                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
BENJAMIN COLEMAN, through his     )
Conservator, ROBERT BUNN, et al., )
                                   )
               Plaintiffs,         )
                                   ) Civ. Action No. 13-1456 (EGS)
          v.                       )
                                   )
DISTRICT OF COLUMBIA,              )
                                   )
               Defendant.          )
__________________________________)

                       MEMORANDUM OPINION

  Benjamin Coleman brought this lawsuit to challenge a District

of Columbia law that directed the sale of a lien on his home

after he failed to pay a $133.88 property-tax bill. That law

permitted the private purchaser of the lien to add $4,999 in

interest, costs, and fees to Mr. Coleman’s bill and, when Mr.

Coleman could not pay, to institute a foreclosure proceeding.

After the foreclosure proceeding, the private purchaser obtained

title to Mr. Coleman’s home. Mr. Coleman, however, received

nothing, although the amount of equity he had in his home far

surpassed the amount he admittedly owed in taxes, interest,

costs, and related fees. Because the loss of this surplus equity

was dictated by District of Columbia law, Mr. Coleman sued to

challenge that law. His claim is that the taking of his excess

equity—the amount of equity minus the taxes and related costs he

admits that he owed—violated his constitutional rights under the
Takings Clause of the Fifth Amendment to the United States

Constitution. As a remedy for the alleged constitutional

violation, Mr. Coleman asked this Court to award him monetary

damages and to issue a declaratory judgment. Mr. Coleman brought

this case not only on his own behalf, but also as a

representative of all District property owners who suffered a

loss of excess equity due to the District’s tax-sale law.

  In September of 2014, this Court rejected the District’s

attempt to dismiss the case. See Coleman ex rel. Bunn v.

District of Columbia, No. 13-1456, 2014 WL 4819092 (D.D.C. Sept.

30, 2014). Subsequently, the Court permitted Mr. Coleman to

amend his Complaint to add a second named plaintiff, the Estate

of Jean Robinson. Ms. Robinson, like Mr. Coleman, lost her

excess equity due to the District’s tax-sale law. Her son,

Wellington Robinson, as personal representative of her estate,

seeks the same relief as Mr. Coleman.

  Mr. Coleman and Ms. Robinson’s Estate now ask the Court to

certify this lawsuit as a class action, to permit them to

represent all other District of Columbia property owners who

similarly lost equity in excess of the amount of taxes and

related fees they owed because of the tax-sale law. Upon

consideration of their motion, the response and reply thereto,

the applicable law, the entire record, and the oral argument,

the Court concludes that Mr. Coleman and Ms. Robinson’s Estate


                                2
are entitled to certification as a class action and GRANTS their

motion.

I.        Background

     A.     The Challenged Tax-Sale Statutes

     “The District of Columbia’s laws governing the procedure for

collecting delinquent property taxes are codified in Chapter 13A

of title 47 of the D.C. Code.” Coleman, 2014 WL 4819092, at

*2. When a property-tax payment becomes delinquent, that tax

obligation “automatically become[s] a lien on the real

property.” D.C. Code § 47–1331(a). The District is then required

to “sell all real property on which the tax is in

arrears.” Id. § 47–1332(a). These sales follow a defined

procedure:

          “At least 30 days before” any such sale is to be
          advertised, “the Mayor shall mail to the person who last
          appears as owner of the real property on the tax roll .
          . . a notice of delinquency.” Id. § 47–1341(a). Once
          thirty days have passed “from the mailing of the notice
          of delinquency,” the District must advertise that the
          property “will be sold at public auction because of
          taxes.” Id. § 47–1342(a). At this public sale, the
          District must sell the property “in its entirety,” id. §
          47–1343, “to the purchaser who makes the highest
          bid.” Id. § 47–1346(a)(2). Sales are not to be conducted
          “for less than the amount of the taxes,” however. Id. §
          47–1346(c).

Coleman, 2014 WL 4819092, at *2.

     During the six months following the sale, “the purchaser may

not foreclose the original owner’s right to redeem the

property.” Id. (citing D.C. Code § 47–1370(a)). The original


                                     3
owner is able to redeem the property “by paying to the District

‘the amount paid by the purchaser . . . exclusive of surplus

with interest thereon,’ as well as ‘other taxes, interest, and

penalties paid by a purchaser,’ and ‘expenses for which the

purchaser is entitled to reimbursement.’” Id. (citing D.C. Code

§ 47–1361(a)).

  After the redemption period closes, the purchaser “may file a

complaint to foreclose the right of redemption of the real

property.” D.C. Code § 47–1370(a). “The purchaser of the tax-

sale certificate must bring the action against the original

owner of the property and the District of Columbia, as well as

any entity with a particular interest in the property.” Coleman,

2014 WL 4819092, at *2 (citing D.C. Code § 47–1371(b)(1)). The

Court has described the potential effects of such a legal

action:

       The law permits the Superior Court to issue a final
       judgment “foreclosing the right of redemption,” which
       bars the original owner from redeeming the property and
       vests in the purchaser a deed in fee simple. See id. §
       47–1382(a). In doing so, the law permits the taking of
       not only the amount of delinquent taxes, plus any costs,
       fees, and interest, but also the entirety of the original
       owner’s equity in the property.

Id.

  B.      The District’s Amended Tax-Sale Statute

  After this lawsuit was filed in 2013, the D.C. Council passed

two temporary amendments to the District’s tax-sale law. On



                                  4
October 4, 2013, the Council passed an emergency amendment,

which served, among other things, “to cancel any tax sale that

occurred for the July 2013 tax sale of a resident’s real

property who is a senior citizen, veteran, or disabled

individual” and “to require the District to pay the owner of

record before the tax sale any amount . . . in excess of the

amount of taxes due to the District.” District Real Property Tax

Sale Emergency Act, A20-179, pmbl.; see also id. § 2. On October

17, 2013, the District passed a temporary amendment, which

codified the October 4th emergency amendment. See District Real

Property Tax Sale Temporary Act of 2013, A20-194, § 2.

  In 2014, the D.C. Council enacted another temporary emergency

measure, which expired on August 26, 2014. See Residential Real

Property Equity and Transparency Emergency Amendment Act of

2014, A20-342. That amendment modified the procedures for future

tax sales to, among other things, provide for the return of a

portion of the excess equity to the former homeowner after the

sale occurs. See id. § 101(c)(31). A permanent amendment to the

District’s tax-sale law, with similar effect, has now been

passed. See D.C. Fiscal Year 2015 Budget Support Act of 2014,

A20-424, § 7102(c)(30). That amendment appears to have taken

effect on February 26, 2015. See B20-0750 – Fiscal Year 2015

Budget Support Act of 2014, D.C. Council, http://lims.dccouncil.

us/Legislation/B20-0750 (last visited April 13, 2015).


                                5
  C.   Procedural History

  This lawsuit was filed on behalf of Mr. Coleman by Robert

Bunn, who was appointed by the Superior Court “to manage

Mr. Coleman’s legal and financial affairs.” Compl., ECF No. 1 ¶

15. The District moved to dismiss this case, arguing that the

Court lacked jurisdiction over Mr. Coleman’s claims and that he

failed to state a claim for a violation of the Takings Clause.

See Def.’s Mot. to Dismiss, ECF No. 5. While that motion was

pending, Mr. Coleman moved for class certification. See First

Mot. to Certify Class, ECF No. 12.

  The Court held a hearing on the District’s motion to dismiss

on September 26, 2014, and issued its Opinion denying the motion

on September 30, 2014. See Coleman, 2014 WL 4819092. The Court’s

Order denying the motion to dismiss directed the parties to

“file supplemental briefs addressing the effect, if any, of the

accompanying Memorandum Opinion on plaintiff’s pending motion

for class certification.” Order, ECF No. 17 at 1. While the

parties were briefing this issue, Mr. Coleman moved for leave to

submit an amended complaint, to add as a named plaintiff the

Estate of Jean Robinson. See Mot. to Amend, ECF No. 20. The

District opposed the motion on the grounds that amendment would

be futile because Ms. Robinson’s will had not been admitted to

probate, and her son, Wellington Robinson, had not been

appointed as representative of her estate. See Opp. to Mot. to


                                6
Amend, ECF No. 22. At Mr. Coleman’s request, the Court deferred

ruling on this motion while probate proceedings were underway.

  On December 29, 2014, Mr. Coleman informed the Court that Ms.

