     15-2054
     Mazzei v. Money Store

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2015
 6
 7
 8          (Argued: May 19, 2016         Decided: July 15, 2016)
 9
10                             Docket No. 15-2054
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   JOSEPH MAZZEI, on behalf of himself
15   and all others similarly situated,
16
17                     Plaintiff-Appellant,
18
19               - v.-
20
21   THE MONEY STORE, TMS MORTGAGE
22   INC., HOMEQ SERVICING CORP.,
23
24                     Defendants-Appellees.*
25
26   - - - - - - - - - - - - - - - - - - - -x
27

28         Before:           KEARSE, WINTER, and JACOBS, Circuit
29                           Judges.
30
31         Plaintiff-appellant Joseph Mazzei initiated a class

32   action against The Money Store et al., alleging, inter alia,

33   overcharge of late fees on mortgages, and prevailed in a

34   jury trial.     The United States District Court for the


           *
            The Clerk of Court is directed to amend the official
     caption in this case to conform to the listing of the
     parties above.
1    Southern District of New York (Koeltl, J.) (i) granted

2    defendants-appellees’ post-verdict motion to decertify

3    (under Federal Rule of Civil Procedure 23(c)(1)(C)) a class

4    that was previously certified pursuant to Rule 23(a) and

5    (b)(3); and (ii) entered judgment in favor only of Mazzei,

6    the putative class representative.

7        We hold that a district court has power, consistent

8    with the Seventh Amendment and Rule 23, to decertify a class

9    after a jury verdict and before the entry of final judgment.

10   We also hold that, in considering such decertification (or

11   modification), the district court must defer to any factual

12   findings the jury necessarily made unless those findings

13   were “seriously erroneous,” a “miscarriage of justice,” or

14   “egregious.”    Applying these principles, we conclude that

15   the district court did not abuse discretion in determining

16   that Rule 23’s requirements were not met and in decertifying

17   the class.

18       An accompanying summary order affirms the denial of

19   Mazzei’s motion for a new trial as to a second claim.

20       Affirmed.

21                                PAUL S. GROBMAN (Neal DeYoung,
22                                Sharma & DeYoung, on the brief),
23                                New York, New York, for
24                                Appellant.

                                    2
1                                 DANIEL A. POLLACK (Edward T.
2                                 McDermott, Anthony Zaccaria,
3                                 Minji Kim, on the brief),
4                                 McCarter & English, LLP, New
5                                 York, New York, for Appellees.
6
7    DENNIS JACOBS, Circuit Judge:

8        Plaintiff-appellant Joseph Mazzei initiated a class

9    action against The Money Store et al., alleging, inter alia,

10   overcharge of late fees on mortgages, and prevailed in a

11   jury trial.    The United States District Court for the

12   Southern District of New York (Koeltl, J.) (i) granted

13   defendants-appellees’ post-verdict motion to decertify

14   (under Federal Rule of Civil Procedure 23(c)(1)(C)) a class

15   that was previously certified pursuant to Rule 23(a) and

16   (b)(3); and (ii) entered judgment in favor only of Mazzei,

17   the putative class representative.

18       We hold that a district court has power, consistent

19   with the Seventh Amendment and Rule 23, to decertify a class

20   after a jury verdict and before the entry of final judgment.

21   We also hold that, in considering such decertification (or

22   modification), the district court must defer to any factual

23   findings the jury necessarily made unless those findings

24   were “seriously erroneous,” a “miscarriage of justice,” or

25   “egregious.”   Applying these principles, we conclude that



                                     3
1    the district court did not abuse discretion in determining

2    that Rule 23’s requirements were not met and in decertifying

3    the class.

4           An accompanying summary order affirms the denial of

5    Mazzei’s motion for a new trial as to a second claim.

6           Affirmed.

7

8                               BACKGROUND

9           In 1994, Joseph Mazzei obtained a mortgage loan from

10   his employer, The Money Store.     At that time, The Money

11   Store was a loan servicer and mortgage lender.    Mazzei

12   missed payments on the loan for years beginning in late

13   1997, and received three notices of default in 1998.    In

14   1999, The Money Store changed ownership, and Mazzei was laid

15   off.    Soon after, The Money Store ceased originating loans

16   and became HomEq Servicing Corp.

17          Early in 2000, The Money Store’s servicing operator,

18   TMS Mortgage Inc., notified Mazzei that he was in default;

19   Mazzei’s loan was “accelerated” (i.e., the entire sum of

20   principal and interest became due) and foreclosure

21   proceedings were begun.    Mazzei avoided a foreclosure sale

22   by filing for bankruptcy, and ultimately paid the full


                                    4
1    balance of the loan, with interest and various default fees.

