                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-2131


DENISE MINTER, Individually and on behalf of a class of
consumers similarly situated; JASON ALBOROUGH; RACHEL
ALBOROUGH; LIZBETH T. BINKS,

                  Plaintiffs – Appellants,

           and

FRANK LAROCCA; CATHERINE LAROCCA; MEHDI          NAFISI;   FOROUGH
IRANPOUR; KENNETH PFEIFER; ANGELA PFEIFER,

                  Intervenors/Plaintiffs,

           v.

WELLS FARGO     BANK, N.A.; LONG & FOSTER REAL ESTATE, INC.;
PROSPERITY      MORTGAGE   COMPANY;  WALKER   JACKSON  MORTGAGE
CORPORATION,     formerly doing business as Prosperity Mortgage
Corporation;    WELLS FARGO VENTURES, LLC,

                  Defendants – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:07-cv-03442-WMN)


Argued:   May 14, 2014                       Decided:   August 5, 2014


Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Affirmed by published opinion.    Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Conrad joined.


ARGUED: Cyril Vincent Smith, ZUCKERMAN SPAEDER LLP, Baltimore,
Maryland, for Appellants. William M. Jay, GOODWIN PROCTER LLP,
Washington, D.C., for Appellees.     ON BRIEF: William K. Meyer,
ZUCKERMAN SPAEDER LLP, Baltimore, Maryland; Richard S. Gordon,
Benjamin H. Carney, GORDON, WOLF & CARNEY CHTD., Baltimore,
Maryland, for Appellants.    Irene C. Freidel, Brian M. Forbes,
K&L GATES LLP, Boston, Massachusetts; Andrew Jay Graham, John A.
Bourgeois, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for
Appellees Wells Fargo Bank, N.A., and Wells Fargo Ventures, LLC.
David L. Permut, Sabrina M. Rose-Smith, GOODWIN PROCTER LLP,
Washington, D.C., for Appellee Prosperity Mortgage Company. Jay
N. Varon, Jennifer M. Keas, FOLEY & LARDNER LLP, Washington,
D.C., for Appellees Long & Foster Real Estate, Incorporated, and
Walker Jackson Mortgage Corporation.




                               2
WYNN, Circuit Judge:

      In this class action suit, Plaintiffs Denise Minter, Jason

and Rachel Alborough, and Lizbeth Binks brought suit on behalf

of a group of consumers alleging that Wells Fargo and Long &

Foster Real Estate (collectively, “Defendants”) violated Section

8 of the Real Estate Settlement Procedures Act (“RESPA”), 12

U.S.C. § 2607.        Specifically, Plaintiffs allege that Defendants

created      a    joint       venture,          Prosperity        Mortgage      Company

(“Prosperity”), to skirt RESPA’s prohibition on kickbacks while

failing to disclose this business arrangement to its customers.

      After a trial on a portion of Plaintiffs’ claims, the jury

returned a verdict that foreclosed Plaintiffs’ untried kickback

claims.     Plaintiffs moved for a new trial on the kickback claims

but were denied.          Due in large part to Plaintiffs’ failure to

move for judgment as a matter of law before the jury reached its

verdict, as well as the highly deferential lenses through which

we   must   review    the   issues     before        us,   we     conclude   that      the

district     court    did   not    abuse       its   discretion       as   to    any     of

Plaintiffs’ challenges.           Accordingly, we affirm.



                                           I.

      In    1993,     Wells       Fargo     and      Walker       Jackson       Mortgage

Corporation,      a   subsidiary     and    affiliate        of    Defendant     Long     &

Foster     Real   Estate,   formed     Prosperity          Mortgage    Company      as    a

                                           3
joint venture.1          Prosperity was created as “a mortgage lender

that funded its loans via a wholesale line of credit provided by

Wells Fargo[.]”         J.A. 205.

       Plaintiffs Denise Minter and Jason and Rachel Alborough,

along with a class of similarly situated consumers, purchased

their homes with a Long & Foster realtor and obtained mortgages

through Prosperity in 2006 and 2007.                   In late 2007, Plaintiffs

brought this class action suit alleging that Wells Fargo and

Long       &   Foster   created     Prosperity    as    a   “sham”   or   a   front

organization       formed   to    facilitate     unlawful    referral     fees   and

kickbacks in violation of RESPA, as well as a variety of other

state and federal law claims.2           In particular, Plaintiffs alleged

that Defendants created Prosperity to allow Long & Foster to

refer mortgage clients to Wells Fargo in exchange for kickbacks.

