Lewis v. First American Title Insurance , 265 F.R.D. 536 ( 2010 )

ORDER ADOPTING REPORT AND RECOMMENDATION

EDWARD J. LODGE, District Judge.

Before the court is Magistrate Judge Larry Boyle’s Report and Recommendation to grant Plaintiff Deborah Lewis’s (“Lewis”) Motion for Class Certification, (Docket No. 50), for an Idaho-only class, and to deny Defendant First American Title Insurance Company’s (“First American”) Motion to Strike (Docket No. 60). First American filed objections to the magistrate judge’s Report and Recommendation (Docket No. 75), which this court denies in part as to the recommendation for class certification and grants in part related to striking certain evidence.

FACTUAL BACKGROUND

Lewis alleges that First American overcharged Lewis for her title insurance policy associated with her refinanced residential mortgage, in violation of Idaho Code § 41-2705 to 2707. Lewis claims that First American overcharged her by at least $364.00 in her own mortgage refinance transaction in Idaho by charging her the standard premium rate rather than the discounted rate required by Idaho law. Lewis alleges that First American violated similar title insurance premium statutes in Arizona, New Mexico, Oregon, and Washington (“the multi-state area”) by overcharging other similarly situated customers.

Although the details differ from state to state, state law requires title insurance companies to charge a discounted rate for refinanced mortgages. The states at issue here—Arizona, Idaho, New Mexico, Oregon, and Washington—regulate title insurance. See generally Ariz. Revised. Stat. tit. 20; Idaho Code tit. 41; N.M. Stat. ch. 59-59A; Or. Revised Stat. tit. 56; Revised Code Wash. tit. 48. Arizona, Idaho, Oregon, and Washington require title insurance companies to submit rate schedules for approval. New Mexico instead publishes a flat discount rate. Each state also requires title insurances companies to adhere to the submitted or published rate. The relevant differences between each state’s requirements are laid out below.

• Arizona—Docket No 50-3, Exh. 5

• Discount Rate: 65% of the premium rate; 50% of the premium rate in Coconino, Grahm, Greenless, La Paz and Mojave Countyies; a different premium rate schedule exists in Pima County.

• Scope: Applies to all lenders who are refinancing a previously insured loan with the same borrower, on the same property, and within the prior five years, or if a prior owner insured the property within the prior five years.

• Exceptions: (1) In Maricopa County, the 65% rate applies only in limited circumstances; and (2) applying the discount rate is discretionary if the prior loan was not insured by First American.

• Idaho: Docket No. 50-2, Exh. 4.

• Discount Rate: 50% of the premium rate

• Scope: Applies if a title policy was already issued on the same property to the same owner in the last two years, and the owner must present the former title policy or reasonable proof thereof, when applying for new title insurance.

• Exception: The owner need not present the prior title policy if the same title insurer also insured the prior policy.

• New Mexico: N.M. Admin. Code § 13.14.1-20

• Discount Rate: A sliding scale of 40-55% of the premium standard rate.

• Scope: Applies to all refinanced mortgages, if the prior loan occurred within five years of the second loan. After five years, a discount rate is not applicable.

• Oregon: Docket No. 50-3, Exh. 6

• Discount Rate: (1) Before April 3, 2006-80% of the standard premium rate; (2) After April 3, 2006-75% of the standard premium.

• Scope: Applies if a title policy was already issued on the same property, to the same owner, and within the past three years.

• Washington: Docket 53-5, Moore Deck, ¶¶ 6-8, 20-41 Various rate schedules applied in different counties. This is a general summary.

• Discount Rate: 50% of the standard premium rate

• Scope: Applies if a previous property has been insured with a title policy; many counties require the same owner; some counties do not. mandate a discount rate if the second loan is above a certain amount.

PROCEDURAL BACKGROUND

First American moves to strike two pieces of evidence in support of Lewis’s class certification motion: (1) a summary of 112 HUD-1 settlement statements from Oregon agents of First American, and (2) testimony related to Lewis’s review of eighteen HUD-1 settlement statements from the multi-state area and the eighteen HUD-1 statements themselves.¹ Motion to Strike (Docket No. 59). Both pieces of evidence support Lewis’s argument for the existence of a class and Federal Rule of Civil Procedure 23(a)(l)’s numer-osity requirement.

First American challenges the summary evidence under Rule 1006 of the Federal Rules of Evidence (“FRE”) for lack of foundation and inaccuracy. Motion to Strike Memorandum, at 3-7 (Docket No. 60). The summary is based solely on Oregon-only insurance contracts. (Docket 50-4, Exh. 12, SEALED). First American argues that the second piece of evidence related to Lewis’s review of eighteen HUD-1 settlement statements is improper lay opinion and does not meet the Daubert/Kumho standard for expert testimony. Id. at 7-11.

Regarding Lewis’s motion for class certification, Lewis withdrew her request for class certification for injunctive relief under Federal Rule of Civil Procedure 23(b)(2) at the hearing before the magistrate judge. Remaining before this court is Lewis’s class certification request for an unjust enrichment claim under Federal Rule of Civil Procedure 23(b)(3).

The magistrate judge recommends finding that Lewis has met all requirements for class certification, except typicality. For this reason, the magistrate judge recommends certifying an Idaho-only class given the differences in state law that would render First American liable for unjust enrichment. The magistrate judge recommends the following class definition:

The Court will certify a class defined as: All persons in the state of Idaho who, in connection with a mortgage refinancing transaction: (a) paid a premium for the purchase of residential title insurance from First American Title Ins. Co.; (b) had either an unsatisfied mortgage from and institutional lender or a deed to a bona fide purchaser in the chain of title within two years of the payment of the premium provided in the Title Insurance Rate manual in Idaho; and (c) did not receive the discount specified in the Manual.

Magistrate’s R & R, at 30-31 (Docket No. 73).

The magistrate judge also recommended denying First American’s motion to strike both pieces of evidence. This recommendation did not resolve the underlying admissibility question: whether the FRE apply in full force at the class certification stage or whether some lesser standard should apply.

OBJECTIONS

First American raises five objections to the magistrate judge’s Report and Recommendation. Defendant’s Objections to the Magistrate Judge’s Report and Recommendation (“Defendant’s Objections”), at 4-19 (Docket No. 75). Lewis did not raise objections of her own and only responded to First American’s objections, which are as follows:

• That the magistrate judge erroneously denied First American’s motion to strike evidence and relied on a lower admissibility standard when admitting the evidence;

• That the magistrate judge improperly relied on non-Idaho evidence to certify an Idaho-only class;

• That the magistrate judge improperly conflated the existence of a prior mortgage with the existence of a prior title policy and therefore improperly certified the class;

• That the magistrate judge improperly found that common questions of fact and law predominated under Rule 23(b)(3), and therefore supported class certification, because determining liability requires looking at each putative class member’s file; and,

• That the magistrate judge improperly concluded that the class was manageable under Rule 23(b)(3) given the individual nature of each title insurance transaction.

DISCUSSION

I. Standard of Review

Upon review of a magistrate judge’s findings, a district court may “reconsider any pretrial matter ... where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). If a party objects to any portion of the magistrate judge’s report or findings, a district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C). Moreover, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

II. Admissibility Standard

First American argues that the magistrate judge erroneously denied its motion to strike because the magistrate judge incorrectly applied a lower admissibility standard that should be inapplicable at the class certification stage. Defendant’s Objections, at 5-8 (Docket No. 75). The issue is whether the FRE apply in full force at the class certification stage, and particularly whether Daubert’s expert testimony requirements apply.

The Ninth Circuit has not explicitly decided this issue, though the FRE and the minimal case law available support First American’s position that the FRE apply generally at the class certification stage.² Rule 101 of the FRE establishes the scope of the FRE: “These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.” Fed.R.Evid. 101. Rule 1101 of the FRE, in turn, does not except or change the application of the FRE at the class certification stage. See Fed.R.Evid. 1101.

