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Gibson v. Credit Suisse AG

United States District Court, Ninth Circuit

August 16, 2013

CREDIT SUISSE AG, a Swiss corporation; CREDIT SUISSE SECURITIES (USA), LLC, a Delaware limited liability company, CREDIT SUISSE FIRST BOSTON, a Delaware limited liability corporation; CREDIT SUISSE CAYMAN ISLAND BRANCH, an entity of unknown type; CUSHMAN & WAKEFIELD, INC., a Delaware corporation and DOES 1 through 100 inclusive, Defendants.


RONALD E. BUSH, Magistrate Judge.

Now pending before the Court are the following motions: (1) Plaintiffs' Motion to Certify Class (Docket No. 286), and (2) Defendant Cushman and Wakefield, Inc.'s Motion to Exclude the Expert Report and Related Testimony of Randall Bell (Docket No. 319). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the undersigned enters the following Report and Recommendation:


Plaintiffs purchased real property and homes in high-end, resort-style developments known as Lake Las Vegas, Tamarack, Ginn Sur Mer, and Yellowstone Club. This case has many moving parts; however, the general backdrop of Plaintiffs' claims relates to the manner in which Credit Suisse AG, Credit Suisse Securities (USA), LLC, Credit Suisse First Boston, and Credit Suisse Cayman Island Branch (collectively "Credit Suisse"), with appraisals prepared by Cushman & Wakefield, Inc. ("Cushman & Wakefield), marketed and implemented financing for each of the above-referenced developments.

Specifically, Plaintiffs allege that Credit Suisse masterminded a scheme - made possible by Cushman & Wakefield's creative, yet allegedly unlawful, Total Net Value ("TNV") appraisal methodology - to (1) induce the developers of these exclusive master-planned communities ("MPCs") to borrow huge sums of money through non-recourse loans from Credit Suisse, and (2) persuade these same developers to take out their equity in these developments, capitalizing on misleading future growth projections.

According to Plaintiffs, this deliberate strategy (which Plaintiffs refer to as the "Loan to Own" scheme) not only generated tens of millions of dollars in upfront "loan fees" for Credit Suisse, it also provided Credit Suisse with unfettered access to each MPC's confidential, proprietary, and key business information which, in turn, allowed Credit Suisse to assume lender advisory and "co-developer" roles within the MPCs. Once inside the door, Plaintiffs claim that Credit Suisse was then able to direct to the development of, and influence capital decisions for, the MPCs until the expected financial collapse of the developments under the weight of unsustainable debt.

Having "syndicated" its creditor status in the meantime and, thus, allegedly transacting away the inevitable financial consequences of default, Plaintiffs further contend that Credit Suisse intentionally positioned itself to take over the MPCs as a result of the subsequent, but nonetheless anticipated, bankruptcy and/or receivership proceedings - the apparent genesis of Plaintiffs' "Loan to Own" phraseology.

As property owners within these allegedly doomed-from-the-beginning MPCs, Plaintiffs claim that it was the deliberate, unorthodox manner in which Defendants created, marketed, implemented, managed, and controlled massive loan amounts that ultimately prevented the developers (at each of the four MPCs) from constructing and/or maintaining promised common area amenities that, naturally, make up the resorts themselves. To this end, Plaintiffs accuse Defendants of engaging in predatory lending practices and, pursuant to FRCP 23, move "to certify for class action treatment the claims for tortious interference with Plaintiffs' existing vested property and contractual rights, involving amenities and facilities, and for negligent harm to the same, as set forth in the Third Amended Complaint."[1] See Mem. in Supp. of Class Cert., p. 1 (Docket No. 286, Att. 1).


A court's decision to certify a class is discretionary, with FRCP 23 guiding the court's exercise of that discretion. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009). A plaintiff bears the burden of demonstrating each of the four requirements of FRCP 23(a) and at least one of the three requirements of FRCP 23(b). See Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007).

FRCP 23(a) requires a plaintiff to demonstrate (1) that the proposed class is sufficiently numerous, (2) that it presents common issues of fact or law, (3) that it will be led by one or more class representatives with claims typical of the class, and (4) that the class representatives will adequately represent the class. See Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 161 (1982); see also Fed.R.Civ.P. 23(a)(1)-(4). If a plaintiff satisfies the FRCP 23(a) requirements, he must also show that the proposed class action meets one of the three requirements of FRCP 23(b). See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Here, Plaintiffs invoke only FRCP 23(b)(3) which requires them to show that "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).

FRCP 23 is not a "mere pleading standard"; instead, it places an evidentiary burden on a plaintiff who hopes to represent a class. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) ("A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc."). To satisfy that burden, the court must conduct a "rigorous analysis" that may involve the merits of plaintiff's underlying claims. See id. at 2551-52 ("Frequently, that rigorous analysis' will entail some overlap with the merits of plaintiff's underlying claim. That cannot be helped. [T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'") (quoting Falcon, 457 U.S. at 160). Any overlap, however, must be no more extensive than necessary to ensure that the plaintiff has satisfied FRCP 23's prerequisites. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1195 (2013) ("Merits questions may be considered to the extent - but only to the extent - that they are relevant to determining whether the [FRCP 23] prerequisites for class certification are satisfied.").

While Plaintiffs originally sought to certify one class of post-2004 homebuyers at the four MPCs ( see Pls.' Third Am. Compl., ¶ 47 (Docket No. 129)), they now request certification of four separate subclasses (one for each MPC) of all "persons or entities" who acquired, for consideration, any "interest, entitlement, or privilege for the access, utilization or benefit of any facility...[, ] club membership or recognized amenity" in one of the MPCs and whose "facility, club membership or amenity became impaired, reduced, discontinued or deleteriously impacted." See Mem. in Supp. of Class Cert., pp. 7-8 (Docket No. 286, Att. 1). Plaintiffs contend that this defined "Class" (comprised of the four subclasses) satisfies the requirements of FRCP 23. See id. at p. 8. Cushman & Wakefield and Credit Suisse disagree, arguing that Plaintiffs' failure to satisfy (1) FRCP 23(a)'s requirements of commonality, typicality, and adequacy of representation, [2] as well as (2) FRCP 23(b)'s predominance and superiority requirements, renders certification improper. See Cushman & Wakefield's Opp. to Class Cert., p. 8 (Docket No. 318); Credit Suisse's Opp. to Class Cert., p. 3 (Docket No. 320).