2    These fees included, inter alia, attorney’s fees, and ten

3    late fees of $26.76 each--five of which were incurred after

4    acceleration.

5        Mazzei then sued The Money Store, TMS Mortgage Inc.,

6    and HomEq Servicing Corp. (collectively, “The Money Store”)

7    for breach of contract, on behalf of a putative class,

8    challenging the imposition of post-acceleration late fees

9    (and attorney’s fees2).   Citing terms set forth in the

10   Fannie Mae form loan documents that Mazzei signed when the

11   mortgage loan was originated, Mazzei contended that the Note

12   contemplated the imposition only of pre-acceleration late

13   fees, and that the imposition of post-acceleration late fees

14   violated the agreement.

15       Mazzei achieved certification of the class, defined as:

16            All similarly situated borrowers who signed form
17            loan agreements on loans which were owned or
18            serviced by the defendants and who from March 1,
19            2000 to the present . . . were charged: (A) late
20            fees after the borrower’s loan was accelerated,

          2
            The attorney’s fees claim is disposed of in a summary
     order issued simultaneously with this opinion. Mazzei also
     asserted claims under the Fair Debt Collection Practices Act
     (“FDCPA”), the Truth in Lending Act (“TILA”), and the Real
     Estate Settlement Procedures Act (“RESPA”), as well as a
     claim of unfair deceptive business practices under
     California statutory law; none of these additional claims
     went to trial, and they are not at issue on this appeal.
                                   5
1                and where the accelerated loan was paid off (“Post
2                Acceleration Late Fee Class”) . . . .

3    Order for Certification of Class Action, Mazzei v. Money

4    Store, No. 01-CV-5694 (JGK) (RLE) (S.D.N.Y. Jan. 29, 2013),

5    ECF No. 187; see also Mazzei v. Money Store, 288 F.R.D. 45,

6    56, 66-69 (S.D.N.Y. 2012).3

7        The class definition was later amended on consent to

8    exclude borrowers who signed loan mortgage agreements after

9    November 1, 2006, and (for administrative purposes) to close

10   on June 2, 2014.    Order, Mazzei v. Money Store, No. 01-CV-

11   5694 (JGK) (RLE) (S.D.N.Y. June 3, 2014), ECF No. 267.

12       The certified class action eventually went to trial.

13   The jury returned a verdict in favor of Mazzei and the class

14   on the late fee claims.    It awarded Mazzei $133.80, and it

15   awarded the class approximately $32 million plus prejudgment

16   interest.    (The jury found in favor of The Money Store on

17   the remaining claims.)

18       After trial, and before the entry of judgment, The

19   Money Store moved for decertification of the class pursuant

20   to Federal Rule of Civil Procedure 23(c)(1)(C), or, in the


          3
            The district court declined to certify three
     additional potential classes that corresponded to three
     additional breach-of-contract theories. See Mazzei, 288
     F.R.D. at 57-62.
                                     6
1    alternative, the entry of judgment as a matter of law on the

2    class late fee claims pursuant to Federal Rule 50.        The

3    class was composed of borrowers whose loans were either

4    owned by The Money Store (via origination or assignment) or

5    serviced by it.   Both motions were based in relevant part on

6    Mazzei’s failure to prove class-wide privity of contract

7    between The Money Store and those borrowers whose loans it

8    only serviced, and did not own.       The district court agreed

9    that Mazzei’s failure to prove privity with respect to such

10   absent class members defeated class certification on grounds

11   of typicality and predominance.      The district court

12   therefore granted The Money Store’s motion for

13   decertification of the class.       Mazzei v. Money Store, 308

14   F.R.D. 92, 106-07, 109-13 (S.D.N.Y. 2015).      The district

15   court also opined that it would have granted The Money

16   Store’s motion for judgment as a matter of law if

17   decertification had not been appropriate.      Id. at 113.

18   Judgment was entered for Mazzei on his individual late fee

19   claim.

20       Mazzei challenges the decertification4 on the grounds,

21   inter alia, that decertification is unavailable after a jury

          4
            Mazzei also appeals the district court’s denial of
     Mazzei’s motion for a new trial on the fee-splitting claim.
     See Mazzei, 308 F.R.D. at 100-06. We affirm that decision
     in an accompanying summary order.
                                     7
1    verdict in favor of a certified class; that the findings

2    made to support decertification were incompatible with the

3    Seventh Amendment; and that the Rule 23 requirements for

4    class certification were satisfied.    We affirm.

5

6                              DISCUSSION

7                                  I

8        Federal Rule of Civil Procedure 23(c)(1)(C) provides

9    that “[a]n order that grants or denies class certification

10   may be altered or amended before final judgment.”     Fed. R.