The magistrate judge did not explicitly recommend which admissibility standard to apply but presumably applied a more relaxed admissibility standard based on Parkinson v. Hyundai Motor America, 258 F.R.D. 580 (C.D.Cal.2008), a case the magistrate judge cited and quoted before the recommendation. In Parkinson, the court reasoned that “a motion for class certification is not dispositive and need not be supported by admissible evidence,” but that “the Court should not abandon admissibility standards entirely at the certification stage.” Parkinson, 258 F.R.D. at 599. This reasoning is unpersuasive because the FRE do not determine applicability based on whether the motion is dispositive or not, but based on a limited set of exceptions set forth in Rule 1101. It is true that a district court may properly delegate a matter to a magistrate judge if the motion is not dispositive, but the FRE and case law do not appear to permit importing this standard to the applicability of the FRE.

Moreover, the cases Lewis relies upon do not support finding that the FRE should apply with lesser force at the class certification stage because those cases either do not fully explore the issue or refer to an eviden-tiary standard in dicta. See, e.g., Bell v. Addus Healthcare, Inc., No. C06-5188, 2007 WL 3012507, at *3 (W.D.Wash. Oct.12, 2007) (noting only that “the Court is still not persuaded that it must apply the traditional rules ... [to] evidence in support of class certification”).³ In contrast, the Seventh Circuit held, under the former Federal Rule of Civil Procedure 23(e), that the FRE fully applied. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 938 (7th Cir.1989). The Court reasoned that Rule 101 requires that the FRE always apply and that the exceptions in Rule 1101 did not provide otherwise in that case. Id.

As other courts have noted, a lower admissibility standard may apply at the class certification stage when expert evidence is at issue because of the complexity of the issues and the need to conserve judicial resources. This court need not reach this issue, however, because First American improperly categorizes the evidence at issue as expert evidence. This is discussed in full below. The court will fully apply the admissibility standards of the FRE to this class certification motion because the FRE and case law support this conclusion.

A. Summary of HUD-1 Statements

First American objects to Lewis’s submission of a summary of 112 HUD-1 settlement statements from Oregon. Defendant’s Objections, at 8-12 (Docket No. 75). First American argues that the evidence is not relevant because the magistrate judge recommended certifying an Idaho-only class.

Under the FRE, all relevant evidence is admissible. Fed.R.Evid. 402. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The summary of the Oregon HUD-1 settlement statements is not relevant because the class has been limited to an Idaho-only class. Although the evidence could be relevant because it is probative of First American’s engagement in a consistent pattern of overcharging homeowners for title insurance on refinanced mortgages, Lewis has not demonstrated that she seeks to admit the evidence for this purpose.

First American also argues that the summary of HUD-1 settlement statements is inadmissible for lack of foundation because the summary is inaccurate. Because the court has already found the summary evidence irrelevant, the court need not and does not address this argument.

This court therefore grants First American’s motion to strike the summary of Oregon HUD-1 settlement statements, without prejudice to renewing the motion.

B. Other HUD-1 Statements

First American argues that this court should strike Lewis’s proffer of eighteen HUD-1 settlement statements from the multi-state area because they do not prove that an overcharge occurred, and therefore cannot support Lewis’s motion for class certification. For the same reasons discussed above, the eleven non-Idaho HUD-1 settlement statements are not relevant. The seven HUD-1 settlement statements from Idaho are relevant. To prove Lewis’s unjust enrichment claim, Lewis needs to prove that First American incorrectly overcharged the premium rate, which requires a HUD-1 settlement statement, chain of title and a prior policy, and the applicable rate. The Idaho HUD-1 settlement statements are therefore relevant, in conjunction with other evidence, to prove that First American systematically overcharged mortgagors for title insurance in Idaho.

First American implicitly argues that Lewis is required to submit evidence of her claim at the class certification stage. Lewis is not yet required to prove her claim. The Supreme Court has explicitly disavowed a requirement that a plaintiff seeking class certification must prove that it is more likely than not to prevail on the merits of a claim. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (“We find nothing ... that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”).

First American also seeks to classify this evidence as expert testimony, apparently because of Lewis’s assertion in her motion for class certification that all eighteen HUD-1 settlement statements evince an eighty percent overcharge rate. See Plaintiff’s Motion for Class Certification, at 1, 8 (Docket No. 50); Defendant’s Objections, at 10-11 (Docket No. 75). Admittedly, Lewis’s conclusion is unexplained and unwarranted because all the documents necessary to determine whether an overcharge occurred were not submitted. This is simply an argument Lewis makes in her Motion for Class Certification and does not constitute evidence. For this reason, this court need not and does not accept as true Lewis’s conclusions regarding the individual HUD-1 settlement statements submitted in Exhibit 12. The Court declines the party’s invitation to prematurely decide whether such a conclusion constitutes expert evidence.

The court denies without prejudice First American’s motion to strike the seven HUD-1 settlement statements from Idaho and grants First American’s motion to strike the eleven non-Idaho HUD-1 settlement statements.

III. Reliance on Nonr-Idaho Evidence

First American next argues that the magistrate judge improperly relied on non-Idaho evidence to certify an Idaho-only class, thereby certifying a class that Idaho-only evidence does not support. Defendant’s Objections, at 11-14 (Docket No. 75). This argument is misleading. At the class certification stage, a plaintiff need not present evidence because discovery has not yet occurred. In fact, “the district court is bound to take the substantive allegations of the complaint as true.” In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig. v. Standard Oil Co. of Cal., 691 F.2d 1335, 1342 (9th Cir.1982) (citation omitted). The district court may, of course, consider evidence that supports or does not support class certification, but a district court may certify a class without supporting evidence. Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.1992).

To the extent that the magistrate judge’s Report and Recommendation relies on non-Idaho evidence, this court does not adopt those findings.

First American also challenges the merits of the magistrate judge’s recommendation to certify an Idaho class given the lack of supporting evidence. A district court may certify a class if:

(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). In addition to these four requirements, a district court must also find that one of three conditions in Federal Rule of Civil Procedure 23(b) is met. The party seeking certification bears the burden of showing that each of the four requirements in Rule 23(a) are met and one of the conditions in Rule 23(b) is met. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended, 273 F.3d 1266 (9th Cir.2001).

A. Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). This court finds that Lewis has demonstrated numerosity for the following reasons. First, the magistrate judge did not rely entirely upon the non-Idaho evidence that is no longer part of the record. Second, Lewis alleges a putative multi-state class that would have included more than 360,000 members. An Idaho class, although necessarily far smaller than 360,000, at least numbers tens of thousands of people. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994) (holding that the numerosity requirement is met because the plaintiff alleged a class numbering in the hundreds of thousands and even though the exact number was unknown). Although Lewis’s calculation about the frequency of overcharge is speculative, the underlying data does indicate that at least tens of thousands of people in Idaho applied for refinance mortgages with First American. Plaintiffs Motion for Class Certification, at 8-9 (Docket No. 50). Third, at the class certification stage, Lewis is not required to produce evidence that First American engaged in a pattern of overcharge, and Lewis’s failure to do so is reasonable because discovery is not complete. Moreover, First American has not submitted its own evidence that persuades the court that Lewis’s substantive allegations are wrong. As noted above, the parties’ arguments about what the seven Idaho HUD-1 settlement statements prove are premature. Finally, this court is also persuaded to find that Lewis has demonstrated numerosity given the lesser or similar showing other district courts have found sufficient. See, e.g., Ran-dleman v. Fid. Nat’l Title Ins. Co., 251 F.R.D. 267, 274-75 (N.D.Ohio 2008) (finding numerosity satisfied because the putative class numbered “in the tens of thousands”), amended, No. 3:06cv07049, 2009 WL 3012081 (N.D.Ohio Sept.15, 2009); Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295, 299 (E.D.Pa. 2007) (same).

B. Commonality, Typicality, and Adequacy of Representation

First American also summarily argues that the magistrate judge relied on non-Idaho HUD-1 settlement statements to find that Lewis had demonstrate commonality, typicality, and adequacy of representation. The magistrate judge did not rely on non-Idaho evidence in finding that Lewis had demonstrated commonality, typicality, or adequacy of representation. First American’s cursory argument to this effect is incorrect and is therefore rejected without merit.

