Duane Morris Consumer Fraud Class Action Review – 2024

class action would be the superior method for adjudicating the controversy, given the small individual recovery sought by the plaintiffs. In Schultz, et al. v. Emory University, 2023 U.S. Dist. LEXIS 103979 (N.D. Ga. June 15, 2023), another COVID-19 tuition reimbursement class action, the father of an Emory University student (who was enrolled in classes for the Spring and Fall 2020 semesters) sued Emory on behalf of himself and other similarly- situated tuition payers. When the COVID-19 pandemic began, many schools across the country shifted their curriculums from in-person learning models to remote learning ones. Emory was no exception. The problem, though, according to the plaintiff, was that despite Emory ’ s transition to remote learning, the university did not reimburse the plaintiff or the putative class members for this change in model. The plaintiff asserted that Emory ’ s failure to reimburse payors for the qualitative deficits inherent in a transition from in-person learning to remote learning allegedly caused the plaintiff and the putative class members to lose the benefit of their respective bargains with Emory University. The plaintiff moved for class certification pursuant to Rule 23, arguing: (i) the class of payors harmed by Emory ’ s remote learning transition was so numerous that joinder of all members was impracticable; (ii) questions of law or fact common to the class existed; (iii) the claims or defenses of the plaintiff were typical of those that other payors had as well; and (iv) the plaintiff would be a fair and adequate representative, capable of protecting the interests of the class. The defendant contested the appropriateness of class certification on the grounds of commonality and adequacy. Regarding the plaintiff ’ s adequacy as a class representative, Emory argued he had not been sufficiently active in the litigation to be considered an “adequate” representative knowledgeable and capable of representing the rights of class members. The court rejected Emory ’ s argument, finding that the plaintiff was an adequate class representative because he understood the allegations of the case and was committed to pursuing the best interests of the class. The court reasoned that “class certification should not be denied simply because of a perceived lack of subjective interest on the part of the named plaintiffs unless their participation is so minimal that they virtually have abdicated to their attorneys the conduct of the case.” Id. at *4 (quoting Kirkpatrick v. J.C. Bradford & Co. , 827 F.2d 718, 726 (11th Cir. 1987)). As for commonality, the plaintiff argued that common issues of law and fact existed as to all class members because they all sought similar refunds for the defendant ’ s failure to provide in-person instruction due to the pandemic. Emory countered that individualized issues regarding each putative class member ’ s specific situations made class certification improper. The court rejected these arguments. It found commonality established because the putative class members all experienced a common injury – a failure to be reimbursed for in-person learning that the beneficiaries of their tuition payments did not receive – pursuant to a common claim – the breach of an implied contract. Accordingly, the court concluded that a class action would be the superior form of adjudication because there was no reason to believe that the putative class members had any interest in controlling their own litigation, nor was the court aware of other class members separately pursuing the same claims in other cases. Accordingly, the court granted the plaintiff ’ s motion for class certification. In Yates, et al. v. NewRez LLC, 2023 U.S. Dist. LEXIS 140406 (D. Md. Aug. 9, 2023), the court certified a class of homeowner plaintiffs who alleged that a mortgage servicing company charged them inspection fees in violation of Maryland ’ s usury law that prohibited lenders from levying inspection fees on loans secured by residential real property. The putative class consisted of people in Maryland who had a loan serviced by the defendant, NewRez LLC, on behalf of Fannie Mae and who were charged inspection fees related to the residential properties. To meet the putative class definition, putative class members also could not have paid off their respective mortgages on or before April 5, 2021. The court determined that the homeowner class easily satisfied Rule 23(a) ’ s requirement for numerosity because hundreds of homeowners met the putative class definition. Commonality was also easily established because class members all possessed similar questions of law – whether NewRez LLC could lawfully impose inspection

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