Plaintiffs also alleged that Prosperity performed little to no

       1
        At that time, the parties to the joint venture were
Norwest Mortgage, Inc. and Walker Jackson Mortgage Corporation,
which was then known as Prosperity Mortgage Corporation.
Norwest Mortgage later became Wells Fargo. For the purposes of
this opinion, the companies’ current names, Wells Fargo and Long
& Foster, will be used.
     2
        Plaintiffs also alleged violations of the Racketeer
Influenced and Corrupt Organizations Act, the Maryland Consumer
Protection Act, and derivative tort claims, but none of these
are the subject of this appeal.       Before trial, the parties
stipulated to dismiss most of the counts in the complaint, and
Plaintiffs proceeded only on their RESPA and     RESPA conspiracy
claims.   Later, the district court found that RESPA does not
support a cause of action for conspiracy and granted Defendants
summary judgment on the conspiracy claim.         Thus, the only
remaining claims on appeal are the three RESPA claims.


                                          4
real work in connection with the mortgage transactions and that

Wells    Fargo   was    the    real   lender.       Plaintiffs    asserted   three

RESPA violations:

  1. The Section 8(a) claim alleged that Wells Fargo paid
     kickbacks to Long & Foster in exchange for settlement
     services.
  2. The Section 8(c) claim alleged that Wells Fargo and
     Long & Foster operated Prosperity as a “sham” lender,
     i.e., not a bona fide provider of settlement services,
     to funnel Long & Foster real estate customers to Wells
     Fargo for mortgage products.
  3. The Section 8(c)(4) claim alleged that Defendants, as
     members of an affiliated business arrangement as
     defined by RESPA, did not comply with RESPA’s
     requirement to provide borrowers with valid affiliated
     business arrangement disclosures.

J.A. 206, 250, 292-301, 1036-37, 1095-97.3

     Plaintiffs        moved    to    certify   a   class   for   all   of   their

claims.      The   district      court    bifurcated     Plaintiffs’    proposed

class into two separate classes: (1) the Timely Class, including

all the class members whose claims were brought within RESPA’s

one-year statute of limitations, and (2) the Tolling Class, for


     3
       The district court and the parties refer to the claims as
Section 8 claims in light of the Section’s location in the
statute as enacted by Congress, RESPA, Pub. L. No. 93533, 88
Stat. 1724, but these references correspond to subsections of 12
U.S.C. § 2607.    Section 8(a) sets out RESPA’s prohibition on
kickbacks while Section 8(c) provides exemptions from that
prohibition. In this case, Plaintiffs alleged direct violations
of Section 8(a)’s prohibition as well as Section 8(c) claims,
which assert that Defendants failed to meet the requirements for
the Section 8(c) exemptions from Section 8(a). In this appeal,
we are not asked to decide whether Section 8(a) and Section 8(c)
provide separate claims, and we therefore take no position on
that issue.


                                          5
all class members whose claims were brought after the statute of

limitations period expired.

       Thereafter,        the    district       court     certified       Plaintiffs’

Section 8(c) and 8(c)(4) claims, but did not certify the Section

8(a)   claims      because      “only   those   Prosperity        clients    who      were

referred [to Prosperity] by Long & Foster may proceed under [the

Section     8(a)]       claim”    and   certifying      a   sub-class       for       that

particular       sub-set    of   members    would   “unnecessarily          complicate

and obscure” the central inquiry into Prosperity’s legitimacy as

a lender.        J.A. 260-61.       The district court noted that “[s]hould

Plaintiffs fail under their Section 8(c) claims, the Court may

entertain    further       briefing     with    respect     to    the   Section       8(a)

theory.”         J.A.    261.     The   district    court        also   chose       not   to

certify the Tolling Class on any of the claims because it did

not have a representative member.

       In response, Plaintiffs amended their complaint to include

a new named plaintiff, Lizbeth Binks, as a representative of the

Tolling Class, and renewed their motion to certify the Tolling

Class on all their claims.              The district court reiterated that

it would not certify the Section 8(a) claims for either the

Tolling     or     the     Timely    Class.       After     completing          a    class

certification analysis, the district court certified the Tolling

Class on its Section 8(c) and 8(c)(4) claims only.



                                           6
      Defendants then moved for summary judgment on the Timely

and Tolling Classes’ claims.              The district court denied their

motions due to factual disputes that could not be resolved at

the summary judgment stage.4           Before trial on the Section 8(c)

and   8(c)(4)   claims,      Plaintiffs    suggested   that   the    individual

Section 8(a) claims, although not certified as a class, should

be tried in the same trial.            The district court rejected that

request, stating that “[f]ollowing the upcoming trial, the Court

will solicit proposals from the parties related to scheduling a

trial of Plaintiffs’ individual § 8(a) claims.”               J.A. 1097.     See

also J.A. 1100 n.2 (“Plaintiffs’ individual claims under § 8(a)

will be tried at a later date.”).