A. FRCP 23(a)(2): Commonality

A class has sufficient commonality if "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). Although FRCP 23(a)(2)'s commonality requirement is "less rigorous" than the companion requirements of FRCP 23(b)(3) ( see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)), it does not merely mean any question underlying all class members' claims. See Wal-Mart, 131 S.Ct. at 2551 ("Any competently crafted class complaint literally raises common questions.') (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 131-32 (2009)). Instead, "[w]hat matters to class certification... is not the raising of common questions' - even in droves - but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.'" Id. (quoting Nagareda, supra, at 132) (emphasis in original). Still, "[t]he test or standard for meeting the [FRCP] 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.'" Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 555 (D. Idaho 2010) (quoting Newberg on Class Actions § 3:10). Thus, FRCP 23(a)(2)'s commonality requirement requires that all class members' claims "depend upon a common contention, " and that the common contention be "capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart, 131 S.Ct. at 2551.

Here, Plaintiffs' Third Amended Complaint alleges that, relative to each MPC, class members were promised a specified set of amenities, but that Defendants' Loan to Own Scheme ultimately contributed to these MPCs' ruin and, as a result, led to the diminishment, retrenchment, and wholesale elimination of the contracted-for amenities. In other words, whether the MPCs were deprived of the promised amenities and whether such deprivations were a function of the alleged Loan to Own scheme represent a set of common questions whose answers are "apt to drive" a classwide resolution of Plaintiffs' claims. Whatever dissimilarities may exist between the class members (and there are several, as pointed out by Cushman & Wakefield ( see Cushman & Wakefield's Opp. to Class Cert., pp. 18-19 (Docket No. 318), that are of notable concern ( see infra )), they do not operate to foreclose the existence of a nonetheless common contention, the answer to which may resolve integral components of Plaintiffs' tortious interference with contract and negligence claims. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) ("The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.") (citing Hanlon, 150 F.3d at 1019); Ginsburg v. Comcast Cable Commc'ns Mgmt. LLC, 2013 WL 1661483, *5 (W.D. Wash. 2013) ("Where a plaintiff identifies at least one common question, differences between class members' claims are not relevant to the commonality inquiry."); but see Wal-Mart, 131 S.Ct. at 2551 ("Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.'") (quoting Nagareda, supra, at 132).

Therefore, these considerations establish commonality under the permissive standard of FRCP 23(a)(2). See Hanlon, 150 F.3d at 1019 ("[FRCP] 23(a)(2) has been construed permissively.").

B. FRCP 23(a)(3): Typicality

To demonstrate typicality, Plaintiffs must show 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). As the United States Supreme Court explained:

The commonality and typicality requirements of [FRCP] 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 plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected.

Falcon, 457 U.S. at 157, n.13. "Typicality refers to the nature of the claim or defense of the class representative[s], and not to the specific facts from which it arose or the relief sought.'" Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Weinberger v. Thornton, 114 F.R.D. 599, 603 (S.D. Cal. 1986). "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 course of conduct.'" Id. (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). In short, although they need not be substantially identical, representative claims are typical if they are "reasonably co-extensive with those of absent class members." Hanlon, 150 F.3d at 1020.

Here, Plaintiffs argue that, as class representatives, their claims rely upon an "identical fact pattern, " alongside the "exact same legal theories" as those advanced by members of the Class. See Mem. in Supp. of Class Cert., p. 12 (Docket No. 286, Att. 1). In particular, Plaintiffs assert that (1) their tortious interference with contract and negligence claims are both premised upon a single course of conduct: Defendants' alleged Loan to Own scheme; and that (2) Plaintiffs and Class members have suffered the same injury: loss of promised amenities associated with property ownership at their respective MPC. See id. In response, Defendants do not challenge the overall similarities between Plaintiffs' claims and those of the rest of the Class; rather, on the issue of typicality, Defendants imply that Plaintiffs are subject to unique defenses that threaten to become the focus of the litigation. See Credit Suisse's Opp. to Class Cert., p. 12 (Docket No. 320) (citing Hanon, 976 F.2d at 508).

As to Defendants' retort, it is true that courts have held that class certification is inappropriate if "there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.'" Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2nd Cir. 1990)). However, to the extent Defendants offer such a reason as a stand-alone basis for rejecting Plaintiffs' class certification efforts (on typicality grounds), it is overstated. But see infra.

Of the named Plaintiffs - L.J. Gibson, Beau Blixseth, Mark Mushkin, Amy Koenig, Judy Land, Monique LaFleur, Griffen Development, Charles Dominguez, and Vern Jennings - Credit Suisse points only to Messrs. Blixseth and Mushkin as being exposed to unique defenses not shared by other members in the Class - Mr. Blixseth's standing to bring his claim; and Mr. Mushkin's prior knowledge/assumption of the risk, along with potential res judicata defenses. See Credit Suisse's Opp. to Class Cert., pp. 12-17 (Docket No. 320).[3] There is no question that such defenses may not exist as to other Class members' claims and, therefore, are naturally unique to both Mr. Blixseth and Mr. Mushkin. Still, the question is not whether defenses specific to the representative parties exist at all in the abstract (surely many class certification proceedings yield a litany of defenses particular to represented parties if examined long and hard enough via class certification fact discovery); instead, the appropriate inquiry toward addressing the typicality prerequisite is whether a "major focus" of the litigation will be on those defenses. See Hanon, 976 F.2d at 509. Regardless of the above-stated defenses' merits, the undersigned is not convinced that their resolution through the course of this action will significantly prejudice other Class members' claims moving forward when understanding that, despite such defenses, (1) Plaintiffs consistently allege to have been adversely affected by the same conduct as the putative class, (2) Plaintiffs assert injuries in the same general manner as would all other class members ( but see infra ), and (3) the legal standards applicable to Plaintiffs' tortious interference with contract and negligence claims are not materially different across the jurisdictions applicable for each MPC.