IV. Prior Mortgage as Evidence of a Prior Title Insurance Policy

First American next argues that the magistrate judge improperly conflated the existence of a prior mortgage with the existence of a prior title policy in its proposed class definition. This court agrees and modifies the class definition as follows:

The Court will certify a class defined as: All persons in the state of Idaho who, in connection with a mortgage refinancing transaction: (a) paid a premium for the purchase of residential title insurance from First American Title Ins. Co.; (b) had either an unsatisfied mortgage from an institutional lender and prior title policy insurance, or a deed to a bona fide purchaser in the chain of title within two years of the payment of the premium provided in the Title Insurance Rate manual in Idaho; and (c) did not receive the discount specified in the Manual.

V. Predominance of Individual or Class Issues—Rule 23(b)(3)

First American next argues that the magistrate judge improperly recommended finding that Lewis had demonstrated commonality because individual issues predominated given that determining liability for unjust enrichment requires looking at each putative class member’s file. This argument presumably refers to Rule 23(b)(3)’s requirement that common questions “predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3).

The magistrate judge correctly concluded that Lewis demonstrated predominance. Although examining each class member’s file is necessary, this is an almost automatic process to determine whether the title policy shows a prior mortgage and whether the person received the discounted rate. Moreover, at the merits stage, liability will quickly become apparent because either the customer will have received the discount rate or not.

First American also suggests that they do not have the ability to easily collect each class member’s title insurance policy. As other district courts have found, this court similarly finds that “[i]t strains credulity to suggest ... that the Defendant ] ... lack[s] the ability to compile information on insurance policies that they have issued, even if those policies have been issued by independent agents.” Mitchell-Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 551, 560 (D.Md.2006) (quoted in Cohen, 242 F.R.D. at 302).

VI. Manageability—Rule 23(b)(3)

Lastly, First American argues that the recommended class would be unmanageable given the individual nature of each title insurance transaction. This argument presents the same defects as First American’s predominance argument and is likewise rejected.

ORDER

For the reasons stated above, Plaintiffs Motion for Class Certification (Docket No. 50) is GRANTED as follows:

1. The class is defined as:

All persons in the state of Idaho who, in connection with a mortgage refinancing transaction: (a) paid a premium for the purchase of residential title insurance from First American Title Ins. Co.; (b) had either an unsatisfied mortgage from an institutional lender and prior title policy insurance, or a deed to a bona fide purchaser in the chain of title within two years of the payment of the premium provided in the Title Insurance Rate manual in Idaho; and (c) did not receive the discount specified in the Manual.

2. The Court will deny class certification over all other Plaintiffs.

3. The Court will appoint as lead Plaintiff Deborah Lewis of Nampa, Canyon County, Idaho.

4. The Court will appoint Benjamin A. Schwartzman, of Banducci, Woodard, Schwartzman, PLLC; Paul M. Weiss, of Freed & Weiss, LLC; Richard J. Burke, of Richard J. Burke, LLC; and, Carl P. Burke, individually, as class counsel.

Defendant’s motion to strike (Docket No. 60) is GRANTED with respect to the summary of 112 Oregon HUD-1 settlement statements and as to HUD-1 settlement statements from Washington, Oregon, Arizona, and New Mexico in Exhibit 12.

Plaintiffs motion to strike the Defendant’s reply to Plaintiffs response to objections (Docket No. 78) is GRANTED neither the applicable federal rules or local rules provide for a reply to be filed. Moreover, the reply filed does not change the court’s determination regarding granting the class certification.

REPORT AND RECOMMENDATION

LARRY M. BOYLE, United States Magistrate Judge.

Currently pending before the Court is: (1) Plaintiffs Motion to Certify Class (Docket No. 50); and (2) Defendant’s Motion to Strike Plaintiffs Evidence Submitted in Support of Class Certification (Docket No. 59). Plaintiff seeks certification of a class of all persons who defendant First American Title Insurance Company allegedly overcharged for residential title insurance policies purchased in the states of Arizona, Idaho, New Mexico, Oregon, and Washington. Having carefully reviewed the record, considered oral arguments, studied the voluminous briefs of the parties and otherwise being fully advised, the Court enters the following Report and Recommendation, and Order.

I. INTRODUCTION

Defendant First American Title Insurance Company is a nationwide underwriter of title insurance policies operating through a network of direct offices and independent agents. Defendant’s Opposition to Plaintiff’s Motion for Class Certification and Memorandum in Support Thereof filed August b, 2008, p. 2 (Docket No. 53) [hereinafter Defendant’s Brief ]. Plaintiff Deborah Lewis, in February of 2004, executed a mortgage and an original policy of title insurance on a residential property in Nampa, Idaho. Amended Complaint, p. 10 (Docket No. 7). Subsequently, in November of 2005, Plaintiff refinanced that mortgage. Id. In refinancing, Plaintiff was required to purchase a policy of title insurance for the new mortgage lender. Id. Accordingly, in connection with the refinance, Plaintiff paid Defendant a premium for the purchase of a title insurance policy for the lender. Id.

Plaintiff asserts that, in violation of Idaho Code §§ 41-2705-2707, Defendant improperly overcharged Plaintiff in her purchase of the title insurance policy associated with the refinanced mortgage. Id. Further, Plaintiff argues that Defendant has violated similar title insurance premium statutes in Arizona, New Mexico, Oregon and Washington by knowingly and/or negligently charging an untold number of similarly situated customers more than allowed under the state laws. Id. at 14-15.

Defendant denies these allegations. Moreover, Defendant argues that Plaintiff has failed to meet her burden of showing that this action should be class certified. See generally Defendant’s Brief (Docket No. 53). Further, Defendant moves to strike portions of two declarations Plaintiff offered in support of her class certification efforts. See generally, Defendant’s Motion to Strike Plaintiffs Evidence Submitted in Support of Class Certification Filed on August b, 2008 (Docket No. 59) [hereinafter Motion to Strike ].

II. BACKGROUND

Title insurance is an inherent aspect of virtually every mortgage loan and refinance transaction. Generally speaking, “[a] policy of title insurance [is] a contract which, in exchange for a one-time premium payment, insures [a lender] against actual loss resulting from defects, liens or encumbrances against title existing as of the date the policy goes into effect____” Richard R. Powell, Powell on Real Property § 92.01 (Michael A. Wolf ed., Matthew Bender 2008) (1949). Title insurance is a contract for indemnity. Id. at [1]. Likewise, it “is designed to [render] the insured harmless from any loss through defects, liens or encumbrances that may affect or burden [clear title].” Id. at [4].

There are two types of title insurance policies: (1) owner’s policies, and (2) lender’s policies. Id. at [2], An owner’s policy is purchased by the borrower/homeowner for the purpose of providing protection to his or her own property interest. Id. at [3]. A lender’s policy, on the other hand, is purchased for the benefit of the lender/mortgagee providing protection to the lender’s security interest in the property. Id. at [2]. A lender’s policy is typically paid for by the homeowner or the party refinancing, and is usually rolled into that party’s mortgage agreement. See id. An owner’s policy remains in effect as long as that particular homeowner owns the home; a lender’s policy remains in effect until the associated mortgage has been satisfied. Id. at [3]. In this action, Plaintiff raises issues dealing with lender’s insurance policies. Amended Complaint, p. 6 (Docket No. 7).

Lenders provide the financial means for borrowers to purchase real property. Loosely speaking, a mortgage occurs when a lender takes a security interest in a borrower’s real property. See Powell on Real Property § 37.03. Often, lenders “allow borrowers to refinance to obtain a more favorable interest rate or to spread the loan out over a longer term. Refinancing [usually] results in a lower payment that may be more manageable for the borrower.” Id. at 8:P7.01 [1]. Generally, lenders on a refinanced mortgage will still require coverage under a title insurance policy, despite the fact that the mortgagee holds a title insurance policy purchased by the same mortgagor under the original mortgage. See id. at § 92.14[5]. However, because the possibility of a defect in title is much diminished under a refinanced mortgage, title insurers often choose to give, and some states require, a discounted rate for policies on subsequent mortgages. See, e.g., Mitchell-Tracey, et al. v. United Gen. Title Ins. Co., 237 F.R.D. 551, 554 (D.Md.2006).