      Before trial, Defendants moved to decertify both the Timely

and the Tolling Classes.            The district court decertified the

Tolling   Class   due   to    the   court’s   concerns   about      the   tolling




      4
       However, the district court noted that it would consider
decertifying the Tolling Class at a later point:
     While the Court concludes that summary judgment should
     be denied . . . as to Binks’ claim, after delving into
     the arguments regarding tolling, . . . the Court finds
     it must at least consider the option to which it
     alluded when certifying the Tolling Class, i.e.,
     exercising its discretion to decertify that class
     should issues of manageability begin to overwhelm the
     advantages of certification.     The Court will delay
     that   determination,   however,    until   after  the
     completion of the Petry trial.
J.A. 780 (citation omitted).


                                       7
doctrine’s individualized application.5                    The district court also

amended the Timely Class by limiting it to class members who

were referred to Prosperity by Long & Foster and excluding any

class members whose loans were not transferred to Wells Fargo

but were instead sold to others.

        Also before trial, Plaintiffs moved to exclude evidence and

argument about whether Plaintiffs had suffered economic injury,

including testimony from one of Defendants’ experts, Dr. Marsha

Courchane.             The    district    court       agreed,     ruling      that      Dr.

Courchane’s testimony and other “evidence of a lack of economic

damages” was minimally relevant and deemed the probative value

of the expert testimony “substantially outweighed by a danger of

unfair       prejudice,      confusion,    misleading       the     jury,   or     delay.”

J.A.        1119-20.         However,    the       court   stated    that     it     would

reconsider       that     ruling   if     Plaintiffs       “open[ed]    the      door    to

evidence of economic injury during their case-in-chief[.]”                           J.A.

1120.        Later, the district court ruled that Defendants would be

allowed to ask about whether Plaintiffs “shopp[ed] around for

their mortgages and whether they chose Prosperity because it was

        5
      After the trial, the district court entered Administrative
Order Number 5.   That order explained the re-definition of the
classes, stayed the decertification of the classes until notice
was provided, and severed the individual 8(a) claims of the
Timely Class representatives, Minter and the Alboroughs, from
the individual Section 8(a) claims of the Tolling Class
representative, Binks, and ordered “that those claims shall be
subject to separate proceedings, if necessary.” J.A. 1267-69.


                                               8
offering better rates[,] lower costs, or better service.”                                 J.A.

1162 (quotation marks omitted).                    The court explained that this

evidence      “is     relevant     background           on   the     Named    Plaintiffs’

claims[,]” distinct from unfairly prejudicial evidence of their

lack of economic harm.           Id.

      After resolving these motions, the district court held the

trial on Plaintiffs’ Section 8(c) and Section 8(c)(4) claims.

During this trial, several matters arose to become the bases for

the   issues        now   on   appeal.             First,    throughout       the     trial,

Plaintiffs objected to Defendants’ questions regarding whether

Plaintiffs suffered economic harm from using Prosperity, whether

Prosperity’s loans were competitive in the market, and whether

Prosperity gave the named Plaintiffs the best deal.                                  Second,

during closing arguments, Long & Foster’s counsel stated that “I

think the only thing I agree [with] for sure is that Long &

Foster did refer the named plaintiffs to Prosperity.                           There’s no

dispute about that.”           J.A. 1686.           Third, counsel for Prosperity

and   Wells    Fargo      stated       that       the    named     Plaintiffs       received

financially     beneficial       deals        in    their    loans.          And    finally,

during his closing argument, Wells Fargo’s counsel implied that

Plaintiffs’ attorney had a financial interest in the case.

      After     the       district       court          instructed     the         jury    and

deliberations concluded, the jury returned a verdict in favor of

Defendants.         Specifically, the jury decided that Plaintiffs did

                                              9
not prove by a preponderance of the evidence that Prosperity was

a sham and not a bona fide provider of settlement services.                               In

addition, the jury decided that Plaintiffs did not prove that

Long & Foster referred or affirmatively influenced Plaintiffs to

use   Prosperity       or   that       Prosperity         referred    or    affirmatively

influenced      Plaintiffs            to   use      Wells     Fargo       for    settlement

services.       Accordingly, the district court entered judgment in

favor of Defendants.6

      Thereafter, Plaintiffs moved for a new trial under Federal

Rule of Civil Procedure 59(a).                      The district court denied the

motion    and     issued    an    order       entering       judgment      “in    favor   of

Defendants      and    against        Named   Plaintiffs       on     Named     Plaintiffs’

claims    under    §   8(a)      of    [RESPA],      12     U.S.C.    §    2607[,]”   i.e.,

claims that had not yet been tried (as opposed to the Section

8(c) claims, which had been tried).                    Appellants’ Br. at Addendum

31.   Plaintiffs timely appealed.



                                              II.