11   Civ. P. 23(c)(1)(C).   Mazzei argues nevertheless that a

12   class may not be decertified after a jury verdict in its

13   favor because such decertification is tantamount to

14   overturning a jury verdict, for which the only procedural

15   avenue available is judgment as a matter of law under Rule

16   50(b); and decertification would violate the class members’

17   Seventh Amendment right to a jury trial.5


          5
            Defendants do not argue that these arguments are
     waived, although it is unclear that Mazzei raised them in
     the district court. In any event, because our waiver
     doctrine is “prudential, not jurisdictional, we have
     discretion to consider waived arguments, and we have
     exercised this discretion where necessary to avoid a
     manifest injustice or where the argument presents a question
     of law and there is no need for additional fact-finding.”
     Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.
                                   8
1                                 A

2        Federal Rule 23 and our case law confirm that a

3    district court may decertify a class after a jury verdict

4    and before the entry of final judgment.6   In deciding an

5    appeal of a denial of a motion to decertify after a jury

6    verdict in a class’s favor, we observed that “a district

7    court may decertify a class if it appears that the

8    requirements of Rule 23 are not in fact met.”   Sirota v.

9    Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982)

10   (discussing post-trial motion to decertify after jury

11   verdict in favor of subclass); see also Rossini v. Ogilvy &

12   Mather, Inc., 798 F.2d 590, 596 (2d Cir. 1986) (affirming

13   decertification of one class after bench trial based on

14   evidence; reversing decertification of two other classes).

15       A district court’s exercise of discretion is set forth

16   clearly in both the wording and commentary of Rule 23.      See

17   Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies


     2006) (internal quotation marks, citations, and brackets
     omitted). Because defendants do not argue waiver, and
     because Mazzei’s argument involves a constitutional right
     and a question of law, we consider the argument.
          6
            Of course, the Federal Rules authorize the use of
     additional post-trial procedural devices, such as a motion
     for a new trial. See, e.g., Fed. R. Civ. P. 59(a).
     Mazzei’s argument either overlooks or ignores these
     procedures.
                                  9
1    class certification may be altered or amended before final

2    judgment.”); Fed. R. Civ. P. 23(c)(1) advisory committee’s

3    notes to 2003 amendment (“A determination of liability after

4    certification, however, may show a need to amend the class

5    definition.   Decertification may be warranted after further

6    proceedings.”); see also 7AA Wright et al., Federal Practice

7    & Procedure § 1785.4 (3d ed. 2016 update) (“Reference to the

8    final judgment [in Rule 23(c)(1)(C)] avoids a possible

9    ambiguity under the prior rule, making clear that after a

10   determination of liability it may be permissible to amend

11   the class definition or subdivide the class if it becomes

12   necessary in order to define the remedy or if

13   decertification is warranted.”).

14       Indeed, because the results of class proceedings are

15   binding on absent class members, see Fed. R. Civ. P.

16   23(c)(3), the district court has the affirmative “duty of

17   monitoring its class decisions in light of the evidentiary

18   development of the case.”   Richardson v. Byrd, 709 F.2d

19   1016, 1019 (5th Cir. 1983) (“The district judge must define,

20   redefine, subclass, and decertify as appropriate in response

21   to the progression of the case from assertion to facts.”);

22   see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812



                                   10
1    (1985) (“[T]he Due Process Clause of course requires that

2    the named plaintiff at all times adequately represent the

3    interests of the absent class members.” (emphasis added)).

4    The power to decertify a class after trial when appropriate

5    is therefore not only authorized by Federal Rule 23 but is a

6    corollary.7

7                                    B

8             The Seventh Amendment, which applies in federal court

9    proceedings, is not to the contrary.     The Amendment has two

10   parts:     The Trial by Jury Clause preserves a litigant’s

11   right to a jury trial in a subset of civil cases; the

12   Reexamination Clause provides that “no fact tried by a jury,



          7
            See also In re Visa Check/MasterMoney Antitrust
     Litig., 280 F.3d 124, 141 (2d Cir. 2001) (concluding that
     district court did not abuse discretion in certifying class
     where it “specifically recognized its ability to modify its
     class certification order, sever liability and damages, or
     even decertify the class if such an action ultimately became
     necessary”), overruled on other grounds by In re IPO Sec.
     Litig., 471 F.3d 24 (2d Cir. 2006), and superseded by
     statute on other grounds as stated in Attenborough v.
     Constr. & Gen. Bldg. Laborers’ Local 79, 238 F.R.D. 82, 100
     (S.D.N.Y. 2006); Boucher v. Syracuse Univ., 164 F.3d 113,
     118 (2d Cir. 1999) (“[U]nder Rule 23(c)(1), courts are
     ‘required to reassess their class rulings as the case
     develops.’” (quoting Barnes v. Am. Tobacco Co., 161 F.3d
     127, 140 (3d Cir. 1998))); Green v. Wolf Corp., 406 F.2d
     291, 298 & n.10 (2d Cir. 1968) (Kaufman, J.) (a court should
     err on the side of certification because certification “is
     always subject to modification should later developments
     during the course of the trial so require” (quoting Esplin
     v. Hirsi, 402 F.2d 94, 99 (10th Cir. 1968))).
                                     11
1    shall be otherwise re-examined in any Court of the United