Arizona, Idaho, New Mexico, Oregon and Washington all regulate title insurers and have enacted statutory schemes to govern various aspects of title insurance in their state.¹ Relevant to this action, each state further requires that all title insurers submit, for approval, rate schedules that define how much a title insurer can charge customers, as well as the basis for that rate. See State Statutes. Generally, each state’s code requires that all title insurers doing business in that state not deviate from the rates or premiums filed within the state. See id. Plaintiff correctly notes that “[i]n New Mexico, insurance regulators themselves publish a single rate which governs premium amounts for all insurers.” Plaintiffs Motion for Class Certification, p. 4 (Docket No. 50). In Arizona, Idaho, Oregon and Washington, Defendant has filed rate schedules, as required, with the proper office in each state. Defendant’s Brief, p. 2 (Docket No. 53).

By way of summary, all five states have regulations that generally require title insurance companies to assign a discounted premium rate to customers who are reorganizing their mortgage. While the actual discount rate and the requisite conditions to qualify that rate differ from state to state, the underlying concept of the state laws are the same: a mortgagor who is refinancing their loan agreement should generally be afforded a lower title insurance premium rate if they so qualify under the published rate manual.

In Arizona, a revamping/refinancing rate (“discount rate”) applies to all policies² issued to a lender who is revamping or refinancing a previously insured loan with the same borrower on the same property within the prior five year period or on a policy where the property was insured by the owner within the previous five years. See Defendant’s Arizona Filings, attached as Ex. 5 to Declaration of Benjamin Schawartzman in Supp. of Mot. for Class Cert. (Docket No. 50-4). Generally, the discount rate premium, on standard or extended coverage, is 65% of the basic insurance rate.³ Further, the rate manual conspicuously notes that “[t]he use of this Section shall be at the sole discretion of management if the original loan was not insured by [Defendant].” Id. (emphasis in original).

In Idaho, a 50% discount is available when a title policy was issued within the prior two years on the same property by the same owner. Id. at Idaho Rate Manual, ex. 4. The rate manual requires that the prior policy or a copy of that policy be presented to the Defendant for the reissue rate (“discount rate”) to apply. Id. Notably, the rate manual states further that the Defendant shall retain a copy of any previously issued policies. Id. Thus, the discount rate in Idaho is apparently available to all those who previously purchased policies from Defendant or to those who present reasonable proof of a prior policy within two years of the original policy.

In Oregon, two rate manuals are relevant to the immediate action. “From 1986 through April 3, 2006, [Defendant] filed its own rate manual with the [State of Oregon] .... ” See Declaration of Alan Brickley (Docket No. 53-5). Subsequently, Defendant joined the Oregon Title Insurance Rating Organization (“OTIRO”), which files a general rate manual for all member groups. Id. Under both rate manuals, a short term rate (“discount rate”) is [available for “Owner’s, Purchaser’s, Leasehold or Lender’s Policies] ... covering the same property within three years from the effective date of the first policy issued.” See id. Prior to April 3, 2006, the discount rate was set at 80% of the standard rate; following Defendants joining the OTIRO, the discount rate was increased to 75% of the standard rate. Id.

In Washington State, rate manuals generally differ from county to county. See Declaration of Michael Moore (Docket No. 53-6). Defendant notes that during the time in question, as many as seventeen rate manuals were filed with the Washington State Insurance Commissioner. Id. Defendant explains that the various manuals cover different counties in the state as well as conditions that must be met in order to meet the requirements for a Mortgage Reorganization and/or Junior Mortgage Rate (“discount rate”). Id. Defendant further explains that “[a]s of December 10, 2007, these seventeen manuals have been reduced to five different rate structures.”

While the requirements to qualify for a discount rate throughout Washington vary, the basic structure of Defendant’s discount rate is by and large uniform: A 50% discount off of the standard rate is to be given on the same property, with many counties further requiring that the new deed of trust be executed by the same borrower, and some excluding rate discounts related to loans above a set amount.

Finally, in New Mexico, title insurance rates are set by the State Department of Insurance. Title companies operating in New Mexico are bound by the rates set by the State. N.M. Admin. Code 13.14.1-20. N.M. Admin. Code 13.14.9.39 provides a sliding scale of substitution rates for use on refinance mortgage loan transactions (“discount rate”).⁴ Under New Mexico law, the rate listing “applies] to all policies of title insurance issued on New Mexico properties ____” Id.

Plaintiff, on her own behalf, claims that Defendant overcharged her by at least $364.00 in a mortgage refinance transaction by charging the full basic insurance rate rather than the discount rate required by the published manual. See Motion to Certify Class, pp. 12-13 (Docket No. 50). Further, Plaintiff alleges that Defendant may have “perpetrated more that 367,418 premium overcharges”⁵ in a substantially similar way on similarly situated potential class members in Arizona, Idaho, New Mexico, Oregon and Washington State. Id.

III. CLASS DESCRIPTION

A. Class Definition

Plaintiff seeks certification of a class defined as follows:

Persons in the states of New Mexico, Arizona, Washington, Idaho and Oregon who, in connection with a mortgage refinancing, paid a title insurance premium for a First American Title Insurance Co. title insurance policy, the amount of which exceeded the rate on file in those states and/or excluded a lower, refinance rate for which such person qualified.

Id. at p. 10. Plaintiff contends that the members of this class are similarly situated to her and “easily satisffy] the requirements of Fed.R.Civ.P. 23.” Id. Defendant argues that Plaintiffs class definition is defective, because it is a “fail safe” class that impermis-sibly determines membership based upon a determination of liability. At oral arguments, Plaintiff conceded this point and suggested amending Plaintiffs proposed class definition. Accordingly, the court amends Plaintiffs proposed class definition to read as follows:

All persons in the states of New Mexico, Arizona, Washington, Idaho and Oregon who, in connection with a mortgage refinancing transaction: (a) paid a premium for the purchase of residential title insurance from First American Title Ins. Co.; (b) had either an unsatisfied mortgage from an institutional lender or a deed to a bona fide purchaser in the chain of title within the state’s listed time discount window of the payment of the premium provided in the Title Insurance Rate manual in that state; and (c) did not receive the discount specified in the Manual.

This change overcomes the “fail safe” issue and ensures that class members are bound by the determination of liability.

B. Class Claims

Defendant’s prior two motions to dismiss (Docket No. 27) were granted in part and denied in part, and the parties stipulated to the voluntary dismissal of Plaintiff Quinn Woodard. (Docket No. 30). Plaintiff seeks class certification on only two of the remaining claims, including the claim for declaratory and injunctive relief, and for unjust enrichment.

1. Declaratory and Injunctive Relief

Pursuant to 28 U.S.C. § 2201, on behalf of herself and similarly situated class members, Plaintiff seeks class certification on a claim for declaratory relief. Plaintiff seeks an Order declaring that:

(i) [Plaintiffs] are qualified for lower reissue rates in connection [sic] refinance transactions; (ii)[D]efendant was obligated to inform [Plaintiffs] of this fact and give them such lower reissue rates; (iii)[D]efen-dant violated the laws of Idaho, Washington, Oregon, New Mexico and Arizona by failing to give [P]laintiff[ ] and the class members that they qualified for such discount rates; [ (iv) ] the amount and classification (i.e., “standard”/“lenders’s” policy) of their title insurance coverage mandated that they received a lower premium price than that which they actually received; [ (v) Defendant was obligated to inform them of this fact and give them such lower price; [and (vi) Defendant violated the laws of Idaho, Washington, Oregon, New Mexico and Arizona by failing to give [Plaintiff! ]] and the Class members the lower premiums which correspond to their amount and classification of coverage, and by failing to inform [Plaintiff] and the Class members that they qualified for such lower premiums.