      Plaintiffs first challenge the district court’s rejection

of their Rule 59(a) motion for a new trial.                         “A district court’s

denial of a motion for a new trial is reviewed for abuse of


      6
       The district court later entered an amended judgment that
reflected the exclusions from the class that were discussed
above.


                                              10
discretion,     and      will     not   be     reversed   ‘save    in        the     most

exceptional circumstances.’”            FDIC v. Bakkebo, 506 F.3d 286, 294

(4th Cir. 2007) (quoting Figg v. Schroeder, 312 F.3d 625, 641

(4th Cir. 2002)).

      Rule 59 states that “[t]he court may, on motion, grant a

new trial on all or some of the issues . . . after a jury trial,

for any reason for which a new trial has heretofore been granted

in   an   action   at    law    in   federal    court[.]”      Fed.     R.    Civ.     P.

59(a)(1).       We      have    recognized     that,   under     this    rule,        the

district court must

      “set aside the verdict and grant a new trial[] if . .
      . (1) the verdict is against the clear weight of the
      evidence, or (2) is based upon evidence which is
      false, or (3) will result in a miscarriage of justice,
      even though there may be substantial evidence which
      would prevent the direction of a verdict.”

Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001) (quoting

Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99

F.3d 587, 594 (4th Cir. 1996)).

      Plaintiffs        brought      three    RESPA    claims:    Section           8(a),

Section 8(c) and Section 8(c)(4) claims.                  The Section 8(c) and

Section 8(c)(4) claims proceeded to trial, but the Section 8(a)

claims    did   not      but    were    instead    adjudicated     after           trial.

Appellants’ Rule 59 motion is unusual in that Plaintiffs are not

seeking a new trial for the purpose of re-trying their Section




                                         11
8(c) claims.        Instead, they are seeking “only a first trial on

their [Section] 8(a) claims[.]”               Appellants’ Br. at 49.

       Plaintiffs’ Rule 59(a) motion specifically challenged the

jury’s negative answer to Question Three of the verdict form:

“Have Plaintiffs proved, by a preponderance of the evidence,

that Long & Foster Real Estate, Inc. referred or affirmatively

influenced the Plaintiffs to use Prosperity Mortgage Company for

the    provision    of   settlement       services?”            J.A.    1212.    Because

Plaintiffs’ Section 8(a) claim also required Plaintiffs to prove

that    Long   &    Foster      referred      Plaintiffs         to    Prosperity,     the

district    court     held      that    the    jury’s      finding      on   this     issue

undermined both the Plaintiffs’ tried and untried RESPA claims.

Plaintiffs     thus   seek      to   overturn       the    jury’s      finding   on    this

question and attain a trial on the Section 8(a) claims.

       On appeal, Plaintiffs make two arguments for reversal of

the district court’s denial of their Rule 59 motion: 1) Long &

Foster’s    counsel      made    a     judicial     admission         that   removed    the

referral    issue     from   dispute,         and   2)    the    jury’s      verdict   was

against the clear weight of evidence.                    We disagree with both.



                                           A.

       First, Plaintiffs argue that the district court abused its

discretion by finding that Long & Foster’s counsel’s statement



                                           12
in    closing    argument       that    Long    &       Foster    referred       the    named

Plaintiffs to Prosperity was not a judicial admission.

       A    judicial        admission      is       a     representation          that     is

“‘conclusive in the case’” unless the court allows it to be

withdrawn.       Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264

(4th Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194,

1198 n.8 (7th Cir. 1995) (further defining judicial admissions

as “formal concessions in the pleadings, or stipulations by a

party or its counsel, that are binding upon the party making

them”)).          Judicial       admissions             include       “intentional       and

unambiguous waivers that release the opposing party from its

burden     to   prove   the     facts    necessary        to     establish   the       waived

conclusion of law.”             Id. at 264-65.            “[A] lawyer’s statements

may    constitute       a    binding     admission         of     a    party[]”    if     the

statements       are        “‘deliberate,       clear,          and     unambiguous[.]’”