2    States, than according to the rules of the common law.”

3    U.S. Const. amend. VII.

4           As to Mazzei, there is no Seventh Amendment issue at

5    all.    Mazzei will receive damages on his individual claim in

6    the amount awarded him by the jury.    And he has no

7    constitutional right to represent a class; whether he may do

8    so is purely a matter of Rule 23.

9           As to the class, there is no violation.   The right of

10   absent class members to adjudication by jury is unimpaired.

11   Their claims survive by virtue of American Pipe tolling.

12   See American Pipe & Constr. Co. v. Utah, 414 U.S. 538

13   (1978).    Under this rule, the filing of a putative class

14   action tolls the statute of limitations with respect to all

15   absent would-be class members until the time class

16   certification is denied.    See American Pipe, 414 U.S. at

17   554; Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54

18   (1983).    Therefore, any putative member of the decertified

19   class who wishes to do so may file an individual action

20   seeking breach-of-contract damages on a similar claim (so

21   long as the individual action is instituted during whatever

22   amount of time remains in the limitations period).     See

23   Crown, Cork & Seal, 462 U.S. at 347, 353-54.


                                    12
1        The district court’s decertification thus has the same

2    effect as would a grant of a motion for a new trial pursuant

3    to Federal Rule 59(a).   The grant of such a motion does not

4    mean that there must be a new trial, or that there will be

5    one; it just means that there can be one if an individual

6    claimant chooses to continue pursuit of the claim.        It is

7    beyond dispute that the grant of such a motion does not

8    violate the Seventh Amendment.        See Gasperini v. Ctr. for

9    Humanities, Inc., 518 U.S. 415, 432-33 (1996); Byrd v. Blue

10   Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 539-40 (1958);

11   Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250 (1940);

12   Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d

13   Cir. 2012); United States v. Landau, 155 F.3d 93, 104-06 (2d

14   Cir. 1998).

15       There are many procedural devices that impose “judicial

16   control on juries,” Binder v. Long Island Lighting Co., 57

17   F.3d 193, 202 (2d Cir. 1995), abrogated in part on other

18   grounds in banc by Fisher v. Vassar Coll., 114 F.3d 1332,

19   1340 (2d Cir. 1997), and such controls are not only

20   compatible with the Seventh Amendment jury trial right, but

21   necessary to the institution.        See Dagnello v. Long Island

22   R.R. Co., 289 F.2d 797, 805 (2d Cir. 1961) (“The jury does

23   not function alone, but in cooperation with the judge


                                     13
1    presiding over the trial. . . . Without judicial supervision

2    over what Blackstone called the ‘misbehavior’ of juries, a

3    trial by jury would lack one of ‘the essentials of the jury

4    trial as it was known to the common law before the adoption

5    of the Constitution.’” (footnotes omitted)).   Permissible

6    controls include certain procedures that were “not in

7    conformity with practice at common law when the Amendment

8    was adopted.”   Gasperini, 518 U.S. at 436 n.20.

9        The right of absent class members to a jury trial is

10   protected, not impaired, by the Rule 23(c)(1)(C)

11   decertification procedure, which protects their due process

12   rights (and defendants’) by ensuring that any class claim

13   that proceeds to final judgment--and thus binds them--is

14   fairly and appropriately the subject of class treatment.

15   See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011)

16   (“Rule 23(a) ensures that the named plaintiffs are

17   appropriate representatives of the class whose claims they

18   wish to litigate.”); Amchem Prods., Inc. v. Windsor, 521

19   U.S. 591, 621 (1997) (“Subdivisions (a) and (b) [of Rule 23]

20   focus court attention on whether a proposed class has

21   sufficient unity so that absent members can fairly be bound

22   by decisions of class representatives.”); Shutts, 472 U.S.