With all this in mind, and recognizing that the representative parties comprise persons from each MPC, the representative claims are sufficiently typical to pass muster under FRCP 23(a)(3).

C. FRCP 23(a)(4): Adequacy of Representation

"Requiring the claims of the class representatives to be adequately representative of the class as a whole ensures that the interest of absent class members are adequately protected." Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). Under FRCP 23(a)(4), Plaintiffs must establish that they "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. See Lewis, 265 F.R.D. at 557 (citing 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? See id. (citing Hanlon, 150 F.3d at 1020).

Responding to Plaintiffs' blanket and conclusory assertions that they "possess no interests antagonistic to those of any class member" and that they "have a basic understanding of the case and their roles in its prosecution, specifically including the responsibility to vigorously prosecute the litigation" ( see Mem. in Supp. of Class Cert., pp. 12-13 (Docket No. 186, Att. 1)), Defendants counter that, in fact, each Plaintiff is not an adequate representative of the Class, owing to their own conflicts of interest, contributory responsibility, and/or contradictory testimony inconsistent with the pleadings. See, e.g., Credit Suisse's Opp. to Class Cert., pp. 12-17 (Docket No. 320). Each of the Defendants' criticisms in these respects is addressed below.

• L.J. Gibson: Credit Suisse points out that, because Ms. Gibson is married to and purchased properties with James Sabalos (one of the attorneys originally involved in initiating this action), she has "financial motivations not shared by other class members" - a conflict of interest preventing her from adequately representing the Tamarack, Lake Las Vegas, and Ginn Sur Mer subclasses. See id. at pp. 12-13. But Mr. Sabalos is not seeking to serve as Class counsel. See 12/5/12 Notice of Change of Status of James C. Sabalos (Docket No. 307).[4] Even so, Credit Suisse argues that Gibson may still be "more concerned about her husband's attorneys' fees rather than the best interests of the class." See Credit Suisse's Opp. to Class Cert., p. 13, n.7 (Docket No. 320). However, such a possibility, without more, does not rise to the level of a conflict of interest between Ms. Gibson and other Class members and, thus, it cannot be said that she will not fairly and adequately protect the interests of the Class.[5]

• Beau Blixseth: Credit Suisse contends that Mr. Blixseth, the sole representative of the Yellowstone Club subclass, cannot adequately represent the interests of the Class in large part due to his relationship with Tim Blixseth:

Beau Blixseth cannot adequately represent the class because he is the son of the Yellowstone [Club] developer, Tim Blixseth, who was also the co-owner of the property-owning LLCs; Tim's failure to make the payments on the underlying mortgages, as agreed with Beau, led to the foreclosure on and loss of the two properties. Tim also financed Beau's earlier purchase, by Beau's Red Rock Development LLC, of a building lot at Yellowstone [Club], and later forgave the $1.5 million debt. Beau almost certainly would refuse to assign any blame to his father - the principal of the developer that built the amenities - for homeowners' amenity-related losses.

See id. at p. 14 (internal citations omitted). Such arguments constitute legitimate reasons for precluding Mr. Blixseth from representing the Class.

First, had Tim Blixseth sought to represent the Class as the Yellowstone Club subclass's representative, there would unquestionably be a problematic conflict of interest preventing him from doing so. While Mr. Blixseth is not his father, the connection between the two is undeniable - enough to preemptively taint Mr. Blixseth and prevent him from representing the interests of the Class, when considering Mr. Blixseth's understandable reluctance to consider the possibility that the Class members' recoverable damages, if any, were caused by "on the ground" entities more closely involved with the Yellowstone Club MPC, rather than Defendants. See, e.g., Blixseth Dep., attached as Ex. 30 to Guy Decl., at 257:19-23 (Docket No. 320, Att. 8) ("I would agree that what started the foreclosure process was the lack of payment of the interest. But I still go back to what I said earlier, which is, I believe that this happened because of the Credit Suisse loan.").

Second, as Credit Suisse also makes known, Mr. Blixseth "worked for and owned an interest in the developer and, therefore, arguably contributed to the harm allegedly suffered by the Class." See Credit Suisse's Opp. to Class Cert., p. 14 (Docket No. 320).[6] To the extent this argument differs from the one raised immediately above, it still gives rise to the same reason for concluding that Mr. Blixseth cannot adequately represent the Yellowstone subclass. Simply put, Mr. Blixseth is too directly connected to the development, ownership, and management of the Yellowstone Club MPC to maintain (or be perceived to maintain) an objective frame of mind concerning all of the factors that may have contributed to that subclass's damages. Lacking objectivity, Mr. Blixseth's ability to adequately represent the Yellowstone Club subclass is compromised.

• Mark Mushkin: In addition to suggesting the existence of certain defenses applicable to Mr. Mushkin (a representative of the Lake Las Vegas subclass) ( see supra ), Credit Suisse argues that he is not an adequate Class representative because "he considers himself superior in knowledge and experience to them." See id. at p. 14. Mr. Mushkin's professional backdrop, institutional knowledge, and experiences at Lake Las Vegas is without question, but they do not combine to reflect an inability to sufficiently represent the Class members' interests (and Credit Suisse supplies no authority suggesting otherwise).[7]

• Amy Koenig: Focusing on Ms. Koenig's (1) "work[ ] as the Vice President of Marketing at Tamarack, " (2) ownership of shares in the Tamarack resort, (3) access to confidential information, and (4) role in creating "fact sheets for salespeople to using in selling Tamarack properties and review[ing] press releases announcing Tamarack amenities, " Credit Suisse paints Ms. Koenig (a representative for the Tamarack subclass) as an "insider" who cannot adequately represent the Class. See id. at p. 15. For reasons similar to those impacting Mr. Blixseth's ability to represent the Yellowstone Club subclass, the undersigned agrees that Ms. Koenig is not an adequate representative for the Tamarack subclass.