Fraternal Order of Police Lodge No. 89 v. Prince George’s Cnty.,

Md., 608 F.3d 183, 190 (4th Cir. 2010) (quoting Meyer, 372 F.3d

at 265 n.2).         “We review the district court’s determination as

to    whether    a     particular       statement        constitute[d]       a    judicial

admission . . . [for] abuse of discretion.”                           Meyer, 372 F.3d at

264 (quotations omitted) (alterations in original).

       In this case, during closing arguments, Long & Foster’s

counsel stated:



                                           13
     First of all, at the outset, I would just ask you to
     ask yourselves if your assessment of the witnesses, of
     the documents, of their credibility, of what you heard
     in this case really matches what [Plaintiffs’ counsel]
     told you. It’s your job to weigh what occurred here.
          And frankly, I’m sure you won’t be surprised, I
     have a lot of differences, and differences of
     recollection, differences in what was said.
          I think the only thing I agree way [sic] for sure
     is that Long & Foster did refer the named plaintiffs
     to Prosperity. There’s no dispute about that.

J.A. 1686.      Plaintiffs did not object, move for judgment as a

matter of law, or seek to amend the jury verdict form after this

alleged admission.       After deliberations, the jury found that

Plaintiffs   had   not   proven   that   Long   &    Foster   referred    or

affirmatively      influenced     Plaintiffs    to     use     Prosperity.

Plaintiffs then moved for a new trial, arguing for the first

time after the jury’s verdict, that counsel’s statement during

argument had constituted a judicial admission that Long & Foster

had referred the plaintiffs to Prosperity.

     The district court recognized that “[t]aken alone, [Long &

Foster’s counsel’s] statement could possibly be considered an

admission[,]” but rejected the motion for a new trial.                   J.A.

1353.   The district court explained that

     giving due regard to the context of this litigation
     and considerations of fairness, the Court is troubled
     by the fact that the supposed admission is being
     raised for the first time post-verdict.     While the
     time between [Long & Foster counsel’s] statement and
     submission of the case to the jury was indeed short,
     the Court believes it was a sufficient amount of time
     for Plaintiffs to reconsider the task with which the
     jury would be charged in light of counsel’s statement,

                                    14
     and to raise the supposed admission with the Court and
     with counsel. Obviously, Plaintiffs did not and, . .
     . the conclusion which urges itself at this time is
     that it occurred to no one at the trial that the
     remarks in question constituted an admission of the
     nature here urged. As a result, the Court believes it
     would be decidedly unfair and inconsistent with the
     purpose of motions under Rule 59 to allow Plaintiffs
     to do now, what they failed to do at trial.

J.A. 1353-54 (quotation marks, citations, and footnote omitted).

     On appeal, Plaintiffs claim that this ruling was an abuse

of   discretion.      We    disagree.       The   record     reflects   that

Plaintiffs had ample opportunity to raise the alleged admission

but failed to do so.       And the fact that it occurred to no one at

trial that this isolated remark constituted a binding admission

undercuts   the    notion    that   the    statement   was     sufficiently

deliberate and clear so as to have preclusive effect.               In the

face of Plaintiffs’ failure to undertake any steps whatsoever at

trial to have the statement deemed an admission or have the

issue removed from the jury’s province, it simply cannot be said

that “an error occurred in the conduct of the trial that was so

grievous as to have rendered the trial unfair.”            Bristol Steel &

Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.

1994) (quotation marks omitted).          Accordingly, we conclude that

the district court did not abuse its discretion on this issue.




                                    15
                                          B.

      Second, Plaintiffs contend that the district court abused

its discretion by denying their motion for a new trial because

the jury’s verdict was against the clear weight of the evidence.

While a party is not required to make a Rule 50 motion for

judgment as a matter of law before moving for a new trial, when,

as   here,   a    party   does    not    do    so,   “our    scope    of   review    is

exceedingly confined, being limited to whether there was any

evidence     to   support   the    jury’s       verdict,     irrespective     of    its

sufficiency, or whether plain error was committed which, if not

noticed, would result in a manifest miscarriage of justice.”

Bristol Steel, 41 F.3d at 187 (quotation marks and citations

omitted); accord Nichols v. Ashland Hosp. Corp., 251 F.3d 496,

502 (4th Cir. 2001).

      In other words, when “reviewing the evidence through the

medium of a motion for a new trial after failure to move for

judgment as a matter of law, we do not review sufficiency in its

technical sense.          What is at issue is whether there was an

absolute absence of evidence to support the jury’s verdict.”

Bristol Steel, 41 F.3d at 187 (quotation marks and citations

omitted).         Therefore,     we     must    affirm     the   district    court’s

decision     unless   there      was    “an    absolute     absence   of    evidence”

supporting the jury’s finding that Plaintiffs did not prove by a

preponderance of the evidence that Long & Foster referred or

                                          16
affirmatively influenced them to use Prosperity for settlement

services.    Id.