Robinson’s will had been admitted to probate and that Wellington

Robinson had been appointed personal representative of the

estate. See Pl.’s Status Report, ECF No. 29. The Court granted

the motion to amend the following day. See Minute Order of

December 30, 2014. In light of the addition of a new potential

class representative, the Court denied without prejudice Mr.

Coleman’s motion for class certification and directed the filing

of a renewed motion to address “whatever effect, if any, the new

plaintiff may have on the class-certification analysis.” Id.

  The plaintiffs filed their motion for class certification on

January 9, 2015. See Pls.’ Mem. in Supp. of Mot. to Certify

Class (“Mem.”), ECF No. 31-1. In that motion, they seek to

certify two classes. See id. at 4. The first, “the damages

class,” is defined as:

     All persons who owned residential property on which the
     District of Columbia assessed a lien for an unpaid
     property tax deficiency, and where following the sale of
     a tax deed, such property was foreclosed upon and title
     transferred pursuant to D.C. Code §§ 47-1330 to 47-1385
     and where such property included equity above the amount
     of real estate taxes, interest, penalties, expenses and
     attorney’s fees at the time a tax deed was issued.

Id. The second class, “the declaratory relief class,” is defined

slightly differently:



                                7
      All persons who own or owned residential property on
      which the District of Columbia has assessed a lien for
      an unpaid property tax deficiency, and for which lien
      the District subsequently sold the right to foreclose
      the right of redemption for the property pursuant to
      D.C. Code §§ 47-1330 to 47-1385 and where such property
      included equity above the amount of real estate taxes,
      interest, penalties, expenses and attorney’s fees at the
      time a tax deed was issued.

Id. The District opposes the motion for class certification,

Def.’s Opp. to Mot. to Certify Class (“Opp.”), ECF No. 33, and

the plaintiffs have filed a reply brief. See Pls.’ Reply in

Supp. of Mot. to Certify Class (“Reply”), ECF No. 34. At the

Court’s request, the parties filed supplemental briefs on March

18, 2015 answering a question not addressed in either parties’

pleadings. See Pls.’ Suppl. Br., ECF No. 35; Def.’s Suppl. Br.,

ECF No. 36; Part III.B.1, infra. The Court held oral argument on

the motion on March 25, 2015, and the motion is now ripe for

resolution.

II.   Standing

  “Any analysis of class certification must begin with the issue

of standing.” Prado-Steinman ex rel. Prado v. Bush, 221 F.3d

1266, 1280 (11th Cir. 2000) (quotation marks and alteration

omitted); see also In re Lorazepam & Clorazepate Antitrust

Litig., 289 F.3d 98, 108 (D.C. Cir. 2002) (“The question of

constitutional standing . . . is a prerequisite to Rule 23 class

certification because it goes to the court’s jurisdiction.”).

“To satisfy Article III’s standing requirement, ‘a plaintiff


                                 8
ordinarily must establish that (1) he or she has suffered an

injury-in-fact; (2) there is a causal connection between the

injury and the conduct complained of; and (3) the injury will

likely be redressed by a favorable decision.’” Assoc. Builders &

Contractors, Inc. v. Shiu, 30 F. Supp. 3d 25, 34 (D.D.C. 2014)

(quoting In re Polar Bear Endangered Species Act Listing, 627 F.

Supp. 2d 16, 24 (D.D.C. 2009)).

    Plaintiffs also “bear[] the burden of showing that [they have]

standing for each type of relief sought.” Summers v. Earth

Island Inst., 555 U.S. 488, 493 (2009). When a party seeks a

declaratory judgment, this requires that the case be one “of

actual controversy within [the Court’s] jurisdiction.” 28 U.S.C.

§ 2201(a). “‘To establish that a matter is a controversy rather

than an abstract question, a party seeking declaratory relief

must show that there is a substantial controversy, between

parties having adverse legal interests, of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment.’”

Covington v. JPMorgan Chase, No. 9-30, 2014 WL 3734265, at *7

(D.D.C. July 30, 2014) (quoting Hoffman v. District of Columbia,

643 F. Supp. 2d 132, 140 (D.D.C. 2009)).

    Plaintiffs have asserted, and the District does not dispute,

that the Damages Class has standing. See Mem. at 5.1 The District


1 Individuals whose property was foreclosed upon and title
transferred pursuant to the District’s tax-sale statute have


                                  9
argued in its opposition brief that the Declaratory Relief Class

lacks standing because it contains members whose claims would be

rendered moot by the enactment of amendments to the District’s

tax-sale law. See Opp. at 25–27. Those amendments went into

effect soon after the parties finished briefing the motion for

class certification. During the March 25, 2015 hearing, the

plaintiffs conceded that the Court should consider defining the

Declaratory Relief Class in a manner that would render it

identical to the Damages Class. The District agreed that this

would absolve any standing issue. Accordingly, the Court will

consider whether to certify the Declaratory Relief Class,

defined as:

     All persons who owned residential property on which the
     District of Columbia assessed a lien for an unpaid
     property tax deficiency, and where following the sale of
     a tax deed, such property was foreclosed upon and title
     transferred pursuant to D.C. Code §§ 47-1330 to 47-1385
     and where such property included equity above the amount
     of real estate taxes, interest, penalties, expenses and
     attorney’s fees at the time a tax deed was issued.

Mem. at 4. This class may seek a retrospective declaratory

judgment because its claims are “intertwined with a claim for

monetary damages that requires [the Court] to declare whether a




suffered an injury insofar as they had equity above the amount
of taxes, interest, and related costs and penalties owed. See
Coleman, 2014 WL 4819092, at *17 (if a separate property
interest in equity exists, the effect of the law would appear to
be that “[p]roperty to which an individual is legally entitled
has been taken without recourse”).


                               10
past constitutional violation occurred.” Lippoldt v. Cole, 468

F.3d 1204, 1217 (10th Cir. 2006) (quotation marks omitted).

III. Class Certification

  “The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432

(2013) (quotation marks omitted). Certification of a class

action is governed by Rule 23 of the Federal Rules of Civil

Procedure, and a plaintiff “must affirmatively demonstrate his

compliance with” Rule 23. Wal-Mart Stores, Inc. v. Dukes, 131 S.

Ct. 2541, 2551 (2011). “This is done not by pleading compliance,

but by ‘demonstrating compliance in fact.’” Artis v. Yellen, No.

1-400, 2014 WL 4801783, at *8 (D.D.C. Sept. 29, 2014) (quoting

Wal-Mart, 131 S. Ct. at 2551) (alterations omitted). The process

of assessing a plaintiff’s compliance with Rule 23 is often

“enmeshed in the factual and legal issues comprising the

plaintiff’s cause of action” so the Court may inquire into the

merits of the plaintiffs’ claims, Wal-Mart, 131 S. Ct. at 2551–

52, but only to the extent necessary “‘to determin[e] whether

the Rule 23 prerequisites for class certification are

satisfied.’” D.L. v. District of Columbia, 713 F.3d 120, 126

(D.C. Cir. 2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust

Funds, 133 S. Ct. 1184, 1194–95 (2013)).

  A.   Existence of a Class


                               11
  “Although not specifically mentioned in the rule, an essential

prerequisite of an action under Rule 23 is that there must be a

‘class.’” Wright & Miller, Federal Practice & Procedure § 1760A

(3d ed. 2014); see also Simer v. Rios, 661 F.2d 655, 669 (7th

Cir. 1981) (“it is axiomatic that for a class action to be

certified a ‘class’ must exist”). Asking a plaintiff to

demonstrate the existence of a class is a “common-sense

requirement,” Bynum v. District of Columbia, 214 F.R.D. 27, 31

(D.D.C. 2003), which clarifies whether “it is administratively

feasible . . . to determine whether a particular individual is a

member [of the class].” Wright & Miller, Federal Practice &

Procedure § 1760A (3d ed. 2014). “Accordingly, a class may be

certified only when ‘an individual would be able to determine,

simply by reading the [class] definition, whether he or she [is]

a member of the proposed class.’” Artis, 2014 WL 4801783, at *8

(quoting Bynum, 214 F.R.D. at 32).

  Although the District does not dispute this issue, the Court

notes briefly that the classes as defined are readily

ascertainable. To determine whether an individual is a member,

she need only answer four objective questions: (1) whether the

District “assessed a lien for an unpaid property tax deficiency”

on her D.C. residential property; (2) whether the District

subsequently sold a tax deed on that property; (3) whether the

purchaser of that property foreclosed on and obtained title to


                               12
the property pursuant to the old tax-sale law; and (4) whether

she had equity in the property that exceeded the taxes,

interest, and related costs owed.

