District Court (Cal.) Reconsiders Decertification of Rosenthal Act Class as to Whether the Class Representative Must Establish Standing for Each Putative Classmember

In Weiner v. Ocwen Fin. Corp., No. 2:14-cv-02597-TLN-DB, 2023 U.S. Dist. LEXIS 33107, at *7 (E.D. Cal. Feb. 27, 2023), Judge Nunley reconsidered Judge Englund’s previous decertification order, finding that Judge Englund erred in his evaluation of whether the class representative must establish class-wide Art. III standing.

In the Court’s order granting Ocwen’s motion for class decertification, the Court stated, “the crux of the inquiry in the instant matter is whether the Supreme Court’s decisions in TransUnion changes Judge England’s finding of predominance of common questions in his order certifying the class.” (ECF No. 219 at 9.) In answering this question, the Court interpreted TransUnion to require that Plaintiff demonstrate “every class member. . . suffered the alleged monetary harm in order to establish Article III standing to proceed before this Court.” (Id. at 12.) Based on this interpretation of TransUnion, the Court concluded “[b]ecause Plaintiff cannot definitively establish at this juncture that each class member in each of the three classes certified by Judge England has suffered this concrete harm, the Court finds that the questions of law and fact common to class members does not predominate over any questions affecting only individual members under Rule 23(b)(3).” (Id.) (internal quotations omitted) (emphasis in original). This interpretation of TranUnion and the Court’s resulting conclusion was in error. The Court was correct that the issue in the class decertification motion was whether TransUnion changed Judge England’s finding of predominance in his order certifying the class. However, the Court improperly interpreted TransUnion in proceeding with its subsequent analysis. In determining that “every class member must have suffered the alleged monetary harm in order to establish Article III standing to proceed before this Court,” the Court misinterpreted the ultimate holding of TransUnion. (Id. at 12.) TransUnion, as Plaintiff properly notes in their motion for reconsideration, did not require a showing that every class member suffered harm before proceeding at this stage. Rather, as the Ninth Circuit noted in Olean the Supreme Court’s decision in TransUnion “clarified ‘[e]very class member must have Article III standing in order to recover individual damages.” 31 F.4th 651, 669. In other words, TransUnion stands for the ultimate proposition that class members who cannot establish Article III standing cannot recover individual damages. Contrary to this Court’s previous holding, TransUnion does not require Plaintiff to “definitively establish at this juncture that each class member in each of the three classes certified by Judge England has suffered [] concrete harm.” (ECF No. 196 at 12.) Rather, “[t]he Supreme Court expressly held open the question whether every class member must demonstrate standing before a court certifies a class.” Olean, 31 F.4th at 682 n. 32 (citing TransUnion, 141 S.Ct. at 2208 n.4) (internal quotations omitted) (emphasis omitted). In Olean, the Ninth Circuit rejected the argument that “plaintiffs must prove that all or nearly all class members were in fact injured” at the certification stage. Id. at 680. At this stage the district court need only determine the evidence is capable of showing “class members suffered . . . [harm] on a class-wide basis.” Id. at 681. Further, the court in Olean expressly rejected the argument that “Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members.” Id. at 669. Put affirmatively, a class containing more than a de minimis number of uninjured class members may be certified pursuant to Rule 23. Id. Therefore, this Court’s previous order improperly held that Plaintiff was required to “establish at this juncture that each class [member] . . . suffered [the alleged] concrete harm.” (ECF No. 196 at 12.)  Ocwen, however, is correct that TransUnion does weigh on Rule 23. Because individuals in a class must have Article III standing to recover damages, TransUnion instructs courts to determine “whether individualized inquiries into this standing issue would predominate over common questions[.]” Id. Accordingly, the Court must determine whether such issues of standing would be so pervasive as to “predominate” over the common questions of law or fact. This, however, is not a novel practice. See Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019). Prior to TransUnion, courts were required to determine whether questions of law or fact common to class members predominate over any questions affecting individual members. See Fed. R. Civ. P. 23(b)(3). As Article III standing constitutes a “question[] affecting individual members” certifying courts, even before TransUnion, were required to weigh determinations of class member standing against common questions of law or fact before granting certification. See Lauderdale v. NFP Ret., Inc., No. 21-cv-301-JVS, 2022 U.S. Dist. LEXIS 95857, 2022 WL 1599916, at *4 (C.D. Cal. Feb. 16, 2022) (“Nothing in TransUnion indicates that it changed settled Ninth Circuit law regarding what it is required to demonstrate standing at the class certification stage.”) Thus, TransUnion was not a sea change in a court’s Rule 23(b)(3) predominance analysis and as such TransUnion cannot be said to require reversal of Judge England’s original certification.  Because this Court’s previous order was premised upon an erroneous interpretation of TransUnion, as outlined above, the Court GRANTS Plaintiff’s motion for reconsideration (ECF No. 220) and VACATES its prior order dated January 12, 2022 (ECF No. 219).