     Under RESPA’s regulations,

     [a] referral includes any oral or written action
     directed to a person which has the effect of
     affirmatively influencing the selection by any person
     of a provider of a settlement service or business
     incident to or part of a settlement service when such
     person will pay for such settlement service or
     business incident thereto or pay a charge attributable
     in whole or in part to such settlement service or
     business.

12 C.F.R. § 1024.14(f)(1) (2011).                  The district court provided

this definition to the jury during its final instructions.

     We    cannot    say     that   there     is    an   “absolute   absence    of

evidence” supporting the jury’s determination that Long & Foster

did not refer the plaintiffs to Prosperity.                For example, Long &

Foster executive George Eastment testified that it was Long &

Foster’s independently contracted real estate agents who were

responsible for referring Plaintiffs to Prosperity, not Long &

Foster itself.           Specifically, he stated that Long & Foster’s

“contact    is     not    with   the   buyers      and   sellers,”   rather    the

“independent contractors who are agents . . . have the contact

with the buyers and sellers[.]”              J.A. 1495.    He later reiterated

that “[a]gents who were affiliated with Long & Foster made the

referral.    The company itself did not make the referral.”                    J.A.

1511.



                                        17
       Further    evidence     supported     Defendants’      theory     that   the

actions of Long & Foster real estate agents did not qualify as a

referral under RESPA because Long & Foster’s agents’ actions did

not “affirmatively influenc[e]” Plaintiffs to choose Prosperity.

12 C.F.R. § 1024.14(f)(1).            For example, Long & Foster real

estate agent Konstantino Tsamouras testified that Prosperity was

not the only lender he recommended to Plaintiffs.                      The record

supports this testimony, reflecting that Tsamouras recommended

loan officers from both Prosperity and Bank of America to the

Alboroughs,      and    that   Tsamouras    referred    other    individuals     to

First Mortgage.          Further, the named Plaintiffs testified that

they shopped around and conducted an independent search for a

lender before deciding to use Prosperity and selected Prosperity

because it offered the best deal.              See J.A. 1526-30, 1563-69,

1570-71.

       Undoubtedly, the evidence would have supported a verdict

going the other way.            But in light of Plaintiffs’ failure to

move for judgment as a matter of law before the jury did its job

and the ensuing high bar Plaintiffs face, we cannot conclude

that there was an “absolute absence of evidence” supporting the

jury’s verdict.         Bristol Steel, 41 F.3d at 187.                We therefore

must   affirm     the    district   court’s    denial    of     the    Plaintiffs’

motion for a new trial.



                                       18
                                             III.

       Plaintiffs also challenge the district court’s decision to

admit testimony regarding the economic harm, or lack thereof,

that    they     suffered      due       to    using        Prosperity's          settlement

services.         “We       review       a    trial    court’s        rulings       on     the

admissibility of evidence for abuse of discretion, and we will

only    overturn      an    evidentiary        ruling       that     is    arbitrary       and

irrational.”       United States v. Cole, 631 F.3d 146, 153 (4th Cir.

2011)   (quotation         marks   omitted).          See     also   United       States    v.

Myers, 589 F.3d 117, 123 (4th Cir. 2009).                            To be admissible,

evidence must be relevant – a “low barrier” requiring only that

evidence be “worth consideration by the jury[.]”                            United States

v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (quotation marks

omitted).

       Under Federal Rule of Evidence 403, determining whether the

probative value of evidence is substantially outweighed by the

danger of unfair prejudice, misleading the jury, or confusion of

the    issues   is    within       the   district      court’s       broad    discretion.

United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).                                   We

will not overturn a Rule 403 decision “except under the most

extraordinary         of     circumstances,           where     [a        trial    court’s]

discretion      has    been    plainly        abused.”         Id.    (quotation         marks

omitted) (alteration in original).                    When reviewing the district

court’s decision to admit evidence under Rule 403, “we must look

                                              19
at the evidence in a light most favorable to its proponent,

maximizing its probative value and minimizing its prejudicial

effect.”     United States v. Udeozor, 515 F.3d 260, 265 (4th Cir.

2008) (quotation marks omitted).

     Before trial, the district court excluded Dr. Courchane’s

expert   testimony    regarding    Prosperity’s      loan   prices   and   all

other testimony, evidence, or argument about whether Plaintiffs

suffered economic injury.          The district court explained that

Plaintiffs were not required to establish economic injury to

prove their RESPA claims and that the probative value of such

evidence would be minimal.         The district court warned that “if

Plaintiffs open the door to evidence of economic injury during

their case-in-chief, [the court] will reconsider this decision.”