23   at 812 (consistent with the Due Process Clause, absent class


                                   14
1    members may be bound to a class judgment only if they are

2    adequately represented by the named plaintiffs); Hansberry

3    v. Lee, 311 U.S. 32, 42-43, 45 (1940) (same); see also supra

4    Part I.A.

5                                  C

6        Decertification in this case provokes a further

7    question: the power of the court to make the findings that

8    supported its ruling.   Decertification was based on the

9    district court’s determination that Mazzei had failed to

10   prove through class-wide evidence at trial that borrowers

11   whose loans were only serviced (not owned) by The Money

12   Store were nevertheless in a contractual relationship with

13   The Money Store.   This factual question--whether Mazzei

14   proved that absent class members were in privity with The

15   Money Store--was both relevant to the (de)certification

16   motion and an element of the class’s merits claim.    And on

17   the merits, the jury obviously found that privity has been

18   established.

19       Normally, the district court resolves factual issues

20   related to class certification, making its findings based on

21   the preponderance of the evidence,8 even if they overlap

          8
            See Teamsters Local 445 Freight Div. Pension Fund v.
     Bombardier Inc., 546 F.3d 196, 202-03 (2d Cir. 2008)
     (holding that the “preponderance of the evidence standard
     applies to evidence proffered to establish Rule 23's
     requirements”).
                                   15
1    with the merits of the case.    See Amgen v. Conn. Ret. Plans

2    & Trust Funds, 133 S. Ct. 1184, 1195 (2013) (“Merits

3    questions may be considered to the extent . . . that they

4    are relevant to determining whether the Rule 23

5    prerequisites for class certification are satisfied.”);

6    Dukes, 564 U.S. at 351 (“Frequently that ‘rigorous [Rule 23]

7    analysis’ will entail some overlap with the merits of the

8    plaintiff’s underlying claim.        That cannot be helped.”).

9    But such findings do not bind the trier of fact.        In re IPO,

10   471 F.3d at 41.   The question becomes:       How does a jury’s

11   factual finding impact the district court’s decision about

12   whether decertification is appropriate or not?

13       We hold that when a district court considers

14   decertification (or modification) of a class after a jury

15   verdict, the district court must defer to any factual

16   findings the jury necessarily made unless those findings

17   were “seriously erroneous,” a “miscarriage of justice,” or

18   “egregious.”   See Raedle, 670 F.3d at 418.       This is the

19   standard that a district court applies to a Rule 59 motion

20   for a new trial on weight-of-the-evidence grounds; and we

21   conclude that it is appropriate in this context as well.9


          9
            The judge is permitted to “weigh the evidence and the
     credibility of witnesses and need not view the evidence in
     the light most favorable to the verdict winner,” but “should
                                     16
1    As to questions of fact that are not necessarily decided by

2    the jury’s verdict, the court can make its own factual

3    findings based on the preponderance of the evidence as is

4    usually done when making a determination about class

5    certification.

6        For the reasons discussed supra (Part I.B), the Seventh

7    Amendment is not violated by the district court’s evaluation

8    of trial evidence in ruling on the procedural issue of

9    decertification.   That is what trial judges do when

10   considering a motion for a new trial on the ground that the

11   verdict was against the weight of the evidence.    See Landau,

12   155 F.3d at 106 (the Seventh Amendment does not prevent a

13   district court from “substitut[ing] its view of the evidence

14   for that of the jury, provided the judge is ‘convinced that

15   the jury has reached a seriously erroneous result or that

16   the verdict is a miscarriage of justice’”).   At the same

17   time, we have explained that the judge’s power to do so is

18   in “tension” with the Seventh Amendment.   Raedle, 670 F.3d

19   at 418; Landau, 155 F.3d at 105 (same).    Given that

20   “tension” (here, with the Reexamination Clause), it is



     rarely disturb a jury’s evaluation of a witness’s
     credibility . . . simply because the judge disagrees with
     the jury.” Raedle, 670 F.3d at 418 (citations and internal
     quotation marks omitted).
                                   17
1    imprudent and likely improper to further relax the standard

2    by which a trial court may “substitute its view of the

3    evidence for that of the jury.”     Landau, 155 F.3d at 106.

4    By respecting the jury’s work, the Seventh Amendment issue

5    is avoided.10   This approach makes full use of the work the

6    jury has already done; and it fits the post-trial procedural

7    scheme set forth in Federal Rules 50(b) and 59(a).