Amended, Class Complaint, p. 12-13 (Docket No. 7). With regard to injunctive relief, Plaintiff seeks:

a permanent injunction requiring defendant to notify in writing all owners of residential real estate who, in the context of a refinance transaction, pay premiums for the purchase of title insurance from defendant of: (1) the conditions upon which they may qualify for a reissue rate, and the reduced amount of that rate; [and] (2) the exact price of the official rate scheduled premium for a “lenders’s” title policy which corresponds the coverage being written.

Id. at p. 14.

2. Unjust Enrichment

Plaintiff also seeks class certification on a claim of unjust enrichment. Specifically, Plaintiff claims through Defendant’s conduct, “Defendant has been unjustly enriched at the expense of [Plaintiff] and the Class members.” Id. at p. 17. Plaintiff estimates damages in excess of $73,000,000.00. Motion to Certify Class, pp. 12-13 (Docket No. 50).

IV. MOTION TO STRIKE

Defendant moves to strike two pieces of evidence submitted by Plaintiff in support of class certification. Motion to Strike (Docket No. 59). Specifically, Defendant requests that “(1) a ‘summary’ of an unexplained review of 112 HUD-1 settlement statements [Plaintiff] subpoenaed from three [of Defendant’s] Oregon agents”; and (2) ... expert testimony related to a review of 18 HUD-1 [statements] from Idaho, Washington, Oregon, New Mexico and Arizona be stricken from the record and not be considered in support of class certification. Id. Plaintiff uses the evidence, apparently, to show the actual existence of a class and to support the Rule 23(a) requirement of numerosity. Plaintiff further uses the HUD-ls to illustrate the ease at which class members could be identified. Defendant contends that the evidence is “unreliable and incompetent and laek[s] any foundation.” Id.

According to Defendant, only admissible evidence may be considered for the purpose of certifying a class. Memo, in Supp. Of Motion to Strike, p. 2 (Docket No 59-60), citing Fed.R.Evid., 101, 1101; Dukes v. WalMart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007); Vasey v. Martin Marietta Corp., 29 F.3d 1460 (10th Cir.1994); Mars Steel Corp. v. Continental Bank, N.A., 880 F.2d 928 (7th Cir.1989); see also, Harrison v. McDonald’s Corp., 411 F.Supp.2d 862 (S.D.Ohio 2005); Richards v. Computer Sciences Corp., 2004 WL 2211691 (D.Conn. Sept.28, 2004); McElmurry v. U.S. Bank Nat’l Ass’n, 2004 WL 1675925 (D.Or. July 27, 2004); Clark v. Dollar Gen. Corp., 2001 WL 878887 (M.D.Tenn. May 23, 2001); Sjoblom v. Charter Commc’ns, LLC, 2007 WL 4560541 (W.D.Wis. Dec.19, 2007); Threatt v. Residential CRF, Inc., 2005 WL 4631399 (N.D.Ind. Aug.31, 2005).

Plaintiff disagrees, citing contrary authority. See Opposition to Motion to Strike (Docket No. 61), citing Disability Rights Council of Greater Washington v. Washington Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C.2006); Bell v. Addus Healthcare, Inc., 2007 WL 3012507 (W.D.Wash.2007); Tedrow v. Cowles, 2007 WL 2688276 (S.D.Ohio 2007); Thompson v. Board of Educ. Of Romeo Community Sch., 71 F.R.D. 398 (W.D.Mich.1976); Bacon v. Honda of Am. Mfg., 205 F.R.D. 466 (S.D.Ohio 2001).

Case law exists to support both positions. Further, “the issue has not been squarely addressed by the Ninth Circuit.” Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 599 (C.D.Cal.2008). Because a motion for class certification is not dispositive, the admissibility of evidence under the Rules is less relevant at this stage. See id. However,

the Court should not abandon admissibility standards entirely at the certification stage. For example, when expert reports are cited in support or opposition of certification, the Court need not engage in a full Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), analysis; however, the Court should conduct a limited inquiry into the reliability of the expert opinion and its relevance to determining a Rule 23 requirement. See Dukes, 509 F.3d at 1179-80. Id. Given the stage in the proceedings and the applicable evidentiary standard, Defendant’s motion to strike is denied -without prejudice. Plaintiffs evidence will be considered only for the purpose of class certification. Notably, Defendant’s evidentiary objections may be appropriately asserted, again, prior to trial in a motion in limine or during trial.

IV. CERTIFICATION ANALYSIS

A. Class Certification: The Standard

Under Federal Rule of Civil Procedure 23, the Court has broad discretion to determine whether a class should be certified. Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir.2007). Initially, there are two implicit prerequisites that must be satisfied for a grant of class certification. Lyell v. Farmers Group Inc. Employees’ Pension Plan, No. CV-07-1576, 2008 WL 5111113, at *3 (D.Ariz. Dec. 3, 2008). First, in order to assert a class action, the class must be “adequately defined and clearly ascertainable.” Id. (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970); see also Lozano v. AT & T Wireless Sens., Inc., 504 F.3d 718, 730 (9th Cir.2007)) (“The district court’s failure to analyze the Rule 23(a) factors in determining whether to grant class certification ... resulted in its certifying a theory with no definable class.”). “The class cannot be overly broad, amorphous, or vague, but must be susceptible to a precise definition.” Id. A class must be precisely defined so the Court can determine “whom effective notice of the pending action can be given and who will be bound by any judgment entered.” Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir.1996). Second, the named representative of the class must be a member of the class. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). Notably, “[t]he Ninth Circuit ... dovetails the class membership prerequisite with the typicality requirement of Rule 23(a).” Lyell, 2008 WL 5111113 at *3. In other words, among other things “[t]ypicality requires that the named plaintiff! be a member] of the class they represent.” Dukes, 509 F.3d at 1184.

Further, Rule 23(a) requires that the party seeking class certification establish that the proposed class satisfy the following four requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). Finally, Plaintiff must show that at least one of the factors listed in Rule 23(b) is present. Id.

With respect to the injunctive and declaratory relief sought, Plaintiff is proceeding under Rule 23(b)(2), and thus must show that Defendant’s “conduct or refusal to act was generally applicable to the [entire] class and that final injunctive or declaratory relief with respect to the entire class would be the appropriate remedy.” Id. Regarding the claim for unjust enrichment, Plaintiff is moving for class certification pursuant to Rule 23(b)(3). Motion for Class Certification, p. 14-19 (Docket No. 50). Under Rule 23(b)(3) a class action may be maintained if:

the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Fed.R.Civ.P. 23(b)(3). In other words, “the Court must determine whether common questions predominate over individual questions, and decide whether a class action is the superior means of adjudicating th[e] case.” Rowe v. E.I. DuPont de Nemours and Co. No. CV-06-1810, 2008 WL 5412912, at *20 (D.N.J. Dec. 23, 2008).

When reviewing a motion for class certification, the court generally takes substantive allegations made in the complaint as true. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir.1982) (citing Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975)). Notwithstanding, the court may look beyond the pleadings to ascertain whether all the requirements of Rule 23 have been met. Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.1992). In fact, “courts are not only at liberty to but must consider evidence which goes to the requirements of Rule 23, even [if] the evidence may also relate to the underlying merits of the case.” Dukes, 509 F.3d at 1178 n. 2 (internal quotations and citation omitted). Finally, if later evidence clouds certification, the court may always revisit the issue to modify or decertify any involved class. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

B. Requirements under Rule 23(a)

1. Adequately Defined and Ascertainable Class

Initially, beyond the listed prerequisites of Rule 23, there are two implied requirements that must be met. First, “an identifiable class must exist;” and second, “the named representatives [must be] members of the class.” See Fournigault v. Independence One Mort. Corp., 234 F.R.D. 641, 644 (N.D.Ill.2006). “It is axiomatic that for a class action to be certified a ‘class’ must exist.” Simer v. Rios, 661 F.2d 655, 669 (7th Cir.1981). Likewise, a class that is “amorphously defined” (Berman v. Narragansett Racing Ass’n, 414 F.2d 311, 317 (1st Cir. 1969)), “overly-broad” (Tefel v. Reno, 180 F.3d 1286, 1304 (11th Cir.1999)) or “vague” (Ihrke v. N. States Power Co., 459 F.2d 566, 572 (8th Cir.1972)) should not be certified. Simer, 661 F.2d at 669. Finally, the Manual for Complex Litigation explains that

An identifiable class exists if its members can be ascertained by reference to objective criteria. The order defining the class should avoid ... terms that depend on resolution of the merits (e.g., persons who were discriminated against).