The mere fact that Ms. Koenig is a Tamarack insider is not enough to prevent her from serving as a Class representative. See, e.g., Newberg on Class Actions § 22:40 ("Defendants in securities class actions have often asserted that a plaintiff who was an insider or tippee at the time of the alleged violation cannot adequately represent the interests of other purchasers or sellers. Most courts have rejected this argument, holding that insider status does not in itself create a conflict of interest."). However, here, her professional responsibilities naturally would have fostered personal and professional relationships with Tamarack's development team (Tamarack's developer and former owner, Jean-Pierre Boespflug, actually walked Ms. Koenig down the aisle at her wedding), such that a risk exists that either of their potential liabilities may be disregarded in favor of focusing solely upon Defendants' alleged conduct. See, e.g., Reply in Supp. of Class Cert., p. 3 (Docket No. 332) ("The development of the amenities was an integral part of the "resort lifestyle" being sold and advertised by the developers. ") (emphasis added). The potential for such self-interested "tunnel vision" does not represent the best interests of the Tamarack subclass. Therefore, Ms. Koenig is not an adequate representative.

• Judy Land: Like Ms. Koenig, Credit Suisse tabs Ms. Land (a representative for the Tamarack subclass) as an insider, having worked in sales for the Tamarack resort's developer and made representations to prospective buyers. See Credit Suisse's Opp. to Class Cert., pp. 15-16 (Docket No. 320). For the same reasons expressed as to Ms. Koenig, Ms. Land's own involvement in property sales contributing to the claims involved in this action (and, hence, her own potential liability), renders her an inadequate representative for the Tamarack subclass.

• Monique LaFleur and Griffen Development, LLC: Credit Suisse argues that, because Ms. LaFleur (a representative for the Tamarack subclass) purchased (though limited liability entities rather than in her individual capacity) Tamarack properties as an investment, she and her development company (and now owner of several of Ms. LaFleur's Tamarack purchased properties), Griffen Development, LLC (another representative for the Tamarack subclass), are neither typical of, nor can they adequately represent, the "amenity-seeking homebuyer characterized in the Complaint." See Credit Suisse's Opp. to Class Cert., p. 16 (Docket No. 320). From the undersigned's perspective, any distinctions between these different purchasers (investors vs. actual homebuyers) are inconsequential on the issue of Ms. LaFleur's and/or Griffen Development, LLC's ability to adequately represent the Class - both purchasers in the context of this case are similarly injured when promised amenities are not made available.

Also, the fact that Ms. LaFleur may have testified during her deposition that she believed the money loaned to the Tamarack MPC developer could have been used to develop and maintain these amenities ( see id. ) is likewise unavailing. This is true because, consistent with the Third Amended Complaint, she is of the further belief that it was Credit Suisse's assumption of successor developer/lending advisor roles within Tamarack, coupled with its knowledge of Tamarack's financial underpinnings and subsequent control over Tamarack's decision-making, that actually contributed to the failure to develop and maintain the resort's many amenities - not the fact of the loan itself. Compare LaFleur Dep., attached as Ex. 28 to Guy Decl., at 216:2-17 (Docket No. 320, Att. 7) ("I believe that Credit Suisse mandated how the money was spent and where the money was to - where it was to go and at what rate that money was spent and how that money was to be utilized, and that it went beyond the scope of what Tamarack Resort, LLC was doing prior to Credit Suisse coming aboard as what I call a pseudo-partner I base that on facts that are items that are in this Third Amended Complaint to this proceeding that we're here; I base that on knowledge of how the management within Tamarack, LLC changed after the Credit Suisse loan came on board; I base that on the fact that it wasn't status quo once the Credit Suisse loan was brought aboard. There were other individuals, we'll say, driving the effort.") with TAC ¶¶ 174, 176, 181-82, & 184 (Docket No. 131). Thus, Ms. LaFleur's and Griffen Development, LLC's interests adequately align with those of other Class members.

• Charles Dominguez and Vern Jennings: Credit Suisse asserts that both Charles Dominguez (a representative for the Tamarack subclass) and Vern Jennings (a representative for the Lake Las Vegas subclass) cannot adequately serve as class representatives because, like Ms. LaFleur, they gave testimony that contradicted crucial allegations within the Third Amended Complaint - in particular, that they "did not believe that Credit Suisse engaged in a loan-to-own scheme." See Credit Suisse's Opp. to Class Cert., pp. 16-17 (Docket No. 320). It is certainly possible to construe certain isolated sentences from Messrs. Dominguez's and Jennings's respective depositions as suggesting their beliefs that Credit Suisse and/or Cushman & Wakefield are without blame. See, e.g., Dominguez Dep., attached as Ex. 22 to Guy Decl., at 219:17-23 (Docket No. 320, Att. 6); Jennings Dep., attached as Ex. 23 to Guy Decl., at 20:18-20 (Docket No. 320, Att. 6). However, in reality, these individuals do not know exactly what contributed to their applicable MPC having to face foreclosure proceedings, but, at the very least, suspect Credit Suisse's and Cushman & Wakefield's involvement to some extent. See, e.g., Dominguez Dep., attached as Ex. 22 to Guy Decl., at 220:19-23, 221:8-10 (Docket No. 320, Att. 6) ("So to answer your question, I know we're suing because of some wrongdoing on the finance side. I don't understand exactly what was done wrong I feel that possibly it was due partly to [the Cushman & Wakefield appraisals and Credit Suisse's loan]. But I don't know exactly how much."); Jennings Dep., attached as Ex. 23 to Guy Decl., at 20:22-21:7 (Docket No. 320, Att. 6) (responding "I don't know" to whether he believed that Credit Suisse issued loan with expectation that developers would default). Messrs. Dominguez and Jennings could be more familiar with the instant litigation, to be sure; however, any shortcomings in this respect should not be understood as an endorsement of Credit Suisse's and Cushman & Wakefield's defense to Plaintiffs' claims or that their failure to absolutely comprehend the extraordinarily complex nuances of this case renders them inadequate to represent the interests of the Class.[8], [9]