  B.        Rule 23(a)

  With one exception, the District concedes that the plaintiffs

satisfy Rule 23(a), which requires that:

       (1) the class is so numerous that joinder of all members
       is impracticable; (2) there are questions of law or fact
       common to the class; (3) the claims or defenses of the
       representative parties are typical of the claims or
       defenses of the class; and (4) the representative
       parties will fairly and adequately protect the interests
       of the class.

Fed. R. Civ. P. 23(a). “These requirements are known

respectively as ‘numerosity, commonality, typicality, and

adequate representation.’” Artis, 2014 WL 4801783, at *9

(quoting Wal-Mart, 131 S. Ct. at 2550). The District has not

opposed the plaintiffs’ contention that they satisfy the

commonality, typicality, and adequate representation

requirements.

       1.     Numerosity

  Because of the general rule in favor of confining litigation

to the named parties only, a class action is appropriate only

when “the class is so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). Although commonly

called the “numerosity” requirement, “the Rule’s core

requirement is that joinder be impracticable” and numerosity


                                 13
merely “provides an obvious situation in which joinder may be

impracticable.” Newberg on Class Actions § 3:11 (5th ed. 2014).

“Impracticability of joinder means only that it is difficult or

inconvenient to join all class members, not that it is

impossible to do so.” Bond v. Fleet Bank, No. 1-177, 2002 WL

31500393, at *4 (D.R.I. Oct. 10, 2002); see also Robidoux v.

Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Impracticable does

not mean impossible.”). Nor does the requirement provide hard

rules for when joinder will be found to be impracticable;

rather, it “requires examination of the specific facts of each

case and imposes no absolute limitations.” Gen. Tel. Co. v.

EEOC, 446 U.S. 318, 330 (1980); see also Taylor v. D.C. Water &

Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (there is no

“specific threshold that must be surpassed”).

    Despite this flexible standard, courts have developed helpful

rules of thumb for assessing the approximate thresholds at which

joinder becomes presumptively impracticable. Absent unique

circumstances, “numerosity is satisfied when a proposed class

has at least forty members.” Richardson v. L’Oreal USA, Inc.,

991 F. Supp. 2d 181, 196 (D.D.C. 2013); see also Alvarez v.

Keystone Plus Construction Corp., 303 F.R.D. 152, 160 (D.D.C.

2014).2 At the lower-end, “a class that encompasses fewer than 20


2 Arguably, “as few as 25-30 class members should raise a
presumption that joinder would be impracticable.” EEOC v.


                                 14
members will likely not be certified absent other indications of

impracticability of joinder.” Newberg on Class Actions § 3:11

(5th ed. 2014). In assessing the number of potential class

members, the Court need only find an approximation of the size

of the class, not “an exact number of putative class members.”

Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998).

Consistent with the Supreme Court’s admonition that a plaintiff

must prove compliance with Rule 23 “in fact,” Wal-Mart, 131 S.

Ct. at 2551, a plaintiff must provide some evidentiary basis

beyond a bare allegation of the existence of numerous class

members. The Court may, however, “draw reasonable inferences

from the facts presented to find the requisite numerosity.”

McCuin v. Sec’y of Health & Hum. Servs., 817 F.2d 161, 167 (1st

Cir. 1987); see also, e.g., Houser v. Pritzker, 28 F. Supp. 3d

222, 241 (S.D.N.Y. 2014) (a plaintiff seeking to establish

numerosity “may rely on reasonable inferences from available

facts”).

       a.   The Class Consists of Approximately Thirty-Four
            Potential Members

  Plaintiffs asserted in their motion for class certification

that over forty class members exist, relying upon “[p]ublic real

estate records . . . to identify individual homeowners who have




Printing Indus. of Metropolitan Washington, 92 F.R.D. 51, 53
(D.D.C. 1981).


                               15
lost their homes in tax lien foreclosures.” Mem. at 8.3 The

District concedes that seven individuals are potential class

members, Opp. at 6, 9, 11, 14, 16, but argues that all other

individuals identified by the plaintiffs are not potential class

members for various reasons. The plaintiffs opposed most, but

not all, of these arguments, listing in their reply brief

thirty-four potential class members (not including the two named

plaintiffs). See Reply at 5.

    Upon review of these arguments, the Court noted that the

District’s arguments seeking to remove individuals from the

class “[a]rguably . . . ‘put the cart before the horse,’ by

seeking an adjudication on the merits of the claims of potential

class members in an attempt to exclude them from the numerosity

analysis.” Minute Order of March 12, 2015 (quoting Amgen, 133 S.

Ct. at 1191). The Court accordingly directed the parties to file

supplemental briefs addressing “whether some or all of the

District’s arguments regarding numerosity improperly seek a

merits determination regarding the claims of potential

plaintiffs and, if so, how that impacts the numerosity issue.”

Id.




3 The plaintiffs limited their numbers to those who “lost their
real property . . . during the three years prior to the filing
of the lawsuit,” but noted that “[m]any more lost their
properties prior to that period.” Id.


                                 16
  In their supplemental brief, the plaintiffs assert that the

District’s numerosity arguments seek improper inquiries into the

merits of potential class members’ claims, rather than solely

into whether they meet the criteria for membership in the class.

See Pls.’ Suppl. Br., ECF No. 35. The District disagrees. In so

doing, it correctly recites the law regarding the consideration

of merits issues: The Court must consider merits questions when

those questions overlap with Rule 23’s requirements. Def.’s

Suppl. Br., ECF No. 36 at 2; see Ellis v. Costco Wholesale

Corp., 657 F.3d 970, 981 (9th Cir. 2011). The District appears

not to dispute the corollary that the Court may not consider

merits questions that do not overlap with Rule 23’s

requirements. See D.L., 713 F.3d at 126. The District also

rightly notes that the Court must resolve any factual disputes

regarding the existence of a sufficiently numerous class. Def.’s

Suppl. Br., ECF No. 36 at 3; see Wal-Mart, 131 S. Ct. at 2551 (a

plaintiff seeking class certification “must affirmatively

demonstrate his compliance with” Rule 23, by demonstrating

compliance “in fact”). The problem, however, is that some of the

District’s numerosity arguments do not raise factual disputes

about the number of potential class members; rather, they raise

merits-related defenses to their claims.

  These arguments thereby stray from the purpose of the

numerosity analysis. Rule 23(a)(1) directs the Court to


                               17
determine whether the plaintiff has put forth evidence to

support the existence of a sufficiently numerous class. The

concern of Rule 23(a)(1), therefore, is membership in the class,

not likelihood of success on the merits. See McLaughlin on Class

Actions § 4:5 (11th ed. 2014) (the determination under Rule

23(a)(1) “does not entail an assessment of how many putative

class members ultimately will have meritorious claims”). The

District would have the Court remove from the calculation of the

class’s numbers various individuals whose claims the District

contends will ultimately fail on the merits, not because those

individuals do not meet the class definition, but because those

individuals allegedly consented to the taking of their equity,

abandoned their property interests, or have claims that are

barred by res judicata. See Opp. at 4–22. Plaintiffs oppose

these contentions on their merits, but the Court finds that

these disputes “put the cart before the horse,” Amgen, 133 S.

Ct. at 1191, by asking how many successful class members exist,

rather than how many potential class members exist.

  The Supreme Court recently addressed a similar problem in

Amgen, where the Court found that a defendant opposing

certification of a Rule 23(b)(3) class inappropriately sought to

litigate a merits issue—the materiality of the defendant’s

alleged misrepresentation—under the guise of establishing that

individual issues would overwhelm common ones for purposes of


                               18
Rule 23(b)(3)’s predominance requirement. See id. at 1195. The

Supreme Court rejected this leap to a merits determination—

whether the misrepresentation was material—that did not bear on

the Rule 23 issue—whether the plaintiffs could attempt to prove

materiality on a class-wide basis. See id.