Manual for Complex Litigation (Fourth), § 21.222 (2004).

As noted above, Plaintiff seeks class certification over similarly situated class members over five states who, in connection with a mortgage refinance transaction, paid a title insurance premium to Defendant in excess of the amount called for in the published rate manual of that state. Motion for Class Certification, p. 10 (Docket No. 50). Under this definition, the class is ascertainable, clear and definite. The class members can be discovered through objective criteria. Further, based on her own transaction with Defendant, it is clear that Plaintiff is a member of the class. Likewise, the undersigned finds that the class definition is adequate.

2. Numerosity

The prerequisite of numerosity is satisfied if “the class is so large that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). Defendant contends that, in light of Woodard v. Fidelity National Title Insurance Co., No. CV-06-1170, 2008 WL 5737364 (D.N.M. Dec. 8, 2008), Plaintiff has failed to demonstrate numerosity. At oral argument, Defendant asserted that Woodard is disposi-tive and that Plaintiff fails to meet numerosity in the same vein as Woodard, as a matter of law.

The New Mexico Court in Woodard provided that because the plaintiff “failed to provide any evidence that could reasonably demonstrate the class he proposes is ‘so numerous that joinder of all members is impracticable,’ ” numerosity is not met. Id. at 15. The New Mexico court states that “Plaintiff merely assert[ed] his ‘belief that ‘the class is comprised of thousands of individuals.’ ” The New Mexico court concludes that numerosity is, thus, not met because “unsubstantiated assertions and speculative beliefs ... are insufficient to demonstrate numerosity....” Id.

While it is true that the numerosity determination may not be based on mere speculation, neither is it true that Plaintiff need to allege the exact number or identity of all class members. See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994); Freedman v. Louisiana-Pac. Corp., 922 F.Supp. 377, 398 (D.Or.1996); 7A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1762 (3d ed.1995).

Plaintiff has submitted evidence, based on a review of several HUD-1 statements, that there are likely thousands of potential class members in the five-state class.⁶ Plaintiff also submits that based on the large number of people who are have title insurance policies with Defendant and the number of people who have been involved in a refinance transaction, it is axiomatic that a class of thousands of similarly situated plaintiffs exist. See Motion to Certify Class, p. 10-11 (Docket No. 50) (indicating that the putative class may number in excess of 360,000). Defendant responds that Plaintiff has not met her burden on this element: that they have not presented any admissible evidence of the number of individuals who have been overcharged by Defendant. However, Defendant seeks to impose here a level of specificity not required by Rule 23(a). Finally, it is persuasive that other Courts have certified classes like the one proposed here based on similar or lesser evidentiary showings. See, e.g., Randleman v. Fidelity National Title Ins. Co., 251 F.R.D. 267 (N.D.Ohio 2008); Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa.2007); Mitchell-Tracey v. United Gen. Title Ins. Co. & First Am. Title Ins. Co., 237 F.R.D. 551 (D.Md.2006); Alberton v. Commonwealth Land Title Ins. Co., 247 F.R.D. 469 (E.D.Pa.2008). According to Plaintiff, “the operative Class is comprised of far more than 360,000 homeowners, located throughout a five state region of Idaho, Oregon, Washington, Arizona and New Mexico”. This number of class members is sufficient to satisfy the numerosity requirement of Rule 23(a).

3. Commonality

A class has sufficient commonality if “there are questions of fact and law common to the class.” Fed.R.Civ.P. 23(a)(2). The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1015 (9th Cir.1998); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). In fact, in this Circuit, Rule 23(a)(2) is construed “permissively.” See id. Likewise, all questions of fact and law need not be common to satisfy the rule. Id. In other words, to establish commonality under Rule 23(a)(2), “[t]he existence of shared legal issues with dive rgent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies.” Hanlon, 150 F.3d at 1019. “The test or standard for meeting the Rule 23(a)(2) prerequisite [of commonality] is qualitative rather than quantitative; that is, there need be only a single issue common to all members of the class.” Newburg on Class Actions § 3:10.

“Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest” or “threat of injury” ... [that] is “real and immediate,” not “conjectural” or “hypothetical.”’ Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir.1988) (quoting O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).

Here, Plaintiffs complaint alleges a single scheme that affected each member of the class by impermissibly charging class members a standard premium rate, when a discount rate should have been assessed. Plaintiffs claim is about Defendant’s systemic policies as applied to all customers, not specific circumstances unique to any single customer. This establishes commonality under the permissive standard of Rule 23(a)(2).

4. Typicality

As the Supreme Court explained,

The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.

General Telephone v. Falcon, 457 U.S. 147 at 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The previous prerequisites of Rule 23 focused on the characteristics of the class. Rules Advisory Committee Notes, 39 Federal Rule Decisions 69, 100 (1966). Typicality and adequacy of representation, however, focus on the characteristics of the individual class representatives. Id. In that respect, typicality also overlaps with the adequacy of representation requirement under Rule 23(a)(4).

The typicality prerequisite of Rule 23(a)(3) is fulfilled if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Gen. Tel. Co. Of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). “The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs’ claims.” Id. The typicality prerequisite “emphasizes that the [class] representatives ought to be squarely aligned in interests with the represented group.” Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 81 Harv. L.Rev. 356, 387 n. 120 (1967). “The test of typicality is whether other members have the same or similar injury whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992).

Here, Plaintiff argues that her claim and the general claim of the class members are the same; all class members allege that they are victims of Defendant’s failure to adhere to the applicable price manual, and thus Defendant overcharged all the class members in their refinance transactions. Defendant counters, however, that because each class member’s ability to qualify for the discount rate “var[ies] from state to state and transaction to transaction,” typicality is not present. Defendant’s argument raises the potential of certifying a class consisting only of Idaho plaintiffs should typicality not be found due to the variations in state law, though Defendant objects to class certification in Idaho as well.

Plaintiff can satisfy her burden of showing typicality through pleadings, affidavits or through evidence presented in a class certification hearing. Here, Plaintiff has presented, among other things, various reports, copies of relevant state statutes, interrogatories, deposition transcripts, a declaration of Plaintiff, a sample of HUD-1 forms from absent class member states, and Plaintiffs HUD-1 form.⁷ Plaintiff has presented sufficient evidence to make her allegations of typicality clear.

Plaintiff alleges to have been adversely affected by the same policies, practices and procedures as the absent class members. Plaintiff asserts injuries in the same general manner as would all other class members. Plaintiff further points out that this proposed class definition is qualitatively identical to several other class actions that have been granted certification. Notably, however, Plaintiff cannot point to a multi-state class that has been certified under a similar claim.

After carefully considering all for the foregoing, the briefs of the parties, the evidence on record, and oral arguments of counsel, the undersigned finds, and thus concludes, that the multistate nature of the proposed class makes the putative class unsuitable for certification. While Plaintiffs alleged harm is factually similar to those alleged harms of the putative class, the undersigned finds, and thus concludes, that there are materially different legal standards of liability among the five jurisdictions that make Plaintiffs claims atypical of those same claims of class members in other states. For instance, Plaintiffs legal claims would be evaluated under different legal standards than putative class members outside Idaho. The varying standards and law existing over the five class states seriously impairs Plaintiffs ability to present generalized proof in support of the claims of all of the putative class members. Accordingly, Plaintiffs claims are not typical of the claims of the putative class existing outside Idaho. See General Tele. Co. Of Southwest, 457 U.S. at 158,102 S.Ct. 2364.

However, pursuant to Rule 23(c)(4), [w]hen appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class and the provisions of this rule shall be construed and applied accordingly.

