In opposing certification, defendants conceded that plaintiff met the requirements of Rule 23(a), but disputed that plaintiff made an adequate showing under Rule 23(b)(3). Defendant maintained that predominance was lacking, as individual proof would be required to determine (1) whether each putative class member consented to the closure of his or her CDs and/or received advance notice of the closure, (2) whether the agreement of each class member contained a force majeure clause that would entitle defendant was entitled to close out the ISK WCCD, and (3) and whether the conversion rate used by defendant on each CD was commercially reasonable. See id., at 10-11.
The Court disagreed, concluding that each of the issues raised by defendants were “objectively measurable and requires no individualized subjective determinations to be made by this Court.” See id., at 12-13. Significantly, the Court reasoned that defendants’ arguments sought to lure the Court to deny certification on grounds divorced from the plaintiff’s theory of liability – analysis the Ninth Circuit recently deemed to constitute an abuse of discretion:
This analysis also gibes with another recent appellate decision, United Steel, Paper & Forestry, Rubber, Manufacturing Energy, Allied Industrial & Service Workers International Union v. Conoco-Phillips Co., in which the Ninth Circuit criticized the district court for inappropriately emphasizing objectively determinable factual issues in denying class certification--even though the court did not deny that plaintiffs' actual legal theory was one in which common issues of law or fact predominated over individual questions. 593 F.3d 802, 808 (9th Cir. 2010). The Ninth Circuit found that the lower court had abused its discretion by "treat[ing] plaintiffs' actual legal theory as all but beside the point" and instead focusing its analysis on factual differences among the putative class which were admittedly individualized inquiries. Id.
In the present case, EverBank effectively urges this Court to make the same mistake. There can be no question that the putative class members differ among themselves in certain factual aspects, such as the amount of money each person invested in ISK WCCDs, which version of the Agreement applied to which CD, what ISK-USD conversion rate was used to close out each CD, how much (if any) that conversion rate differed from a commercially reasonable rate, and so forth. The fact remains, however, that Vathana's legal theory of recovery for breach of contract is one in which common issues of law and/or fact predominate over individual questions. The members of the proposed class all purchased ISK WCCDs from EverBank which matured during the last quarter of 2008 and which were closed by EverBank. This lawsuit simply poses the question whether those closures constituted a breach of contract. For these reasons, a class action is superior to individual adjudication of the putative class members' individual claims, and Vathana's motion for class certification is therefore meritorious.See Vathana, 2010 U.S. Dist. LEXIS 35665, at 13-15.