  The District seeks to import an equally incongruous merits

inquiry into Rule 23(a)(1), similar to one the Seventh Circuit

recently rejected. In Parko v. Shell Oil Co., 739 F.3d 1083 (7th

Cir. 2014), a putative class of property owners alleged that an

oil refinery had “leaked benzene and other contaminants into the

groundwater under the class members’ homes.” Id. at 1084. The

defendant contended “that a number of the class members were not

injured—either their groundwater was not contaminated by leakage

from the refinery or the contamination did not affect the value

of their property.” Id. This, the defendant claimed, deprived

those class members of standing, meaning that too few class

members remained to support a finding of numerosity. See id. The

Seventh Circuit held that requiring the adjudication of whether

each potential class member suffered an injury “would make the

class certification process unworkable; the process would

require, in this case, 150 trials before the class could be

certified.” Id. at 1085. Accordingly, “[h]ow many (if any) of

the class members have a valid claim is the issue to be

determined after the class is certified.” Id. (emphasis in


                               19
original). Or, as the Court in Amgen put it, the point of Rule

23 “is not to adjudicate the case; rather, it is to select the

method best suited to adjudication of the controversy fairly and

efficiently.” 133 S. Ct. at 1191 (quotation marks and

alterations omitted). Other courts have recently come to similar

conclusions regarding merits arguments cloaked in numerosity

garb. See, e.g., Lindh v. Warden, No. 2:14-cv-00142, 2014 WL

7334745, at *3 (S.D. Ind. Dec. 19, 2014); Langendorf v.

Skinnygirl Cocktails, LLC, No. 11-cv-7060, 2014 WL 5487670, at

*2 (N.D. Ill. Oct. 30, 2014); Saravia v. 2799 Broadway Grocery

LLC, No. 12-cv-7310, 2014 WL 2011720, at *3 (S.D.N.Y. May 16,

2014).

  The District’s arguments that certain class members have given

up their Takings Clause claim by consenting to judgment in a

Superior Court foreclosure action or abandoning their property

such that they may not bring a Takings Clause claim, and that

res judicata bars the claims of another are precisely the types

of merits arguments that ultimately have no bearing on

numerosity. Membership in the classes is not contingent upon any

of these factors. They do not bear, for example, on whether

individuals proffered as potential class members ever owned

property in D.C., had a tax-lien sold pursuant to the relevant

provision of the D.C. Code, or had their title taken in full.

Rather, those arguments seek to show that the individuals’


                               20
claims will ultimately fail for lack of injury—whether due to

consent to that injury, loss of the property interest that was

allegedly injured, or failure to vindicate that injury in a

prior proceeding in which it was required to be raised.4 But

“[h]ow many (if any) of the class members have a valid claim is

the issue to be determined after the class is certified.” Parko,

739 F.3d at 1085; see also Arnold Chapman & Paldo Sign & Display

Co. v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014)

(noting that those who ultimately do not have a valid claim




4 During oral argument, the District maintained that its
arguments regarding abandonment and consent bear on whether a
class member’s property “included equity above the amount of
real estate taxes, interest, penalties, expenses and attorney’s
fees at the time a tax deed was issued” as required by the class
definition. See Mem. at 4. The argument is essentially that the
alleged consent or abandonment destroyed any equity interest the
individual may have had. This argument would appear to permit a
court to address any defense—including the lack-of-standing
defense rejected by the Seventh Circuit in Parko—on the theory
that a successful defense would show that the class member
suffered no injury. This would far exceed the case law cited by
the District permitting courts to consider statute of
limitations defenses or similar time-bar rules in assessing
numerosity. See Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv.
Bd., 40 F.3d 698, 716 (5th Cir. 1994); Wetzel v. Liberty Mut.
Ins. Co., 508 F.2d 239, 246–48 (3d Cir. 1975); Lanning v. S.E.
Pa. Transp. Auth., 176 F.R.D. 132, 148 (E.D. Pa. 1997). As the
plaintiffs noted at oral argument, such defenses may bear
directly on membership in the class and do not involve the types
of individualized and potentially fact-intensive decisions that
the District’s abandonment and consent arguments might raise,
and that the standing argument raised in Parko. Even if, as the
District suggested, these inquiries would not be nearly as in-
depth as in Parko, they are nonetheless fact-based inquiries
into the merits of a claim, not fact-based inquiries into the
basis for class membership.

                               21
“just wouldn’t be entitled to share in the damages awarded to

the class by a judgment or settlement”). While the District’s

arguments may, if successful, bar certain class members from

obtaining relief, that does not remove those individuals from

consideration as potential members of the putative class.5

    The District’s citation to Szabo v. Bridgeport Machines, Inc.,

249 F.3d 672 (7th Cir. 2001) is not to the contrary. In Szabo,

the Seventh Circuit rejected a district court’s decision

granting class certification where “the judge assumed that

whatever [the plaintiff] alleges must be true.” Id. at 674. This

approach was improper, the Seventh Circuit held, offering the

following as an example:

      Before deciding whether to allow a case to proceed as a
      class action, therefore, a judge should make whatever
      factual and legal inquiries are necessary under Rule 23.
      This would be plain enough if, for example, the plaintiff
      alleged that the class had 10,000 members, making it too
      numerous to allow joinder, while the defendant insisted
      that the class contained only 10 members. A judge would
      not and could not accept the plaintiff’s assertion as
      conclusive; instead the judge would receive evidence .
      . . and resolve the disputes before deciding whether to
      certify the class.

Id. at 676. Szabo stands for the uncontroversial proposition

that the Court must consider merits issues and resolve fact




5 The existence of such defenses could theoretically affect the
analysis under other parts of Rule 23, but the District did not
raise these arguments and indeed sought to downplay the extent
to which these defenses would require in-depth individualized
proof.


                                 22
disputes where relevant to Rule 23 (i.e. to determine how many

individuals exist that meet the class definition). See

Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010)

(“Although we concluded in Szabo . . . that a court may take a

peek at the merits before certifying a class, Szabo insisted

that this peek be limited to those aspects of the merits that

affect the decisions essential under Rule 23”).

    The sole argument raised by the District that bears on any

individual’s membership in the classes is that some potential

class members did not have equity in their property in excess of

the amount of taxes, interest, and additional fees owed. See

Opp. at 4–22.6 The claim that certain potential class members did

not have excess equity, if true, would exclude those class




6 The District raised briefly the claim that certain putative
class members own unimproved lots of land rather than
residential property. See Def.’s Suppl. Br., ECF No. 36 at 4
n.3. During oral argument, the plaintiffs argued that the lots
at issue are themselves residential. Plaintiffs confirmed this
in a post-hearing filing, which demonstrates that all lots at
issue are zoned residential. See Pls.’ Post-Hearing Br., ECF No.
37. The Court therefore considers the owners of these lots to be
“residential property owners” as relevant to the class
definition.

The District also argued that one potential class member,
Elizabeth Neal, is “not entitled to any equity [her] property
may have had” by virtue of her estate’s debt to the D.C.
Department of Health. Opp. at 18–19. This debt, however, would
not deprive Ms. Neal’s estate of the ability to recover; to the
extent she prevails and obtains damages, she may “recover the
surplus equity and deal separately with the Department of Health
to resolve that obligation.” Reply at 10.


                                 23
members from the class definition. Plaintiffs respond that the

figures the District uses to assess the market value of those

individuals’ properties—and thereby to obtain the amount of

equity—are improper measures and that a more appropriate

appraisal demonstrates that the equity was much higher. See

Reply at 7–10. Plaintiffs, moreover, have proffered appraisals

that show just that. See Ex. A to Pls.’ Mot., ECF No. 31-2. The

Court finds that resolving any dispute over which appraisal

method to use is unnecessary at this stage. Doing so would

arguably seek a merits determination akin to that rejected by

the Seventh Circuit in Parko. See 739 F.3d at 1085. The Court’s

role at this stage, moreover, is not to decide which of

competing appraisal methods is appropriate; rather, the Court

asks whether the plaintiffs have provided an evidentiary basis

for the approximate number of potential class members whose

existence they allege. See Pigford, 182 F.R.D. at 347. The

plaintiffs’ proffer of a valuation method that renders at least

34 putative class members in a position with excess equity is

sufficient at this stage to justify the proposed numerosity

finding. Finally, only 4 of the 34 putative class members are

subject to the District’s argument regarding excess equity. See

Opp. at 7, 11, 13, 16–17, 19 (listing seven of plaintiffs’

original forty class members as not having excess equity); Reply

at 8–10 (counting only four of those seven to arrive at the


                               24
thirty-four member figure). Even if those 4 were removed and the

Court were considering a class of 30 members, the Court would

find that joinder was similarly impracticable for the reasons

stated in Part III.B.1.b., infra.

       b.   The Class’s Unique Vulnerability Makes Joinder
            Significantly More Difficult.