Fed.R.Civ.P. 23(c)(4) (emphasis added). Consequently, the Court may redefine a proposed class in such a way as to meet class action requirements. Newburg on Class Actions, § 7:33 n. 8 (citing Gardebring v. Jenkins, 485 U.S. 415, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988)). Because this case involves a challenge to the allegedly common policies, practices and procedures which are said to have similarly caused all putative class members to be overcharged for a title insurance premium from Defendant, differences concerning the varied conditions needed to qualify for a discount rate solely in the state of Idaho is of no consequence. Put another way, like Plaintiff, each Idaho class member would contend a loss as a result of Defendant’s alleged failure to adhere to Idaho published rate manual and each Idaho class member would pursue the same interest in general damages and a modification in the challenged practices. Accordingly, with regard to a subclass of Idaho plaintiffs only, the typicality standard has been met.

5. Adequacy of Representation

The final requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them. Hanlon, 150 F.3d at 1020. Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members; and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978).

Defendant has not raised any conflicts of interest, and does not assert that counsel for the named plaintiff will not vigorously prosecute the case. However, Defendant does argue that Plaintiffs claims are “subject to a unique defense,” and that Plaintiff lacks sufficient knowledge, understanding and control over defense counsel to serve as an adequate representative of the class. Defendant’s Opposition to Class Certification, pp. 26-29 (Docket No. 53). With regard to the unique defense, Defendant argues that, unlike customers in the other four states under consideration, because Defendant’s customers in Idaho must present evidence of an earlier policy to qualify for a discounted refinance rate, Plaintiff and Idaho class members are subject to a unique defense. Id.

“It is well established that when a putative representative may be subject to unique defenses, the representative cannot establish typicality and class certification must be denied.” Joseph M. McLaughlin, McLaughlin on Class Actions, § 4:18 (3d ed.2008). “A proposed class representative is neither typical nor adequate if the representative is subject to a unique defense that is likely to become a major focus of the litigation.” Beck v. Maximus, Inc., 457 F.3d 291, 301 (3rd Cir.2006). When the class representative is subject to unique defenses, “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” In re WorldCom Inc., 358 B.R. 585, 603 (Bankr. S.D.N.Y.2006) (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). “The mere fact that a putative class representative, whose claims arise from the same course of events and are based upon the same legal theory as the other members of the proposed class, is subject to a unique defense does not render her atypical for purposes of class action certification unless that defense threatens to become the focus of litigation thereby prejudicing the absent class members.” Swack v. Credit Suisse First Boston, 230 F.R.D. 250 (D.Mass.2005). Finally, Defendant “need not show at the certification stage that the unique defense will prevail, only that it is meritorious enough to require the plaintiff to devote considerable time to rebut the unique defense.” Landry v. Price Waterhouse Chartered Accountants, 123 F.R.D. 474, 476 (S.D.N.Y.1989).

Previously, the undersigned found that the typicality requirement was met only by the sub-class of Idaho plaintiffs. As such, the unique defense argument proffered by Defendant is moot. Accordingly, Plaintiff is not inadequate because of any unique defense.

Defendant also asserts that Plaintiff Lewis is wholly inadequate to serve as the class representative because she is “ignorant of the nature of the action, the facts alleged and the theories of relief against the defendant.” Defendant’s Opposition to Class Certification, p. 27-28 (Docket No. 53) (quoting Bodner v. Oreck Direct, LLC, No. C 06-4756-MHP, 2007 WL 1223777, *2 (N.D.Cal. April 25, 2007)). Specifically, Defendant argues that Lewis is inadequate for four reasons: (1) she has no involvement in the case; (2) she has no control over the case; (3) she has no understanding of the underlying action; and (4) she lacks the basic knowledge of the underlying facts and theories of relief. Defendant’s Opposition to Class Certification, p. 28 (Docket No. 53). In other words, Defendant is asserting that because of Plaintiff Lewis’s ignorance, she would be unable to aid her attorneys, and the suit is, in reality, her lawyer’s lawsuit.

This issue has been addressed, and largely settled, by the Supreme Court:

The basic purpose of the Federal Rules is to administer justice though fair trials, not through summary dismissals as necessary as they may be on occasion. These rules were designed in large part to get away from some of the old procedural booby traps, which common-law pleaders could set to prevent unsophisticated litigants from ever having their day in court. If rules of procedure work as they should in an honest and fair judicial system they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits.

Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 372-73, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966). A review of Plaintiff Lewis’s deposition reveals that she has an adequate understanding of this litigation, the facts that gave rise to the underlying action and a clear idea of her expectations of resolution. This is sufficient to establish the minimal adequacy of representation requirement. See Rivera v. Fair Chevrolet Geo Partnership, 165 F.R.D. 361 (D.Conn.1996) (Plaintiff automobile buyer was adequate despite the fact that his deposition demonstrated that his understanding of the case was sketchy); In re Catfish Antitrust Litigation, 826 F.Supp. 1019, 1037-38 (N.D.Miss., 1993) (“This court is aware of the popular criticism and perception of class action litigation as being a lifeline for legal fees rather than a judicially feasible approach to vindicate multiple wrongs. Regardless of whether such criticism is fact or myth, it goes without saying that the client’s interest is first and foremost in the advocacy of this case and in every case.”).

C. Requirements under Rule 23(b)

In addition to meeting the conditions imposed by Rule 23(a), the party seeking class certification must also show that the action is maintainable under Fed.R.Civ.P. 23(b)(1), (2) or (3). Hanlon, 150 F.3d at 1022. In this case, the plaintiff seeks certification pursuant to Rule 23(b)(3) and Rule 23(b)(2).

1. Rule 23(b)(2)-Injunctive Relief

Rule 23(b)(2) authorizes class certification when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). “This rule applies when the putative class seeks injunctive or declaratory relief, and does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295, 300 (E.D.Pa.2007) (citations omitted).

At oral argument, Plaintiff conceded that her claim was monetary in nature, and withdrew her request for class certification under Rule 23(b)(2).

2. Rule 23(b)(3)-Damages Class

Certification under Rule 23(b)(3) is appropriate for Plaintiffs unjust enrichment claim and requires that common questions “predominate over any questions affecting only individual members,” and that the class resolution must be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 608, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In evaluating a proposed Rule 23(b)(3) class, the court must determine if a class action is the best or fairest way of adjudicating the class claims. Initially, the court must consider what other procedures exist for disposing of the litigation and then evaluate the relevant alternatives to determine if class certification is the most efficient and comprehensive means of managing the controversy.

This analysis presumes the existence of common issues of fact or law; however, the presence of commonality alone is not sufficient to fulfill Rule 23(b)(3). Hanlon, 150 F.3d at 1022. Rule 23(b)(3) focuses on the relationship between the common and individual issues. Id. In other words, Rule 23(b)(3) classes require that “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members____” Rule Advisory Committee Notes to 1966 Amendments to Rule 23, 39 Federal Rule Decisions, pp. 69,102-103. “The predominance test expressly directs the court to make a comparison between the common and individual questions involved in order to reach a determination of such predominance of common questions in a class action context.” Newberg § 4:24.

Predominance is determined not by counting the number of common issues, but by weighing their significance. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 627 (5th Cir.1999). “Where, after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, such claims are not suitable for class certification under Rule 23(b)(3).” Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.2004). When examining (b)(3), the court looks to four factors: “(1) the interest of individual members of the class in individually controlling the prosecution of the action; (2) the extent of litigation commenced elsewhere by class members; (3) the desirability of concentrating claims in a given forum; and (4) the management difficulties likely to be encountered in pursuing the class action.” F.R. Civ. P. 23(b)(3).

Defendant claims that individual issues of liability will predominate over common class issues. Defendant’s Opposition to Class Certification, p. 29-34 (Docket No. 53). Accordingly, Defendant argues that maintenance of the class action pursuant to 23(b)(3) is inappropriate because the Plaintiffs’ unjust enrichment claims would require individualized inquiries into Defendant’s legal and contractual relationship with each class member, and these individual inquiries would predominate over common questions of law and fact. Id,

Plaintiff responds that Defendant is misconstruing the law and facts of the underlying claims. Plaintiffs Reply in Support of Class Certification, p. 21-22 (Docket No. 63). Plaintiff contends that “even if individualized file reviews [are] necessary in this case, such circumstances are no bar to certification”. Id. Plaintiff cites a number of single-state class actions that have rejected Defendant’s contention that the requirements of 23(b)(3) are not met because of the unwieldy nature of discovery. Id. at 22-23 (quoting Slapikas, 250 F.R.D. at 250) (“While it may be true that each file must be reviewed on individually, under plaintiff’s theory, this will be a virtually automatic process that looks only at whether the customer received a discounted rate.”).