All told, named Plaintiffs Beau Blixseth, Amy Koenig, and Judy Land are not adequate Class representatives. FRCP 23(a)(4) is not satisfied in these three respects. Whatever "warts" may exist after examining the other named Plaintiffs' ability to adequately represent the Class, those perceived shortcomings do not mean ipso facto that they cannot do so on the pledged claims moving forward. Therefore, FRCP 23(a)(4) is satisfied as to L.J. Gibson, Mark Mushkin, Monique LaFleur, Griffen Development, LLC, Charles Dominguez, and Vern Jennings; they are adequate representatives of the Class.

D. FRCP 23(b)(3): Predominance

FRCP 23(b)(3)'s predominance analysis "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). Though akin to the commonality requirement of FRCP 23(a)(2) (indeed, FRCP 23's commonality and predominance requirements were frequently discussed in tandem within the parties' briefing and during oral argument), FRCP 23(b)(3)'s predominance inquiry already presumes the existence of common issues of fact or law; therefore, "the presence of commonality alone is not sufficient" to satisfy FRCP 23(b)(3). Hanlon, 150 F.3d at 1022; see also Amchem, 521 U.S. at 624 (stating that predominance analysis under FRCP 23(b)(3) is "far more demanding" than commonality requirement); see also Ginsburg, 2013 WL 1661483 at *5 (unlike FRCP 23(a)(2)'s commonality requirement, "[i]n determining whether common issues predominate in accordance with [FRCP] 23(b)(3), ... differences among class members' claims are crucial."). In contrast to FRCP 23(a)(2), FRCP 23(b)(3) focuses on the relationship between the common and individual issues, requiring that the court find "that the questions common to the class predominate over the questions affecting individual members." Fed.R.Civ.P. 23, Adv. Comm. Notes (1966 Amendments); see also Newberg on Class Actions § 4:49 ("Predominance therefore asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual cases.").

Similar to their arguments in favor of finding commonality under FRCP 23(a)(2), Plaintiffs state that "this litigation contains core common issues, which overwhelmingly predominate all of its aspects, " arguing further that:

[e]very Class member is suing on a single set of facts (per subclass) to support two different causes of action: tortious interference and negligence, as well as proof of causation and damage. The "common nucleus of facts" deals with Plaintiffs' fundamental contention that Defendants devised and orchestrated a common scheme or course of conduct - the Loan-to-Own scheme - which intentionally or negligently caused the MPCs to diminish or eliminate promised amenities and facilities, thereby damaging each and every MPC property owner in the same exact manner.

Mem. in Supp. of Class Cert., p. 14 (Docket No. 286, Att. 1); compare with id. at pp. 10-11 (discussing FRCP 23(a)(2)'s commonality prong). Relatedly, Plaintiffs go on to declare in no uncertain terms that:

• "There are no individual issues which bear on Defendants' liability."
• "The only individual issue that may exist is the amount of damages suffered by each Class member."
• "All Class members will rely on the same testimony and documentary evidence to establish the elements of the Loan-to-Own scheme and show that it caused their claimed loss of amenities or facilities."
• "[A]ll C]lass members will rely on the same expert testimony to show the measurable extent to which Defendants' conduct caused the MPCs to fail and thus deprive Plaintiffs of the compensable value of their guaranteed amenities and facilities."
• "[V]irtually all issues with respect to the Class claims are subject to common proof."
• "[T]his case does not involve significant individual issues, as all of the Class members were exposed to the same conduct and claim the same resulting injury."
• "In sum, Defendants' wrongful actions produced indistinguishable claims for all Class members, which are perfectly suited for representative determination. Shared issues and testimony will resolve nearly all questions for this matter for every Class member and with respect to the only aspect of the litigation implicating marginally individualized damage questions."

Id. at pp. 15-17. Defendants dispute these contentions as amounting to nothing more than vague abstractions, devoid of any specific evidentiary detail sustaining Plaintiffs' underlying causes of action; namely, the absence of common proof speaking to (1) the actual contracts underlying Plaintiffs' tortious interference with contract claim, and (2) the causal connection between Defendants' conduct and the Class members' injuries supporting Plaintiffs' tortious interference with contract and negligence claims. See Cushman & Wakefield's Opp. to Class Cert., p. 0 (Docket No. 318) (citing Klay v. Humana, inc., 382 F.3d 1241, 1255 (11th Cir. 2004) ("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 [FRCP] 23(b)(3).")). The undersigned agrees with Defendants.

1. Variations in the Contracts Defeat a Classwide Tortious Interference with Contract Claim

The parties do not dispute that, regardless of the jurisdictional law applied, the elements of a tortious interference with contract claim are (1) the existence of a contract; (2) knowledge of the contract on the part of the defendant; (3) intentional interference causing breach of the contract; and (4) injury to the plaintiff resulting from the breach. See Mem. in Supp. of Class Cert., pp. 5-6 (Docket No. 286, Att. 1). Throughout this action, Plaintiffs have repeatedly touted the similarity in contracts from one Class member to the next:

• "Plaintiffs and the Class had substantially uniform contracts with the developers of each MPC, which contracts provided for the construction and maintenance of the rights, amenities and privileges running with the lands alleged hereinabove and which were known to Defendants at all times relative hereto." Pls.' Third Am. Compl., 193 (Docket No. 129) (made in conjunction with Plaintiffs' tortious interference with contract claim);
• "In conjunction with their purchase or acquisition of property in one of the four MPCs, the Plaintiffs and all Putative Class members entered into contractual agreements pursuant to which the MPCs' developer promised to provide, maintain and/or develop certain amenities and facilities.... Although the specific amenities and features provided by each MPC differed in form, the contractual promises to provide each and every property owner with a specified set of amenities were substantially identical." Mem. in Supp. of Class Cert., p. 1 (Docket No. 286, Att. 1); and
• "[T]he contracts between all MPCs and their homeowners uniformly required the MPCs to provide certain amenities." Id. at p. 10.

