist. LEXIS 10954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfson-v-artisans-savings-bank-ded-1979.