  With roughly 34 potential members, plaintiffs’ proposed

classes are close to the range where joinder is presumed to be

impracticable. To the extent that 40 members has become a

precise cutoff, plaintiffs would find themselves at the high end

of numerosity’s gray area—where joinder is neither presumptively

impracticable nor presumptively practical. Additional factors

demonstrate strongly that joinder is impracticable.

  The additional factors that courts consider in assessing the

practicability of joinder include: (1) “judicial economy arising

from avoidance of a multiplicity of actions”; (2) “geographic

dispersion of class members”; (3) “size of individual claims”;

(4) “financial resources of class members”; and (5) “the ability

of claimants to institute individual suits.” Newberg on Class

Actions § 3:12 (5th ed. 2014). Where the balance of these

factors “is a close call, some courts err in favor of

certification because a court always has the option to decertify

the class if it is later found that the class does not in fact

meet the numerosity requirement.” Id.; see also J.D. v. Nagin,



                               25
255 F.R.D. 406, 414 (E.D. La. 2009) (noting, in assessing

whether joinder was impracticable for a class of juveniles

incarcerated in a state facility who challenged the conditions

of their detention, that “Rule 23(a) must be read liberally in

the context of civil rights suits”).

  The factors that favor the District are the likelihood that

the class is geographically concentrated in Washington, D.C.,

and the related ease of identifying class members by reference

to the District’s records. To be sure, courts have held that

small classes may be able to rely on joinder where class members

are geographically concentrated and their identity is readily

obtained from the defendant’s records. See, e.g., Gilchrist v.

Bolger, 89 F.R.D. 402, 410 (S.D. Ga. 1981) (class of 21 to 24

members). But these factors do not mandate a finding that

joinder is practical, especially when the potential class is

larger and other factors weigh strongly against such a finding.

Nor is this class similar to the class of twenty-eight at issue

when the D.C. Circuit affirmed the denial of class certification

in Frazier v. Consol. Rail Corp., 851 F.2d 1447 (D.C. Cir.

1988). Although Frazier discussed geographic concentration and

the ease of identifying class members as factors counseling

against finding that joinder would be impracticable, the D.C.

Circuit emphasized that certification of classes below forty

members “is best left to the sound discretion of the district


                               26
court” and requires “an examination by the district court of the

facts of each case.” Id. at 1456 & n.10. The facts of this case

render this class of approximately thirty-four much more

difficult to join.

  First, the vulnerability of many members of the class renders

their claims uniquely unsuited for individual prosecution. Rule

23, in permitting the aggregation of claims, embodies a

“principle of protection for weaker plaintiffs.” Primavera

Familienstiftung v. Askin, 178 F.R.D. 405, 411 (S.D.N.Y. 1998).

In keeping with this principle, courts recognize that joinder is

significantly more difficult when class members “are . . .

economically disadvantaged, making individual suits difficult to

pursue.” Robidoux, 987 F.2d at 936. In such situations, a

putative class action may present “an example of the ‘economic

reality that petitioner’s suit must proceed as a class action or

not at all.’” D.L. v. District of Columbia, 302 F.R.D. 1, 11

(D.D.C. 2013) (quoting Eisen v. Carlisle & Jacquelin, 317 U.S.

156, 161 (1974)) (alterations omitted); see also McDonald v.

Heckler, 612 F. Supp. 293, 300 (D. Mass. 1985) (“These

individuals claim to be disabled and of low income. It is

therefore impracticable for these persons to bring individual

lawsuits challenging the Secretary’s policies.”); cf. Primavera,

178 F.R.D. at 411 (finding that joinder was practical in class

of “38 to 40 potential plaintiffs” in part because the class


                               27
members were all “sophisticated investors, with sufficient

financial resources to protect their own interest,” the majority

of whom had “invested well over $1 million”). Similar concerns

arise when other characteristics render class members

vulnerable. See, e.g., D.L., 302 F.R.D. at 11 (class action

under the Individuals with Disabilities in Education Act, which

“ensures a free and appropriate education to the District’s

youngest and most vulnerable pupils”); Sherman v. Griepentrog,

775 F. Supp. 1383, 1389 (D. Nev. 1991) (relying in part on the

fact that class members were largely “poor and elderly or

disabled individuals”); Rodriguez ex rel. Rodriguez v.

Berrybrook Farms, Inc., 672 F. Supp. 1009, 1014 (W.D. Mich.

1987) (considering the “lack of formal education, English

language skills, and knowledge of the legal system” of potential

class members).

  The members of the proposed classes in this case are, by

definition, uniquely vulnerable. To be a class member, an

individual must have failed to pay property taxes and failed to

redeem her property during foreclosure proceedings in the

Superior Court of the District of Columbia. As Mr. Coleman’s and

Ms. Robinson’s stories demonstrate, some individuals may have

found themselves in this situation due to unique

vulnerabilities. Mr. Coleman ended up as a class member because

he “forgot to pay a $134 real property tax bill,” was “at the


                               28
time of foreclosure[,] suffer[ing] from dementia,” and “was

incapable of protecting his rights or managing his financial and

legal affairs.” First Am. Compl., ECF No. 30 ¶¶ 10–11.

Similarly, “Ms. Robinson was living in a senior care facility

when the tax lien was assessed against her home and later died

shortly before” foreclosure proceedings began. See id. ¶ 10. The

failure of other class members to pay their property taxes or

engage in proceedings in Superior Court similarly indicates a

financial vulnerability to the extent that class members were

financially unable to meet their property-tax obligations or to

pay the interest, penalties, and fines that were added on top of

the tax obligation. It may also reflect difficulty in managing

the class member’s own affairs. Each of these vulnerabilities is

a factor counseling in favor of finding that joinder is

impracticable.

  Nor is the Court barred from inferring that class members are

likely vulnerable. Although the Court may not merely adopt as

true a class representatives’ factual allegations, Wal-Mart, 131

S. Ct. at 2551, courts discussing a class’s vulnerability

regularly make inferences that flow logically from the class

definition. See, e.g., McDonald, 612 F. Supp. at 300 (in class

action challenging Social Security Administration policies “used

to deny disability benefits to claimants on the grounds that

their impairments are not severe,” the Court inferred from the


                               29
class definition of those whose benefits claims were denied “on

the grounds that they do not have a severe impairment,” that

“[t]hese individuals claim to be disabled and of low income” and

concluded that “[i]t is therefore impracticable for these

persons to bring individual lawsuits”); D.L., 302 F.R.D. at 11

(in class seeking certification of claims under the Individuals

with Disabilities in Education Act, the Court noted “[t]he IDEA

ensures a free and appropriate education to the district’s

youngest and most vulnerable pupils, many of whom are indigent

and unable to obtain legal services . . . . This litigation is

thus an example of the economic reality that [the] suit must

proceed as a class action or not at all”) (quotation marks and

alterations omitted). It is similarly commonplace to “draw

reasonable inferences from the facts presented to find the

requisite numerosity.” McCuin, 817 F.2d at 167.

  The Court’s inferences regarding the unique vulnerability of

the class are similarly derived from the class definition, as

well as the facts proffered by the plaintiffs supporting the

existence and status of each of the thirty-four potential class

members. See Exs. A–C to Pls.’ Mot., ECF Nos. 31-2, 31-3, 31-4.

Both the class definition and these specific facts regarding the

class members demonstrate that class members, by definition and

in fact, failed to pay property taxes, had equity that exceeded

the amount they owed, and failed to redeem their property in


                               30
Superior Court or otherwise reach an arrangement under which

they could extract the excess equity that they owned. It is

reasonable to infer that one with the financial ability to pay

the taxes or fees would pay them (after all, the equity to be

saved exceeds the taxes and fees to be paid), unless the excess

equity was minimal. Even one without the financial ability to

pay in cash could, for example, borrow against that equity to

obtain the amount of cash needed to pay the taxes and costs. An

individual who is a potential class member, by definition, did

not do these things to defend her interest. It is therefore

reasonable to infer that some class members, if not many, lack

the financial resources to prosecute their claims individually,

the ability to manage their legal affairs, or both.

  Not only is joinder impracticable due to these unique

vulnerabilities, but joinder would also serve judicial economy

by permitting the adjudication of the class’s claims in one

case. Where a putative class seeks damages that “flow from the

resolution of a single question,” considerations of judicial

economy may strongly favor addressing the question at once.

Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56-57 (N.D. Ill. 1996)

(class of eighteen potential members); see also, e.g., Odom v.