Except, as Cushman & Wakefield argues, discovery to date reveals that these representations are not altogether true. To the contrary, the produced "contract" documents for each MPC (discussed below) are, in fact, materially not substantially uniform between Class members, according to Cushman & Wakefield. See Cushman & Wakefield Opp. to Class Cert., pp. 8-9 (Docket No. 318) (citing Jordan v. Paul Fin., LLC, 2009 WL 192888, *6 (N.D. Cal. 2009) ("The Court finds plaintiff's characterization of putative class members' loan documents as uniform does not accord with the evidence cited by defendants.")). As a result, Defendants claim that the differing, individual contractual interests between Class members (between and among subclasses) cut against a finding that common issues predominate.

For instance, at the Lake Las Vegas MPC, Plaintiffs' four purchase contracts were with four different seller, and only one of which was the developer. See Cushman & Wakefield Opp. to Class Cert., p. 10 (Docket No. 318); see also Exs. 1 & 3 to Abdollahi Decl. (Docket No. 318, Att. 2). Moreover, these contracts cannot be read to be uniform when understanding that:

• The Jennings' February 15, 2002 Purchase and Sale Agreement with the developer incorporated a "Disclosure Statement" that disclaimed any promises with respect to amenities other than constructing those specifically identified.[10] See Ex. 3 to Abdollahi Decl. (Docket No. 318, Att. 2) (citing Ex. 26 to Abdollahi Decl. (Docket No. 318, Att. 7)); see also Ex. 27 to Abdollahi Decl. (Docket No. 318, Att. 7) ("WE ARE NOT CONTRACTUALLY OBLIGATED TO YOU TO PROVIDE THE PROPOSED FACILITIES. THERE IS NO ASSURANCE THAT ANY OR ALL OF THE PROPOSED FACILITIES WILL BE DEVELOPED.") (capitalization in original);
• The Gibsons' November 19, 2002 Residential Purchase Agreement with a builder did not discuss amenities at all. See Ex. 3 to Abdollahi Decl. (Docket No. 318, Att. 2) (citing Ex. 14 to Abdollahi Decl. (Docket No. 318, Att. 4)). The Gibsons' June 26, 2004 and July 24, 2005 Purchase Agreements with other builders incorporated particular disclaimers regarding resort improvements. See Ex. 3 to Abdollahi Decl. (Docket No. 318, Att. 2) (citing Ex. 15 to Abdollahi Decl. (Docket No. 318, Att. 4)); and
• Mr. Mushkin had no contracts because each of his property purchases (between 2004 and 2009) were by "grant bargain" or "sale deeds" in lieu of foreclosure, or inheritance from a trust. See Pls.' 1/25/13 Notice, p. 3 (Docket No. 334); see also Pls.' Resp. to Defs.' Mot. to Enforce Ct. Order, pp. 13-14 (Docket No. 356).

At the Tamarack MPC, Plaintiffs' property purchases were likewise not all from the developer and, therefore, included different "Guaranteed Amenities, " if any at all. See Exs. 1 & 2 to Abdollahi Decl. (Docket No. 318, Att. 2) (citing Exs. 16-22 to Abdollahi Decl. (Docket No. 318, Atts. 4 & 5)). Additionally, Plaintiff Judy Land testified that, while working for/at Tamarack as its resale broker, she resold approximately 80 properties (necessarily, then, between parties other than the developer), the terms and conditions of which are currently unknown but, as Defendants imply, far from uniform. See Land Dep., attached as Ex. 11 to Abdollahi Decl., at 22:16-23:13, 25:13-17 (Docket No. 318, Att. 3).

At the Yellowstone Club MPC, each of Plaintiffs' three property purchases involved Plaintiff Beau Blixseth, but under different circumstances - only Red Rock Development LLC's July 13, 2006 property purchase involved the developer, while Mr. Blixseth's (jointly with his father, Tim Blixseth) two property purchases on June 30, 2008 involved resellers. See Ex. 1 to Abdollahi Decl. (Docket No. 318, Att. 2). As stated above, such contracts necessarily differed from one another. Still, to the extent Plaintiffs base their claim for guaranteed amenities at the Yellowstone Club on a membership agreement rather than purchase contracts between buyer and seller ( see Mem. in Supp. of Class Cert., p. 3 (Docket No. 286, Att. 1)), that agreement arguably disclaimed any perpetual or vested rights in amenities regardless. See Ex. 4 to Huntley Aff. (Docket No. 286, Att. 4).

Finally, at the Ginn Sur Mer MPC, only Plaintiff L.J. Gibson's and attorney James Sabalos's October 2, 2006 "Contract for Lot Purchase" has been submitted thus far. See Ex. 3 to Huntley Aff. (Docket No. 286, Att. 3). Notably, the "property report" dealing with the subdivision encompassing the lot purchase, warns that "NO ASSURANCES HAVE BEEN POSTED TO GUARANTEE THE PROMISED RECREATIONAL FACILITIES AND THERE IS NO GUARANTEE THAT THE RECREATIONAL FACILITIES WILL BE COMPLETED AS PROPOSED." See Ex. 32 to Abdollahi Decl. (Docket No. 318, Att. 9) (emphasis in original). Because no other Ginn Sur Mer-related purchase contracts are in the record, it is unknown whether Ms. Gibson's and Mr. Sabalos's purchase contract is uniform among the Ginn Sur Mer subclass.