J.A. 1120.

     During trial, however, the district court ruled that it

would allow Defendants to question Plaintiffs about whether they

“shopp[ed] around for their mortgages” and whether they chose

Prosperity because it offered “better rates[,] lower costs, or

better   service”    than   its   competitors.       J.A.   1162   (quotation

marks    omitted).      The   district      court    explained     that    such

questioning    was   relevant     as    background    information     on    the

Plaintiffs’ claims, but it cautioned that Defendants would not

be allowed to suggest from the Plaintiffs’ “decisions to shop

around or their decision to choose Prosperity because of its

                                       20
rates and/or fees” that Plaintiffs consequently did not suffer

any economic harm.       Id.

      At   trial,     over    Plaintiffs’      objections,       Defendants       asked

witnesses    about     how    Prosperity’s      prices     compared   with       other

lenders.        See     J.A.     1538,        1568-1571,     1586-92,          1638-39.

Defendants’     witnesses      testified        that,    generally,       Prosperity

offered lower prices on loans than Wells Fargo.                    See J.A. 1592,

1638-39.     In addition, the district court allowed Defendants to

ask   whether   Plaintiffs      suffered       financial    harm    due     to    their

involvement     with     Prosperity.             See     J.A.     1536-38,        1570.

Specifically,    during       cross-examination,         Wells    Fargo’s      defense

counsel asked Minter:          “You have absolutely no evidence that by

doing your loan with Prosperity, and having Prosperity sell its

loan on the secondary market to Wells Fargo, that you incurred

any financial consequence one way or the other, negatively?”

J.A. 1538.      Minter responded that she did not know and had not

looked at Wells Fargo’s rates.                 Id.      Likewise, during cross-

examination, Prosperity’s defense counsel asked Jason Alborough

if he decided to use Prosperity because he thought Prosperity

was “giving [him] the best deal[,]” to which Jason Alborough

responded that Prosperity’s pricing was “[o]ne of the factors”

that led him to use Prosperity.            J.A. 1570.

      During    Minter’s       cross-examination,          the    district       court

distinguished       between     allowing       such     questioning       on     direct

                                         21
examination and allowing it on cross-examination, stating “the

fact of whether she has or has not suffered any economic damage

is not off the table with respect to cross-examining her[,]”

although “[i]t’s off the table with respect to any element to be

required to prove the plaintiffs’ case, and I’ll instruct the

jury in that respect.”            J.A. 1536.      During Alborough’s cross-

examination, the district court allowed questioning on whether

Alborough had received the “best deal for [his] loan[,]” saying

“He   says   he   felt   cheated,    I   think   this   cross-examination   is

appropriate.”      J.A. 1570.        The district court later explained

that:

            From  my  perspective,   the  evidence  has  not
      indicated from individual plaintiffs any financial
      loss.    To the contrary, particularly with regard to
      Mr. Alborough, who was grilled at length as to why
      he’s here as a plaintiff and never uttered a word that
      sounded to me as though there was any financial loss
      involved.
            Nor did that come from Miss Minter, in addition
      to which, as I’ve already indicated, the jury’s going
      to be instructed that financial loss is not an issue
      for them to be concerned about.
            So simply put, the door has not been opened, in
      my view.    The ruling will be as before.    Motion in
      limine sustained.

J.A. 1640.

      The district court’s decision to allow Defendants to adduce

general testimony from their own witnesses and cross-examination

testimony about Prosperity’s competitive loan pricing did not

constitute    an    abuse    of     discretion.         In   particular,   that


                                         22
testimony was relevant to determining whether Prosperity was a

sham business and whether Prosperity independently priced its

loans   to    be    competitive    in     the    market      rather    than    being

exclusively controlled by Wells Fargo and Long & Foster.

     Moreover, any potential prejudicial impact was mitigated by

the district court’s jury instructions that stated:

     [P]laintiffs are not required to prove they were
     overcharged by any of the defendants in connection
     with their loans, or that they incurred any financial
     detriment, or that they’ve suffered any poor service
     as a result of their dealings with the defendants.
          Instead, for the plaintiffs to succeed on their
     claims, they’re only required to prove that Prosperity
     was a sham because it was not a bona fide provider of
     settlement services.

J.A. 1733.