Hazen Transport, Inc., 275 F.R.D. 400, 407 (W.D.N.Y. 2011)

(class of sixteen individuals). The claims in this case are




                               31
largely identical, making it economical to resolve them at once.

See Part III.C.2.a, infra.

     2.     Commonality

  Next, plaintiffs must establish that “there are questions of

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

Commonality is not satisfied solely because all plaintiffs

suffered “a violation of the same provision of law.” Wal-Mart,

131 S. Ct. at 2551. The touchstone of the commonality inquiry is

“the capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation.” Id.

(quotation marks omitted; emphasis in original). Depending upon

the circumstances, this may involve many common issues that

together provide a resolution, but “even a single common

question will do.” Id. at 2556 (quotation marks and alterations

omitted).

  A class may satisfy the commonality requirement even if

factual distinctions exist among the claims of putative class

members. The question is “whether dissimilarities between the

claims may impede a common resolution.” Wright & Miller, Federal

Practice & Procedure § 1763 (3d ed. 2014). This is less likely

to occur where, as here, the class challenges a generally

applicable policy or practice. See, e.g., Wal-Mart, 131 S. Ct.

at 2553–54 (noting that a plaintiff could maintain a Title VII

class action by challenging a “biased testing procedure”);


                               32
Thorpe v. District of Columbia, 303 F.R.D. 120, 145 (D.D.C.

2014) (“Where plaintiffs allege widespread wrongdoing by a

defendant, a uniform policy or practice that affects all class

members bridges the gap”) (quotation marks and alterations

omitted). Ultimately, “[w]hen the party opposing the class has

engaged in some course of conduct that affects a group of

persons and gives rise to a cause of action, one or more of the

elements of that cause of action will be common to all of the

persons affected.” Newberg on Class Actions § 3:20 (5th ed.

2014).

  Plaintiffs argue that their claims are susceptible to class

treatment because the entire class brings the same legal claim

regarding the same D.C. Code provision. See Mem. at 13–15.

Plaintiffs’ legal claims against that provision, moreover, boil

down to a series of common legal questions, as this Court noted

in its Opinion denying the District’s motion to dismiss:

     This Court draws two clear principles from the Supreme
     Court’s decisions in Lawton and Nelson. Nelson makes
     clear that a Takings Clause violation regarding the
     retention of equity will not arise when a tax-sale
     statute provides an avenue for recovery of the surplus
     equity. Lawton makes clear that a Takings Clause
     violation will arise when a tax-sale statute grants a
     former owner an independent property interest in the
     surplus equity and the government fails to return that
     surplus. The question Mr. Coleman’s case presents is:
     What if the tax-sale statute does not provide a right to
     the surplus and the statute provides no avenue for
     recovery of any surplus? A property interest in equity
     could conceivably be created by some other legal source.
     In that circumstance, failure to provide an avenue for


                               33
     recovery of the equity would appear to produce a result
     identical to Lawton: Property to which an individual is
     legally entitled has been taken without recourse. The
     issue, then, is whether Mr. Coleman has a property
     interest in his equity and, if so, whether an
     unconstitutional taking of that property has been
     alleged.

Coleman, 2014 WL 4819092, at *17.

  Plaintiffs therefore raise common legal questions regarding

whether D.C. law creates a property interest in equity; whether

the District’s tax-sale statutes effect a “taking” of that

property; whether any such taking was done without public

purpose; and whether the plaintiffs were granted just

compensation for any such taking. See Mem. at 14. These legal

questions, moreover, are susceptible to class-wide answers

because their resolution does not depend upon the particular

circumstances of any individual’s loss: “All putative plaintiffs

are advancing the same legal theory based on the same set of

facts and the same course of conduct by the District.” Hardy v.

District of Columbia, 283 F.R.D. 20, 24 (D.D.C. 2012). For this

reason, the classes raise common questions, the answers to which

will significantly drive the resolution of this case.

     3.   Typicality

  Plaintiffs must also demonstrate that “the claims or defenses

of the representative parties are typical of the claims or

defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality

requirement is concerned with whether “the named plaintiffs are


                               34
appropriate representatives of the class whose claims they wish

to litigate.” Wal-Mart, 131 S. Ct. at 2550. A class

representative satisfies the typicality requirement if the

representative’s “claims are based on the same legal theory as

the claims of the other class members” and her “injuries arise

from the same course of conduct that gives rise to the other

class members’ claims.” Bynum, 214 F.R.D. at 35. “Put another

way, a representative’s claims are typical of those of the class

when ‘[t]he plaintiffs allege that their injuries derive from a

unitary course of conduct by a single system.’” Artis, 2014 WL

4801783, at *12 (quoting Marisol A. v. Giuliani, 126 F.3d 372,

377 (2d Cir. 1997)).

  As discussed above, the plaintiffs’ claims all arise from a

common statutory background and raise identical legal questions.

See supra Part III.B.2. Accordingly, “the interests of the named

plaintiffs and the proposed class members are aligned because

all plaintiffs would assert the same legal claim, a taking in

contravention of the Fifth Amendment, arising out of the same

government actions.” Geneva Rock Prods., Inc. v. United States,

100 Fed. Cl. 778, 790 (2011) (quotation marks omitted).

  Although class members may ultimately be entitled to differing

amounts of damages, this variance is not fatal to typicality,

which “may be satisfied even though . . . there is a disparity

in the damages claimed by the representative parties and the


                               35
other class members.” Wright & Miller, Federal Practice &

Procedure § 1764 (3d ed. 2014); see also Newberg on Class

Actions § 3:43 (5th ed. 2014) (“Courts routinely find that the

proposed class representative’s claims are typical even if the

amount of damages sought differ from those of the class or if

there are differences among class members in the amount of

damages each is claiming”). “Rule 23 contains no suggestion that

the necessity for individual damage determinations destroys . .

. typicality.” Gunnells v. Healthplan Servs., 348 F.3d 417, 427–

28 (4th Cir. 2003). Accordingly, courts certify classes whose

damages claims, for example “may be determined by examining the

same electronic databases.” Ramos v. SimplexGrinnell LP, 796 F.

Supp. 2d 346, 357 (E.D.N.Y. 2011), vacated in part on other

grounds, 773 F.3d 394 (2d Cir. 2014). Damages would be similarly

discernible here. See infra Part III.C.2.a.

  Nor do there appear to be any unique defenses to the claims of

either named plaintiff that might destroy typicality. Such

defenses are found only in narrow circumstances: “The critical

question for the Court is not whether these defenses are legally

viable, but rather, assuming they are supportable, whether they

would ‘skew the focus of the litigation and create a danger that

absent class members will suffer because their representative is

preoccupied with defenses unique to it.’” Thorpe, 303 F.R.D. at

149-50 (quoting Meijer, Inc. v. Warner Chilcott Holdings Co.


                               36
III, 246 F.R.D. 293, 302 (D.D.C. 2007)) (alteration omitted).

Although the District has alluded to a potential statute of

limitations defense to Mr. Coleman’s claims, there appears to be

no such defense to the claims of Ms. Robinson’s estate. In any

event, statute-of-limitations defenses are unlikely to skew the

focus of litigation. See, e.g., Sykes v. Mel Harris & Assocs.,

285 F.R.D. 279, 292 (S.D.N.Y. 2012) (statute-of-limitations

defense applicable to some named plaintiffs did not “threaten to

become the focus of the litigation”). Similarly, the District’s

abandonment, consent-to-judgment, and res judicata arguments—

which it raised only in connection with the numerosity factor—

are relatively small issues, and the Court has no reason to

believe that they will become the focus of litigation to the

detriment of the claims of other class members or that they

would be ignored if they are not raised against the named

plaintiffs. Accordingly, Mr. Coleman and Ms. Robinson’s Estate

have claims that are typical of those of the class they seek to

represent.

     4.      Adequate Representation

  The final requirement of Rule 23(a) is that “the

representative parties will fairly and adequately protect the

interests of the class.” This ensures that “the named

representative must not have antagonistic or conflicting

interests with the unnamed members of the class,” and “the


                                  37
representative must appear able to vigorously prosecute the

interests of the class through qualified counsel.” Twelve John

Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)

(quotation marks omitted). The proposed class representatives

are capable of “fairly and adequately protect[ing] the interests

of the class.” Fed. R. Civ. P. 23(a)(4). Plaintiffs seek

identical relief for all class members, so there are no

conflicting interests that might derail certification on this

prong. The District, moreover, does not challenge, and there is

no reason to doubt, that the proposed class representatives are

able to prosecute the interests of the class through the counsel

they have chosen, who have extensive experience with class-

action litigation. See id. at 17.