The point here is not to address the substantive merits of the Class members' tortious interference with contract claim - that is immaterial at this point in the litigation and not the subject of this Report and Recommendation. Rather, regardless of the claim's viability, the undersigned agrees that the above-referenced differences in just a sample of the named Plaintiffs' underlying contracts making up the backbone of such a class-wide claim underscores the existence of individualized issues, central to the question of liability, that cannot be resolved using common proof.[11] Plaintiffs' arguments to the contrary are unconvincing when looking at the contracts themselves. See, e.g., Martinez v. Welk Group, Inc., 2012 WL 2888536, *4 (S.D. Cal. 2012) (finding no predominance, in part, because "[s]ome... owners have no contract... because they purchased their points on the resale market" and "[t]hose who do have contracts... do not all have the same contract...."); CLN Props., Inc. v. Republic Servs., Inc., 2010 WL 5146734, *3 (D. Ariz. 2010) (predominance not met when "the facts presented by the parties make clear that members of the class held a wide variety of contracts with Defendant, and some had no written contracts at all.").

Because an examination of the named Plaintiffs' contracts making up their tortious interference with contract claim does not adequately paint a consistent picture of the other property purchasers' contractual relationships at play at the various MPCs over time, the legal and factual questions common to the Class, significant as they may be ( see supra ), do not predominate over questions affecting only individual Class members' contract-based claims. Plaintiffs' repeated focus on the alleged illegality of Cushman & Wakefield's appraisals, part and parcel with Credit Suisse's alleged Loan to Own scheme, while no-doubt important to their case, does not override the individual contractual issues that present themselves here when litigating a class-wide tortious interference with contract claim. Predominance is therefore lacking and, as a result, Class certification should be denied on this basis.

2. Individual Issues Concerning Causation Defeat Class-Wide Tortious Interference with Contract and Negligence Claims

The parties also do not dispute that, as with claims for tortious interference with contract, negligence claims require a causal connection between the defendant's conduct and the plaintiff's resulting injuries. See Mem. in Supp. of Class Cert., p. 6 (Docket No. 286, Att. 1). Plaintiffs clearly understand this, acknowledging that "[a] major element of [their] claims is causation based on [Cushman & Wakefield's] illegal appraisals." Reply in Supp. of Class Cert., p. 5 (Docket No. 331). But Cushman & Wakefield argues that any proximate causation analysis cannot be applied to the Class as a whole using common proof given the presence of individualized factual issues particular to each Class member. See Cushman & Wakefield's Opp. to Class Cert., p. 13 (Docket No. 318) (citing Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 302 (5th Cir. 2003) ("[W]here fact of damage cannot be established for every class member through proof common to the class, the need to establish [ ] liability for individual class members defeats Rule 23(b)(3) predominance.")). According to Cushman & Wakefield, these individual issues defeat class-wide tortious interference with contract and negligence claims.

Plaintiffs take a broad approach toward addressing Cushman & Wakefield's concerns over causation, proclaiming in sweeping terms that the violative appraisals proximately caused the MPCs' bankruptcies which, in turn, caused a decrease in each MPC's value. See Reply in Supp. of Class Cert., p. 6 (Docket No. 331) (citing Bell Rpt., ¶ 124 (Docket No. 287, Att. 1)). While possibly helpful from a quantum of damages perspective, Plaintiffs' argument needs more unpacking when it comes to establishing the Class members' precedent, underlying fact of injury. Contrary to Plaintiffs apparent position on this point, "each class member's individual action would [ not ] rely on the same documents, depositions, discovery responses, and expert opinions to establish the elements of the claims." Id. at p. 8.

Recognizing that the Class is a diverse group, Cushman & Wakefield calls attention to the fact that the purported Class members purchased properties in different MPCs, at different times, in different market conditions, with different amenities, for different reasons, from different sellers, and with different contracts. See Cushman & Wakefield Opp. to Class Cert., p. 14 (Docket No. 318) (citing Buchalter Rpt. at ¶¶ 71-78 (Docket No. 318, Att. 11). While some may have purchased and resold their properties at a loss, others have not - some have resold at a profit, while still others have held on to their properties with no intention of selling. See id. According to Defendants, these realities emphasize the individual differences between Class members when looking to common proof of causation and, hence, predominance.

For example, at the Lake Las Vegas MPC, Cushman & Wakefield points to evidence that (1) of the over 4, 000 property ownership transactions between January 1993 and October 2012, less than half still maintain their properties and thus have an ongoing interest in amenities; (2) of those that no longer own property, 465 sold or transferred their interests before the Credit Suisse loan; and (3) 42% of owners who purchased property and sold after the Credit Suisse loan realized a net profit gain or broke even. See id. at pp. 14-15 (citing Buchalter Rpt. at ¶¶ 44-50 (Docket No. 318, Att. 11)). Yet, under Plaintiffs' proposed Class definition, former property owners would be grouped together with current owners, all supposedly having suffered the same type of injuries owing to Defendants' conduct. Such differences between Class members (at just one MPC even) reveal that an assessment of Defendant's conduct's impact upon the Class as a whole is only possible through individualized analysis, thus undermining a finding of predominance.

In addition, the responses to questionnaires that Plaintiffs' counsel sent to potential Class members about the cause of homeowner losses further indicate widely divergent ideas of impact and causation. Even though some responding homeowners blamed Defendants for their losses, others suggested Defendants caused no harm at all:

• "My house has increased in value. I am very happy here. No one ever misled me. I think all have been very fair. They all told me the truth. Please forward this to the court!
• P.S. I also invested $1.6 MM in Restaurant in Village. Lost it all due to Developer."
• "Credit Suisse happened I believe after my unit was foreclosed."
• "Was sold the dream that it would be a community, which never happened. Poor leadership was definitely the reason Lake Las Vegas got slaughtered."