8        Mazzei argues that post-verdict decertification should

9    be constrained by the Rule 50 standard of “legally

10   insufficient evidence.”    See Fed. R. Civ. P. 50(a)(1);

11   Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d

12   276, 289 (2d Cir. 1998).    That stringent standard is not

13   called for because (unlike the grant of a Rule 50 motion)

14   decertification does not resolve the claims of the class--

15   which withstand decertification and survive unimpaired.      The

16   “seriously erroneous” formulation better comports with the

17   district court’s authority to manage the class action and to


          10
            See also 11 Wright et al., Federal Practice &
     Procedure § 2806 (3d ed. 2016 update) (“The judge’s power to
     set aside the verdict is supported by clear precedent at
     common law and, far from being a denigration or a usurpation
     of jury trial, has long been regarded as an integral part of
     trial by jury as we know it. On the other hand, a decent
     respect for the collective wisdom of the jury, and for the
     function entrusted to it in our system, certainly suggests
     that in most cases the judge should accept the findings of
     the jury, regardless of the judge’s own doubts in the
     matter.” (footnote omitted)).
                                    18
1    protect the rights of absent class members, see, e.g., Fed.

2    R. Civ. P. 23(d), (e); it respects the trial court’s

3    position as best-situated to evaluate class issues, see In

4    re Sumitomo Copper Litig., 262 F.3d 134, 139 (2d Cir. 2001)

5    (referring to Second Circuit’s “longstanding view that the

6    district court is often in the best position to assess the

7    propriety of the class”); and it recognizes Rule 23's

8    explicit contemplation of post-merits decertification,

9    see Fed. R. Civ. P. 23(c)(1)(C).

10

11                                  II

12       A district court order granting or denying class

13   certification is reviewed for abuse of discretion.     Myers v.

14   Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).   This

15   standard applies to the ultimate decision on class

16   certification and to rulings on each of the Rule 23

17   requirements.   Id.   A district court decision granting

18   certification is given greater deference than a decision

19   denying certification (or, a fortiori, an order decertifying

20   a class).   See Johnson v. Nextel Commc’ns Inc., 780 F.3d

21   128, 137 (2d Cir. 2015) (citing Moore v. PaineWebber, Inc.,

22   306 F.3d 1247, 1252 (2d Cir. 2002)).

23


                                    19
1        A plaintiff seeking certification of a Rule 23(b)(3)

2    damages class action has the burden to establish numerosity,

3    commonality, typicality, adequacy of representation,

4    predominance of common questions of law or fact, and the

5    superiority of a class action to other procedures.       Fed. R.

6    Civ. P. 23(a), (b)(3); see Amgen, 133 S. Ct at 1191;

7    Teamsters Local 445, 546 F.3d at 202-03.        In opposing the

8    decertification motion, Mazzei retained the burden to

9    demonstrate that these requirements were satisfied.        See

10   Rossini, 798 F.2d at 596-600; cf. Rubinstein, Newberg on

11   Class Actions § 7:22 (5th ed. 2016 update) (when a defendant

12   moves for an order denying class certification, the burden

13   to prove compliance with Rule 23 remains with the

14   plaintiff).

15       The class included borrowers whose loans were either

16   owned or serviced by The Money Store.        To prove a breach-of-

17   contract claim on its behalf, Mazzei was required to prove,

18   inter alia, that class members were in a contractual

19   relationship with defendants.        See Diesel Props S.R.L. v.

20   Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir.

21   2011).   The decertification was based on Mazzei’s failure to

22   prove through class-wide evidence the existence of privity

23   between The Money Store and those class members whose loans


                                     20
1    were serviced but not owned by it.    This factual question

2    was relevant both to the merits of the class claim and to

3    the certification inquiry.

4        The jury found that privity was proven; the district

5    court found to the contrary, and determined that typicality

6    and predominance were therefore both lacking.    As held supra

7    (Part I.C), the district court was required to defer to the

8    jury’s finding of fact as to privity unless the finding was

9    “seriously erroneous,” a “miscarriage of justice,” or

10   “egregious.”   It is therefore significant that the district

11   court ruled in the alternative that the evidence for such a

12   finding was legally insufficient.11   Having found the

13   evidence legally insufficient, the court a fortiori found

14   that the jury’s finding was at least “seriously erroneous.”

15       This was not an abuse of discretion.    We also conclude

16   that the district court did not abuse discretion in



          11
            Defendants moved in the alternative for judgment as
     a matter of law pursuant to Rule 50(b), and the district
     court explained that it would grant this motion were it to
     reach it. See Mazzei, 308 F.R.D. at 113 (“[D]efendants
     would be entitled to judgment as a matter of law on the
     claim on behalf of the Late Fee Class because of the
     ‘complete absence of evidence’ supporting a contractual
     relationship between the members of the Late Fee Class and
     the defendants.” (quoting Galdieri-Ambrosini, 136 F.3d at
     288-90)). In fact, the district court appears to have
     applied the Rule 50 standard in adjudicating the motion for
     decertification. See id. at 110-13.
                                   21
1    determining that, given the failure of class-wide evidence

2    as to privity at trial, Rule 23(a) and (b)(3) requirements

3    were not satisfied and decertification was therefore

4    warranted.