  C.        Rule 23(b)

  Having demonstrated that their proposed classes satisfy the

threshold requirements of Rule 23(a), plaintiffs must also show

that each class can be maintained as one of three types of class

actions listed in Rule 23(b). Plaintiffs seek to bring the

Declaratory Relief Class under Rule 23(b)(2), and the Damages

Class under Rule 23(b)(3).

       1.     The Declaratory Relief Class May Be Certified
              Pursuant to Rule 23(b)(2)

  A (b)(2) class may be certified where “the party opposing the

class has acted or refused to act on grounds that apply



                                   38
generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the

class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the

(b)(2) class is the indivisible nature of the injunctive or

declaratory remedy warranted—the notion that the conduct is such

that it can be enjoined or declared unlawful only as to all of

the class members or as to none of them.” Wal-Mart, 131 S. Ct.

at 2557 (quotation marks omitted).

  To determine whether the District has treated the class on

generally applicable grounds, “[t]he key is whether the party’s

actions would affect all persons similarly situated so that

those acts apply generally to the whole class.” Wright & Miller,

Federal Practice & Procedure § 1775 (3d ed. 2014). The District

has not opposed plaintiffs’ allegations that they meet this

standard. Plaintiffs challenge the District’s admitted practice—

codified in the D.C. Code—of selling the right to foreclose

entirely on a property owner’s right of redemption and thereby

to take the entirety of the property owner’s equity. This legal

provision affected all class members in the same way.

  The second requirement of Rule 23(b)(2) is that plaintiffs

seek “final injunctive relief or corresponding declaratory

relief . . . respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). The District does not dispute that the declaratory

relief sought by the class meets this criterion. Accordingly,


                               39
the Declaratory Relief Class may be certified under Rule

23(b)(2).

     2.        The Damages Class May Be Certified Pursuant to
               Rule 23(b)(3).

  A (b)(3) class may be certified where “the questions of law or

fact common to class members predominate over any questions

affecting only individual members” and “a class action is

superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These

requirements are referred to respectively as “predominance and

“superiority.” Barnes v. District of Columbia, 242 F.R.D. 113,

123 (D.D.C. 2007).

          a.     Predominance

  The predominance requirement “tests whether proposed classes

are sufficiently cohesive to warrant adjudication by

representation.” Amchem Prods. v. Windsor, 521 U.S. 591, 623

(1997). This inquiry is similar to the commonality inquiry, but

“[i]f anything . . . is even more demanding.” Comcast, 133 S.

Ct. at 1432. “[T]he predominance analysis logically entails two

distinct steps—the characterization step and the weighing step.”

Newberg on Class Actions § 4:50 (5th ed. 2014).

  First, the court must “characterize the issues in the case as

common or individual.” Id. (emphasis omitted). This

determination is “primarily based on the nature of the



                                    40
evidence.” Id. “Evidence is considered ‘common’ to the class if

the same evidence can be used to prove an element of the cause

of action for each member.” Kottaras v. Whole Foods Market,

Inc., 281 F.R.D. 16, 22 (D.D.C. 2012). By contrast, evidence is

individualized when “members of the proposed class would need to

present evidence that varies from person to person.” Id.

  Second, the Court must “compare the issues subject to common

proof against the issues subject solely to individualized proof

to assess whether the common issues predominate.” Newberg on

Class Actions § 4:50 (5th ed. 2013). This comparison is “a

qualitative rather than a quantitative concept.” Parko, 739 F.3d

at 1085. “[T]he common issues do not have to be shown to be

dispositive.” In re Vitamins Antitrust Litig., 209 F.R.D. 251,

262 (D.D.C. 2002); see also Amgen, 133 S. Ct. at 1191 (“Rule

23(b)(3) requires a showing that questions common to the class

predominate, not that those questions will be answered, on the

merits, in favor of the class.”) (emphasis in original).

  At the weighing step, the Court must keep in mind that “common

liability issues are typically far more important and contested

and the individual damage calculations often formulaic.” Newberg

on Class Actions § 4:54 (5th ed. 2014); see also In re Nexium

Antitrust Litig., 777 F.3d 9, 21 (1st Cir. 2015) (“Where common

questions predominate regarding liability, then courts generally

find the predominance requirement to be satisfied even if


                               41
individual damages issues remain.”) (quotation marks and

alteration omitted). The D.C. Circuit has agreed “that the mere

fact that damage awards will ultimately require individualized

fact determinations is insufficient by itself to preclude class

certification.” McCarthy v. Kleindienst, 741 F.2d 1406, 1415

(D.C. Cir. 1984); see also Newberg on Class Actions § 4:54 (5th

ed. 2014) (“courts in every circuit have uniformly held that the

23(b)(3) predominance requirement is satisfied despite the need

to make individualized damage determinations”).7


7 This general rule remains valid in the wake of the Supreme
Court’s decision in Comcast, which involved a “straightforward
application of class-certification principles” to hold that
predominance may not be established unless the “model purporting
to serve as evidence of damages . . . measure[s] only those
damages attributable to” the plaintiff’s theory of liability.
133 S. Ct. at 1433. Indeed, the Supreme Court had recognized
only two years earlier that “individualized monetary claims
belong in Rule 23(b)(3).” Wal-Mart, 131 S. Ct. at 2558. To read
Comcast more broadly would not only be incorrect:

     It would drive a stake through the heart of the class
     action device, in cases in which damages were sought
     rather than an injunction or a declaratory judgment, to
     require that every member of the class have identical
     damages. If the issues of liability are genuinely common
     issues, and the damages of individual class members can
     be readily determined in individual hearings, in
     settlement negotiations, or by creation of subclasses,
     the fact that damages are not identical across all class
     members should not preclude class certification.
     Otherwise defendants would be able to escape liability
     for tortious harms of enormous aggregate magnitude but
     so widely distributed as not to be remediable in
     individual suits.

Butler v. Sears, Roebuck & Co. 727 F.3d 796, 801 (7th Cir.
2013); see also, e.g., Roach v. T.L. Cannon Corp., 778 F.3d 401,

                               42
  As discussed, the plaintiffs raise common legal questions

regarding their liability claims. See supra Part III.B.2. These

common questions, which comprise nearly the entirety of the

class’s liability claim, are themselves sufficient to support a

finding that common issues predominate over individualized ones.

  The District argues only that the individualized nature of the

calculation “of each class member’s property value at the time

the tax deed was issued will require individual treatment.” Opp.

at 24-25. This, the District claims, inserts an individualized

issue not only into the calculation of the damages owed each

class member, but also to the proof whether the class member

“had equity in the property that could qualify as an alleged

taking.” Id. at 25. Although the District is correct at the

first step of the predominance analysis—that proof of the value

of a particular class member’s property will be individualized—a

number of factors render that issue a minor part of the

otherwise strikingly common class claims, so the District’s

argument must fail at the second step.




405 (2d Cir. 2015) (Comcast did not displace the Second
Circuit’s long-established rule that “the fact that damages may
have to be ascertained on an individual basis is not sufficient
to defeat class certification under Rule 23(b)(3)”) (quotation
marks omitted); In re Deepwater Horizon, 739 F.3d 790, 815 (5th
Cir. 2014) (Comcast “has no impact on cases . . . in which
predominance was based not on common issues of damages but on
the numerous common issues of liability”).


                               43
    First, the valuation issue may be provable by the District’s

own existing property valuations, making it subject to efficient

proof of a more common nature (i.e. proof based upon a

preexisting record that was compiled pursuant to a common

methodology). As the plaintiffs note, the District regularly

assesses the value of properties within its borders in

calculating property taxes. See Mem. at 20. These assessments

provide a preexisting uniform source for the value of each

property—the calculation of which the District contends is so

individualized that class treatment is unwarranted. Indeed, the

District’s Office of Tax and Revenue has made several assertions

that support the utility of these figures as a proxy for market

value.8 There is thus a common basis for potential resolution of


8 The Office asserts that its assessments reflect “the estimated
market value of your property,” which it defines as “the most
probable price for which you can sell your property given normal
terms and conditions of sale.” Real Property Assessments and
Appeals FAQs, D.C. Office of Tax and Revenue, http://otr.cfo.dc.
gov/page/real-property-assessments-and-appeals-faqs (last
visited April 13, 2015). It also touts the “substantial
improvements” it has made to the assessment process “to provide
the most equitable and uniform assessments possible,” and claims
that the Office prepares reports to “measure[] assessment
quality by looking at the most recent assessment program and
comparing the results of that effort to actual market
conditions.” Real Property Assessment Process, D.C. Office of
Tax and Revenue, http://otr.cfo.dc.gov/node/388692 (last visited
April 13, 2015). The latest such report claims that “[t]he data
show that the District has acceptable levels and uniformity of
assessments” and that a comparison of assessments to real market
sales prices demonstrated that “values determined by appraisers
for the most recent valuation attained a uniform and appropriate
level of value.” Real Property Tax Administration, D.C. Office


                                 44
the valuation issue, without the need for any individualized

proof beyond references to the District’s calculations.