A district court “should not assess any aspect of the merits unrelated to a Rule 23 requirement.” In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir.2006). However, the undersigned “must consider evidence which goes to the requirements of Rule 23 at the class certification stage even if the evidence may also relate to the underlying merits of the case.” Dukes v. Wal-Mart, 509 F.3d 1168, 1178, n. 2 (9th Cir.2007). The Court’s analysis of each Rule 23 element must be “rigorous,” and a refusal to conduct that examination because it overlaps with the merits “would [be] error.” Id.

Without commenting on the merits of the case, the undersigned recognizes that there are several legal issues would that best be determined on a class-wide basis. For instance, at the merits stage of the class action, the Court will have to determine what constitutes “evidence of a prior policy” and what is meant by “when evidence of the prior policy is produced.” See Slapikas v. First American Title Ins. Co., 250 F.R.D. 232, 244 (W.D.Pa.2008). Additionally, as in Slapikas, “the court would need to determine whether the purchaser has the burden of producing evidence of a prior policy or if information produced as a result of the title examination or during the settlement process satisfies the evidentiary requirements of the Rate Manual.” Id.

Both parties agree that each potential class member’s claim is the same: if the putative member was eligible for the reissue rate but was wrongly charged a higher premium. The potential class shares the common issue of determining Defendant’s liability and each member’s eligibility for a claim, which predominate over any individual issues. Furthermore, because only class members in Idaho are being considered, the elements of unjust enrichment are the same for each potential class member.

Under Idaho law, “[t]he elements of unjust enrichment are that (1) a benefit is conferred on the defendant by the plaintiff; (2) the defendant appreciates the benefit; and (3) it would be inequitable for the defendant to accept the benefit without payment of the value of the benefit.” Teton Peaks Inv. Co. LLC v. Ohme, 146 Idaho 394, 195 P.3d 1207, 1211 (2008). “The essence of a quasi contractual obligation lies in the fact that defendant has received a benefit which it would be inequitable for him to retain.” Hixon v. Allphin, 76 Idaho 327, 333, 281 P.2d 1042, 1045 (1955).

This claim is common to all the putative class members. Any putative class members who were overcharged when they were entitled to a discounted rate would be in exactly the same position. According to Defendant, in Idaho, Defendant follows the same standard procedures, uses the same standard forms, and calculates the applicable rates in exactly the same way for each putative class member. Defendant apparently also interpreted the evidentiary provisions of the Rate Manual in the same way. A determination whether an overcharge by First American is “unjust” is common to all putative class members and appropriate for class treatment.

Finally, the undersigned finds, and thus concludes, that a class resolution is “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). This determination “necessarily involves [comparing a class resolution with] alternative mechanisms of dispute resolution” such as “individual claims.” Hanlon, 150 F.3d at 1023. If this action was not certified as a class, each individual plaintiff would have to establish the same elements on an individual basis. This repetitive process would “unnecessarily burden the judiciary.” Id. Furthermore, “it would be folly to force each to prove the nucleus of the alleged fraud again and again.” In re American Continental Corp./Lincoln Savings & Loan Secmities Litig., 140 F.R.D. 425, 431 (D.Ariz.1992). As individuals, much of the putative class would not have the resources to pursue litigation or may not even be aware of their claims against Defendant. Accordingly, a class resolution is superior to the alternatives under Rule 23(b)(3).

CONCLUSION

In summary, the proposed class meets the requirements of subsections (a) and (b)(3) of Rule 23 over putative Idaho class members. Accordingly, if the District Court adopts these recommendations class certification will be granted as to Plaintiffs unjust enrichment claims against Defendant only in the State of Idaho.

IV. RECOMMENDATION

Based upon the FOREGOING, it is hereby RECOMMENDED that the District Court enter an Order consistent with the following:

1. That Plaintiffs’ Motion to Certify Class and to Approve Notice (Docket No. 50) be GRANTED as follows:

A. The Court will certify a class defined as: All persons in the state of Idaho who, in connection with a mortgage refinancing transaction: (a) paid a premium for the purchase of residential title insurance from First American Title Ins. Co.; (b) had either an unsatisfied mortgage from an institutional lender or a deed to a bona fide purchaser in the chain of title within two years of the payment of the premium provided in the Title Insurance Rate manual in Idaho; and (c) did not receive the discount specified in the Manual;

B. The Court will deny class certification over all other Plaintiffs;

C. The Court will also appoint as lead plaintiff, Deborah Lewis of Nampa, Canyon County, Idaho; and

C. The Court will appoint Benjamin A. Sehwartzman, of Bandueci, Woodard, Sehwartzman, PLLC, Paul M. Weiss, of Freed & Weiss, LLC, Richard J. Burke, of Richard J. Burke, LLC, and Carl P. Burke, individually, as class counsel.

Y. ORDER

Based upon the FOREGOING, it is hereby ORDERED that Defendant’s Motion to Strike Plaintiffs Evidence Submitted in Support of Class Certification is DENIED WITHOUT PREJUDICE.

1 . A HUD-l settlement statement is a document submitted to the U.S. Department of Housing and Urban Development as part of every mortgage. A HUD-1 settlement statement includes a complete accounting of the transactions related to the mortgage, including the purchase of title insurance.

2 . In Dukes, the Ninth Circuit had concluded that a full Daubert inquiry is not required at the class certification stage. See Dukes v. Wal-Mart Inc., 509 F.3d 1168, 1179 (9th Cir.2007). Dukes, however, cannot be relied on because of a pending en banc proceeding. Dukes v. Wal-Mart, Inc., 556 F.3d 919, 919 (9th Cir.2009).

3 . Lewis's reliance on Bell is misplaced because Bell does not directly decide whether the FRE apply in class certification proceedings; rather, this statement is dicta.

1 . See generally Ariz. Revised Statute Title 20, Idaho Code Title 41, N.M. Statute Chapters 59-59A, Or. Revised Statute Title 56, & Revised Code of Wash. Title 48 [hereinafter State Statutes ].

2 . Except those in Maricopa County, where the discounted rate applies only to "vacant or improved parcel[s], which is or will be used for a one to four family residence, condominium, townhouse or other similar property.” Id.

3 . In Coconino, Grahm, Greenlee, La Paz and Mojave Counties the discounted premium rate is 50%. Id. In Pima County, an extended coverage rate premium schedule is listed. Id.

4 . The New Mexico discount rate is as follows: 40% of the basic premium for refinancing an existing loan within two years; 45% of the basic premium for refinancing of an existing loan within three years, but not less than two years; 50% of the basic premium for refinancing of an existing loan within four years, but not less than three years; and 55% of the basic premium for refinancing of an existing loan within five years, but not less than four years. If the refinance takes place five years after the original loan, no discount rate applies. Id.

5 . This estimate excludes potential class members in the State of Oregon because, according to Plaintiff, Defendant has objected to a discovery request relating to policy number data. Accordingly, the undersigned takes notice that information of Defendant's practice in Oregon has not been made available to Plaintiff.

6 . In light of Defendant’s motion to strike (Docket No. 59), the undersigned considers this evidence with a certain degree of skepticism. However, as noted above, because of the early stage of the proceedings and the general lack of discovery, at this point, Plaintiff's evidence is sufficient.

7 . Defendant has filed a motion to strike Plaintiff’s summary of 112 HUD-1 settlement statements and a related review of 18 HUD-1 forms from Idaho, Washington, Oregon, New Mexico and Arizona. Defendant's Motion to Strike Evidence, p. 2 (Docket No. 59). For reasons set forth above, Defendant’s Motion to Strike Evidence is denied. See infra section IV.