Exs. 18-21 to Guy Decl. (Docket No. 320, Att. 5). Such examples are not offered to somehow prove that the Class suffered no damage as a result of Defendant's conduct, but, rather, that such damages, if any, involve individualized factual issues pertaining to their specific cause. See, e.g., Cushman & Wakefield's Opp. to Class Cert., p. 14 (Docket No. 318) ("Thus whether, and to what extent, Defendants' alleged conduct actually caused injury to Plaintiffs would vary per individual. This is distinct from the question of "amount" of damages - the question of impact; the "fact of damages, " is more fundamental to the class certification issue, particularly where, as here, it is apparent that many purported class members were not impacted at all.") (citing Gonzalez v. Comcast Corp., 2012 WL 10621, *18 (E.D. Cal. 2012) ("While determining that the amount of damages does not defeat the predominance inquiry, a proposed class action requiring the court to determine individualized fact of damages does not meet the predominance standards of Rule 23(b)(3).") (emphasis in original)); see also Martinez v. Welk Group, Inc., 2012 WL 2888536, *5 (S.D. Cal. 2012) (finding negligence claim unsuitable for class treatment because it depends "upon the peculiar circumstances and experiences of each class member."); Tourgeman v. Collins Fin. Servs., 2011 WL 5025152, *15 (S.D. Cal. 2011) ("[B]ecause causation must be adjudicated on a class member-by-class member basis, this individual issue threatens to swamp the common ones.").

As with the contractual issues discussed above, the fact that Plaintiffs may be able to present common proof relating to Cushman & Wakefield's appraisals in conjunction with Credit Suisse's alleged Loan to Own scheme is not enough to establish predominance when realizing that the more individualized, fact-specific determinations of causation (and, perhaps, any related affirmative defenses) speaking to the alleged Class-wide injuries overwhelm such common denominators. See Newberg on Class Actions § 4:50 ("Common questions do not predominate if a great deal of individualized proof would need to be introduced or a number of individualized legal points would need to be established after common questions were resolved. Nor do common questions predominate if, as a practical matter, the resolution of an overarching common issue breaks down into an unmanageable variety of individual legal and factual issues.") (internal quotations/citations omitted). That mass appraisal techniques may possibly be used to measure damage amounts puts the cart before the horse in presuming not only Class-wide harm, but also harm proximately caused by Defendants' actions.[12] Because causation is an integral element of Plaintiffs' tortious interference with contract and negligence claims, any shortcomings in establishing causation through the use of common proof is an impediment to class certification. Predominance is therefore lacking and, as a result, Class certification should be denied on this separate basis.

D. FRCP 23(b)(3): Superiority

In addition to the predominance requirement, FRCP 23(b)(3) provides a non-exhaustive list of matters relevant to the Court's determination of whether class treatment is superior to other methods of adjudication: (1) the class members' interests in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already begun by or against class members; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the likely difficulties in managing a class action. See Fed.R.Civ.P. 23(b)(3)(A-D). The superiority requirement tests whether "classwide litigation of common issues will reduce litigation costs and promote greater efficiency." Valentino v. Carter-Wallace, inc., 97 F.3d 1277, 1234 (9th Cir. 1996). "If each class member has to litigate numerous and substantial separate issues to establish his or her right to recovery individually, a class action is not superior." Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1192 (9th Cir. 2001). The undersigned finds that a class resolution is ultimately not superior to other methods for adjudicating the instant controversy.

The United States Supreme Court has explained that the main purpose of FRCP 23(b)(3) class action is to vindicate "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all, " such as those whose individual recoveries would be too small to warrant an individual suit. Amchem, 521 U.S. at 617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997) ("A class action solves this [small recovery] problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.")). Here, by Plaintiffs' own admission, they are seeking $8 billion in actual damages for the approximately 3, 000 Class members - on average, approximately $2, 666, 666 per Class member. See TAC ¶¶ 48 & 172 (Docket No. 131). If there are such potentially sizeable damages involved for Class members individually, there are incentives for such individuals to separately pursue and control their own claims, if any, against Defendants.[13] This recommends against certifying the Class.

Furthermore, while Plaintiffs' claims share common threads, the resolution of which could reduce litigation costs and promote greater efficiency ( see supra ), they are nevertheless not without the need for individual causation determinations vital to the progression of the two Class-wide claims ( see supra ). In other words, because individual issues predominate, Plaintiffs' proposed class cannot be superior to other methods of adjudication absent a practical way for this Court to readily resolve the individual factual issues that bear on causation and damage. While no single forum (Idaho, Montana, Nevada, or the Bahamas) is obviously best (or worst, as the case may be) equipped to address these significant concerns, their management is made unsurmountably difficult by the complexity and multiplicity of the issues regardless. This also recommends against certifying the Class.

Based on all of the foregoing, the undersigned finds that Plaintiffs' putative class does not withstand a rigorous FRCP 23 review.[14] Accordingly, the undersigned recommends the denial of Plaintiffs' Motion to Certify Class so that any homeowners who actually do blame Credit Suisse and/or Cushman & Wakefield for their claimed injuries can either join in this suit or file individual ones in Montana, Nevada, or the Bahamas.


Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Plaintiffs' Motion to Certify Class (Docket No. 286) be DENIED; and
2. Cushman & Wakefield's Motion to Exclude the Expert Report and Related Testimony of Randall Bell (Docket No. 319) be DENIED as moot.

Pursuant to District of Idaho Local Civil Rule 72.1(b)(2), a party objecting to a Magistrate Judge's recommended disposition "must serve and file specific, written objections, not to exceed twenty pages... within fourteen (14) days..., unless the magistrate or district judge sets a different time period." Additionally, the other party "may serve and file a response, not to exceed ten pages, to another party's objections within fourteen (14) days after being served a copy thereof."

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