5                                  A

6        To establish privity, Mazzei relies exclusively on

7    testimony by Adam Levitin, Mazzei’s opening expert witness

8    concerning mortgages and mortgage securitizations, and the

9    single Pooling and Service Agreement (“PSA”) introduced at

10   trial, which applied to Mazzei’s 1994 loan.12   Levitin

11   testified generally as to mortgages and securitizations,

12   described the life of a hypothetical loan issued to “Betty

13   Borrower,” and (in the course of that testimony) opined that

14   the hypothetical servicer of the hypothetical borrower’s

15   loan would be assigned rights to payment; and that if the

16   servicer did not credit those payments Betty Borrower could

17   sue the servicer for breach of contract.   App’x 2787-89; see

18   also App’x 2792 (opining that “once you have delegated

19   duties under the contract, you have stepped into the shoes

20   of the original party to the contract”).



          12
            Mazzei’s spoliation-based argument was not raised
     below and is therefore waived. See In re Nortel Networks
     Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008); see
     also Dist. Ct. Dkt. 497; App’x 5302-17.
                                  22
1        Levitin also opined that the PSA for Mazzei’s loan

2    (which was originated by a defendant entity in 1994) imposed

3    certain duties on the servicer (another defendant) in

4    connection with servicing the loan, including the power to

5    waive or modify the terms of the loan and to collect checks,

6    assess fees, etc.    App’x 2804-05.   Mazzei’s PSA, Levitin

7    opined, was “typical” of the securitization industry, “not

8    an outlier deal.”    App’x 2811.

9        However, Levitin specifically conceded that he was

10   “expressing no opinion whatsoever on the defendants in this

11   case.”    App’x 2813; see also App’x 2807 (describing “the

12   role I’ve been asked to play here explaining the background

13   of how mortgage lending works today”).     And there was no

14   other evidence linking Levitin’s testimony about the

15   hypothetical borrower and about the mortgage and

16   securitization industries generally to the particular loans

17   of absent class members.13   We conclude that, given


          13
            Mazzei argues that The Money Store did not object to
     Levitin’s testimony, and that testimony regarding industry
     custom and practice is admissible in breach-of-contract
     actions. See Br. of Appellant 48; Reply Br. 17 (citing
     cases). True; but the issue is whether the testimony
     (admissible or not) supported the jury finding that a
     contract existed between defendants and absent class
     members. See Cherry River Music Co. v. Simitar Entm’t,
     Inc., 38 F. Supp. 2d 310, 319 & n.56 (S.D.N.Y. 1999)
     (“industry custom and usage . . . ‘cannot create a contract
     where there has been no agreement by the parties’” (quoting
                                    23
1    Levitin’s disclaimer as to the particulars of the case, and

2    for substantially the reasons stated in the district court’s

3    opinion, Levitin’s testimony was not an impediment to the

4    court’s conclusion that the jury’s verdict was “seriously

5    erroneous,” a “miscarriage of justice,” or “egregious.”14

6                                  B

7        “Rule 23(a) ensures that the named plaintiffs are

8    appropriate representatives of the class whose claims they

9    wish to litigate,” Dukes, 564 U.S. at 349, by “effectively

10   ‘limit[ing] the class claims to those fairly encompassed by

11   the named plaintiff’s claims,’” General Tel. Co. of Sw. v.

12   Falcon, 457 U.S. 147, 156 (1982) (quoting General Tel. Co.

13   of Nw. v. EEOC, 446 U.S. 318, 330 (1980)).

14       Typicality requires that “the disputed issue[s] of law

15   or fact occupy essentially the same degree of centrality to

16   the named plaintiff’s claim as to that of other members of

17   the proposed class.”   Cardidad v. Metro-N. Commuter R.R.,

18   191 F.3d 283, 293 (2d Cir. 1999) (internal quotation marks



     Stulsaft v. Mercer Tube & Mfg. Co., 43 N.E.2d 31, 33 (N.Y.
     1942)) (citing cases)).
          14
            Since the Rule 59(a) standard applies in this
     context, we need not decide whether Levitin’s generalized
     testimony was legally insufficient to support a jury finding
     that class members whose loans were not originated by (or
     expressly assigned to) The Money Store were in privity.
                                   24
1    omitted), overruled on other grounds by In re IPO, 471 F.3d

2    24.   One purpose of the typicality requirement is “to ensure

3    that . . . ‘the named plaintiff’s claim and the class claims

4    are so interrelated that the interests of the class members

5    will be fairly and adequately protected in their absence.’”