  The District, in response, questions the validity and utility

of its own appraisals. See Opp. at 25. Assuming without deciding

that the District would prevail on this argument, the District

offers no explanation of why conducting new appraisals would

overwhelm the otherwise common issues in the case. Indeed, the

District did not respond to the assertion in plaintiffs’ motion

that “new appraisals could be conducted using common, standard

appraisal methods across the class.” Mem. at 22. At least one

court has certified a (b)(3) class despite the need for similar

appraisals. See Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597,

607 n.5 (E.D. La. 2006) (class “presented evidence that certain

elements of their alleged damages may be assessed on a class-

wide basis,” one of which was that “the properties at issue

would be properly subject to mass appraisal to determine their

present value”). Nor is it uncommon to certify a (b)(3) class

despite the need for other types of individualized calculations,

especially where the formula and method for conducting the

calculation is itself common. See, e.g., Ward v. Dixie Nat’l

Life Ins. Co., 595 F.3d 164, 169, 180 (4th Cir. 2010) (where



of Tax and Revenue, FY 2015 Assessment Ratio Report 2, 8 (2015),
available at http://otr.cfo.dc.gov/sites/default/files/
dc/sites/otr/publication/attachments/2015RPTASalesRatioReportFin
al.pdf (last visited April 13, 2015).


                               45
liability issues were largely common, predominance was met even

though damages were individualized because “the formula for

damages was identical for all class members”); Ramos, 796 F.

Supp. 2d at 359 (“True, the putative class members earned

prevailing wages at different rates, some worked more hours than

others, and some are electricians and others are sprinkler

fitters. However, these differences do not predominate over the

main issue: whether defendant systematically failed to pay its

employees the prevailing wages due them.”).

    The predominance requirement is therefore met because the

class challenges a “generalized practice,” the “central element

of Plaintiffs’ theory of liability . . . is common to every

class member,” and “even the minor differences between the class

members—such as the amount of total damages—are susceptible to

generalized proof since a common formula is used to calculate

the individual damages.” Alvarez, 303 F.R.D. at 162. Even if the

valuation issue were entirely individualized, “this single fact

would not preclude a finding that common questions of law and

fact predominate over individual questions.” Bynum, 214 F.R.D.

at 39.9 Accordingly, even if the District is correct that its own


9 Nor would any defense related to the statute of limitations
prevent the class from meeting the predominance requirement.
“Statute of limitations defenses . . . rarely defeat class
certification.” Newberg on Class Actions § 4:57 (5th ed. 2014);
see also Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 924
(3d Cir. 1992) (“Courts have been nearly unanimous . . . in


                                 46
appraisals should not be used, the common liability and damages

issues will predominate over the single individualized issue of

calculating appraisals for each class member’s property pursuant

to a common calculation method.

       b.   Superiority

  The superiority requirement is intended to “ensure[] that

resolution by class action will ‘achieve economies of time,

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

to persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable consequences.”

Vista Healthplan, Inc. v. Warner Holdings Co., 246 F.R.D. 349,

359–60 (D.D.C. 2007) (quoting Amchem, 521 U.S. at 615)

(alteration in original). The Rule directs the Court to



holding that possible differences in the application of a
statute of limitations to individual class members, including
the named plaintiffs, does not preclude certification of a class
action”) (quotation marks omitted). This is so because even when
they are individualized, “courts deem that these concerns can be
resolved during the damage phase of the case and need not
preclude certification of liability issues.” Newberg on Class
Actions § 4:57 (5th ed. 2014); see also Waste Mgmt. Holdings v.
Mowbray, 208 F.3d 288, 296 (1st Cir. 2000) (“As long as a
sufficient constellation of common issues binds class members
together, variations in the sources and application of statutes
of limitations will not automatically foreclose class
certification under Rule 23(b)(3).”). To the extent the District
raises such a defense as to the claims of some class members,
that defense can be adjudicated separately during the damages
phase of this case. For similar reasons, the potential
abandonment, consent-to-judgment, and res judicata defenses—
raised by the District only in connection with the numerosity
analysis—form minor issues that would not upset the predominance
of common liability issues.


                                  47
consider, in analyzing the alternatives to class-action

treatment, the following factors: “the class members’ interests

in individually controlling the prosecution or defense of

separate actions; the extent and nature of any litigation

concerning the controversy already begun by or against class

members; the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and the likely

difficulties in managing a class action.” Fed. R. Civ. P.

23(b)(3). Although the District’s opposition to the motion for

class certification stated that “several pertinent factors

indicate that class certification is not superior,” it did not

enumerate these factors or otherwise address the superiority

issue. See Opp. at 24-25.

  A class action is superior when it “may forestall an

inefficient and uneconomical flood of individual lawsuits and/or

prevent inconsistent outcomes in like cases.” Newberg on Class

Actions § 4:67 (5th ed. 2014). This is an especially powerful

concern when, as here, common issues predominate strongly. “If

there are genuinely common issues, issues identical across all

the claimants, issues moreover the accuracy of the resolution of

which is unlikely to be enhanced by repeated proceedings, then

it makes good sense, especially when the class is large, to

resolve those issues in one fell swoop.” Mejdrech v. Met-Coil

Systems Corp., 319 F.3d 910, 911 (7th Cir. 2003). In these


                               48
situations, it is reasonable to assume that “the class members’

interests in individually controlling the prosecution or defense

of separate actions” are limited because their “claims may be so

closely related to the claims of others that litigation by

others will achieve their ends without the need for their

involvement.” Newberg on Class Actions § 4:69 (5th ed. 2014).

  Superiority is also often found when use of the class action

device would “enable[] ‘vindication of the rights of groups of

people who individually would be without effective strength to

bring their opponents into court at all.’” Id. § 4:65 (quoting

Amchem, 521 U.S. at 617). In such circumstances, “[m]ultiple

lawsuits would be costly and inefficient, and the exclusion of

class members who cannot afford separate representation would be

neither fair nor an adjudication of their claims.” In re Auction

Houses Antitrust Litig., 193 F.R.D. 162, 168 (S.D.N.Y. 2000)

(quotation marks omitted).

  Essentially every liability issue in this case is common, with

the exception of the valuation of individual properties. See

supra Part III.C.2.a. The 34 class members in this case, by

definition, have less financial resources, a lesser ability to

manage their legal affairs, or both, than the average citizen.

See supra Part III.B.1.b. In the absence of a class action,

then, class members are less likely to be able to prosecute

separate actions, and if they were to do so, would face


                               49
inefficient resolution of 34 disputes that are largely identical

to the disputes presented by Mr. Coleman and Ms. Robinson’s

Estate. Accordingly, this case is a prime candidate for the use

of a (b)(3) class to handle more efficiently all common claims.

     The other factors enumerated in Rule 23(b)(3) do not weigh

heavily against the use of a class action. The parties have

alerted the Court to no other litigation regarding this subject

matter.10 If anything, the desirability of concentrating the

litigation in a particular forum counsels in favor of a class

action, because the relevant actions necessarily occurred in the

District and the defendant is located here. Nor is there any

risk that the classes will be particularly unmanageable, given

the extent to which class members raise common issues.

IV.    Conclusion

     For the foregoing reasons, the Court hereby GRANTS plaintiffs’

motion for class certification. An appropriate Order accompanies

this Memorandum Opinion.

     SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            April 13, 2015


10That others may be litigating cases against the private entity
that bought their tax lien and ultimately instituted the
foreclosure does not bear on this question, which asks whether
there is other litigation regarding the issue raised in this
case—a Takings Clause claim against the District of Columbia for
the taking of excess equity.


                                  50