     Given    the    relevance    of    this    line    of   questioning      to   the

Plaintiffs’        claims   and    the        district       court’s    mitigating

instructions to the jury in the context of the trial as a whole—

which lasted seventeen days and had over twenty witnesses—the

district     court’s   decision    to    allow    this       limited   questioning

about Plaintiffs’ economic harm was not an abuse of discretion.

We therefore affirm these evidentiary rulings.



                                        IV.

     Finally,       Plaintiffs     contend       that     the    district      court

erroneously failed to strike, or instruct the jury to disregard,

Defendants’ improper statements during closing arguments.                          We

                                         23
review    this    issue      for   abuse   of    discretion.          See    Arnold   v.

Eastern Air Lines, Inc., 681 F.2d 186, 195, 197 (4th Cir. 1982),

rev’d on other grounds, 712 F.2d 899 (1983) (en banc); see also

United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010).

This     standard      is    met   only    where       there     is    a    “reasonable

probability” that the conduct improperly influenced the jury in

reaching        its    verdict,      i.e.,       the      conduct      “effective[ly]

subver[ted] . . . the jury’s reason or . . . its commitment to

decide the issues on the evidence received and the law as given

it by the trial court.”            Arnold, 681 F.2d at 197.

       In analyzing this issue, we recognize that this question is

“one of judgment to be exercised in review with great deference

for the superior vantage point of the trial judge and with a

close     eye    to    the    particular        context     of   the       trial   under

review[.]”       Id.    On appeal, we must consider the “‘totality of

the circumstances, including the nature of the comments, their

frequency, their possible relevancy to the real issues before

the jury, the manner in which the parties and the court treated

the comments, the strength of the case (e.g. whether it is a

close case), and the verdict itself.’”                      Id. (quoting City of

Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir.

1980)).

       Courts have found that the abuse of discretion standard was

met where attorney misconduct permeated the trial and repeatedly

                                           24
exposed the jury to improper comments.                               See Bufford v. Rowan

Cos.,     Inc.,       994    F.2d    155,        157     (5th    Cir.        1993);       City      of

Cleveland,          624     F.2d    at      758       (finding        that     “improprieties

permeated       the       entire    trial,        from    opening       statement            through

closing argument”).                By contrast, where the improper comments

were an isolated occurrence during an opening statement in the

course    of    a     three-week         trial,    this     Court      found       no    abuse      of

discretion       and      described       the     absence       of    prejudice         as    “self-

evident.”       Ins. Co. of N. Am., Inc. v. U.S. Gypsum Co., Inc.,

870 F.2d 148, 154 (4th Cir. 1989).

       In this case, defense counsel’s remarks that Plaintiffs’

counsel was putting on a “sham lawsuit” and had “an interest in

the    outcome       of     this    case”       were     inappropriate.             J.A.       1700;

Arnold,      681      F.2d     at    196-97        (finding          that    “tasteless          and

irrelevant” comments about opposing counsel “were improper under

applicable professional standards and justified censure if for

no other reason than to preserve some degree of respect among

the    attending          public    for    the     profession         and     the       process”).

However, these improper remarks about Plaintiffs’ counsel were

made during closing argument only, rather than throughout the

course of the seventeen-day trial.                        In the context of the full

trial, it is unlikely that these comments alone influenced the

jury    in     reaching      its    verdict.             Moreover,      defense         counsel’s

disparaging         reference       to    Plaintiffs’       counsel          did    not      have    a

                                                 25
direct bearing on the real issues before the jury:                whether

Prosperity    was   a   sham   provider   of   settlement   services   and

whether Long & Foster referred Plaintiffs to Prosperity.

     The district court charged the jury that the “statements,

the objections, or the arguments that were made by counsel are

not evidence in the case.”         J.A. 1731.     Further, the improper

comments did not permeate the trial, but rather were isolated,

mildly offensive remarks made during closing arguments.            Thus,

it is not reasonably probable that such comments subverted the

jury’s commitment “to decide the issues on the evidence received

and the law as given it by the trial court.”           Arnold, 681 F.2d

at 197.      Accordingly, we conclude that the district court did

not abuse its discretion in refusing to strike, or instruct the

jury to disregard, the statements.



                                    V.

     For the foregoing reasons, we affirm the judgment of the

district court.7

                                                                 AFFIRMED

     7
       Plaintiffs also challenge the district court’s decision to
dismiss Binks’s Section 8(a) claims along with Minter’s and the
Alboroughs’ claims.      In response, Defendants contend that
Plaintiffs abandoned Binks’ Section 8(a) claims. Plaintiffs did
not challenge this dismissal below, and the district court had
no opportunity to rule on it. Such a decision should have been
made in the district court in the first instance, and we
therefore do not address it.


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