6    Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372, 376 (2d

7    Cir. 1997).

8          The Money Store did not deny its contractual

9    relationship with class members (such as Mazzei) whose loans

10   it owned; but it did dispute privity as to other class

11   members.   Whether borrowers whose loans were serviced but

12   not owned by The Money Store were in fact in privity with

13   The Money Store is an issue central to the claims of those

14   class members.   The issue is not central to Mazzei’s

15   individual claim (a misalignment of interests that may be

16   one reason for Mazzei’s failure to introduce sufficient

17   evidence on their behalf).   The district court’s post-trial

18   ruling as to typicality was not an abuse of discretion.15

19



           15
            Mazzei argues for the first time on appeal that, if
     he was no longer “typical,” the court should have simply
     substituted a new class representative. This argument is
     waived for failure to raise it below. See In re Nortel
     Networks, 539 F.3d at 133; see also Dist. Ct. Dkt. 497;
     App’x 5302-17.
                                   25
1        “The ‘predominance’ requirement of Rule 23(b)(3) ‘tests

2    whether proposed classes are sufficiently cohesive to

3    warrant adjudication by representation.’”   Myers, 624 F.3d

4    at 547 (quoting Amchem, 521 U.S. at 623).   “The

5    requirement’s purpose is to ‘ensure[] that the class will be

6    certified only when it would achieve economies of time,

7    effort, and expense, and promote uniformity of decision as

8    to persons similarly situated, without sacrificing

9    procedural fairness or bringing about other undesirable

10   results.’”   Id. (quoting Cordes & Co. Fin. Servs., Inc. v.

11   A.G. Edwards & Sons, Inc., 502 F.3d 91, 104 (2d Cir. 2007)).

12   “Therefore the requirement is satisfied ‘if resolution of

13   some of the legal or factual questions that qualify each

14   class member’s case as a genuine controversy can be achieved

15   through generalized proof, and if these particular issues

16   are more substantial than the issues subject only to

17   individualized proof.’”   Id. (quoting Moore, 306 F.3d at

18   1252).

19       A class-wide resolution to the privity question was not

20   possible because, without class-wide evidence that class

21   members were in fact in privity with The Money Store, the

22   fact-finder would have to look at every class member’s loan

23   documents to determine who did and who did not have a valid


                                   26
1    claim.   See Dukes, 564 U.S. at 351 (“What matters to class

2    certification . . . is . . . the capacity of a classwide

3    proceeding to generate common answers apt to drive the

4    resolution of the litigation.        Dissimilarities within the

5    proposed class are what have the potential to impede the

6    generation of common answers.” (quoting Nagareda, Class

7    Certification in the Age of Aggregate Proof, 84 N.Y.U. L.

8    Rev. 97, 132 (2009))).

9        The district court identified the common questions

10   raised in the pleading: whether defendants charged post-

11   acceleration late fees and whether this breached the Fannie

12   Mae form agreement.   It was “within the range of permissible

13   decisions” for the court to determine that these questions

14   did not predominate over the individual questions of whether

15   each class member was in a contractual relationship with

16   defendants.   See Myers, 624 F.3d at 550-51 (affirming denial

17   of class certification for failure to demonstrate

18   predominance of common issues over individualized defenses).

19

20                                III

21       “[O]rdinarily, if a court discerns a conflict . . . the

22   proper solution is to create subclasses of persons whose

23   interests are in accord.”   Boucher v. Syracuse Univ., 164


                                     27
1    F.3d 113, 118-19 (2d Cir. 1999) (quoting Payne v. Travenol

2    Labs, Inc., 673 F.2d 798, 812 (5th Cir. 1982)).    Here,

3    however, there was no apparent basis on which the court or

4    the parties could have determined which members of the Late

5    Fee Class had loans that were owned by The Money Store, and

6    which had loans that were only serviced by The Money Store.

7    So decertification was appropriate rather than a narrowing

8    of the class definition or creation of subclasses.

9        Mazzei cites testimony that The Money Store originated

10   130,000 of the approximately 185,000 loans that were being

11   serviced by it in 2000, the beginning of the class period,

12   and speculates that the Late Fee Class’s loans were among

13   these defendant-originated loans.    There is no evidence at

14   all about which, if any, of these loans satisfied criteria

15   for membership in the class.   Notably, The Money Store

16   stopped originating loans in 200116; by 2003, The Money

17   Store was servicing approximately 380,000 loans; and the

18   class period extended into 2014.    Over its full span of

19   years, the database contained over one million loans.       It is

20   entirely unclear how many loans serviced by The Money Store

21   during the full class period were owned by it.


          16
            One example loan that Mazzei’s database expert
     presented to the jury was originated in 2006–-this loan
     could not have been originated by The Money Store.
                                    28
1                       CONCLUSION

2   For the foregoing reasons, the judgment is affirmed.




                            29
