United States District Court, S.D. West Virginia, Huntington Division
KAREN ADAMS, individually and on behalf of all others similarly situated, Plaintiff,
BETSY DEVOS,  in her capacity as Secretary of the United States Department of Education, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS CHIEF JUDGE.
is Plaintiff Karen Adams' Motion for Class Certification.
ECF No. 29. For the following reasons the Court
DENIES the Motion.
detailed discussion of the background of Adams' claims
and the statutory structure on which they are based can be
found in the Court's Memorandum Opinion and Order denying
Defendant, Betsy DeVos's Motion to Dismiss. Adams v.
Duncan, 179 F.Supp.3d 632, 634-39 (S.D. W.Va. 2016). For
the purposes of this Memorandum Opinion and Order only a
brief summary is due. In 1986 Adams obtained a guaranteed
student loan in the amount of $2, 500 from Florida Federal
Savings and Loan to attend the for-profit trade school PTC
Institute in Florida. Both institutions are now defunct.
Florida Federal met its demise in 1987 when an employee
notified the Federal Bureau of Investigation that the bank
was falsifying documents to comply with federal student loan
regulations. See United States v. Harmas, 974 F.2d
1262, 1264-66 (11th Cir. 1992). A criminal investigation
ensued and a number of Florida Federal's executives were
convicted of, among other things, conspiracy to defraud the
government and stealing government money. Id. PTC
ceased to operate when in 1995 the Department of Education
(“DoE”) determined that PTC had falsely certified
its students' eligibility for guaranteed student loans
and issued group discharge to all borrowers who used their
guaranteed student loans to attend the institution from
January 1, 1986 through June 30, 1987. Borrowers could have
their loans discharged by submitting certain forms to DoE.
awarded a Social Security Supplemental Income of around $700
in 1992, defaulted on her loan. Adams was apparently unaware
of the discharge, but, all the same, she attempted to have
her loan discharged in 2006. DoE denied the request because
she wrote the wrong educational institution on the forms. In
2007, DoE convinced Adams to rehabilitate her loan, and in
2008 it sold her rehabilitated loan to SunTrust, a private
financial institution. Neither DoE nor SunTrust realized that
the loan was subject to discharge. In 2012, the loan guaranty
agency, Educational Credit Management Corporation, informed
Adams that her loan was eligible for discharge based on
DoE's 1995 group discharge. Adams applied and was granted
the discharge. She was refunded all payments made on the loan
beginning in 2007, totaling $2, 572.96. She did not receive
then brought suit claiming that DoE had violated the
Administrative Procedures Act when it (1) rehabilitated her
loan subject to discharge; (2) sold it to SunTrust; and (3)
denied her claim for interest on the money paid on the
now moves the Court to certify a class of plaintiffs whose
eligibility for a guaranteed student loan disbursed in whole
or in part on or after January 1, 1986 was falsely certified
by PTC “and/or” whose loans were secured through
Florida Federal and are allegedly subject to restitution.
Pl.'s Mot. for Class Certification 9, ECF No. 30. Adams
believes the class composed of students whose eligibility was
fraudulently certified numbers 10, 000, while those whose
loans were the basis for the criminal convictions of the
Florida Federal executives numbers 17, 000. It is not
entirely clear to the Court whether Adams seeks to certify
one or two classes. Nevertheless, DoE forcefully urges the
Court to reject Adams' Motion entirely because Adams has
provided no evidence supporting the number of potential class
23(a) of the Federal Rules of Civil Procedure establishes
four class certification requirements: (1) a class so
numerous that joinder of all members is impracticable; (2)
questions of law or fact common to the class; (3) a
representative party whose claims and defenses are typical of
the class' claims and defenses; and (4) a representative
party that will fairly and adequately protect the class'
interests. Fed.R.Civ.P. 23(a); Monroe v. City of
Charlottesville, 579 F.3d 380, 384 (4th Cir. 2009).
“A plaintiff bears the burden of proving these
requirements.” Id. (citing Thorn v.
Jefferson Pilot Life Ins. Co., 445 F.3d 311, 317 (4th
Cir. 2006)). In addition to these four requirements, a
plaintiff must also demonstrate that the proposed class
action fits into one of three forms permitted by Rule 23(b).
Fed R. Civ. P. 23(b) (1-3).
characterizes her proposed class action as one seeking
injunctive relief and therefore in the form described by Rule
23(b)(2): “the party opposing the class has acted or
refused to act on grounds that apply generally to the class,
so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.”
Adams has not been able to prove that her proposed class or
classes meet the “numerosity” requirement of Rule
23(a)(1). There is no hard and fast rule that courts follow
to determine whether a plaintiff has met the numerosity
requirement. There are, however, some generally applicable
principles that courts have used to define the contours of
this requirement. Consideration of class size is by far the
most obvious sign of impracticality, but its not the only
one. 7A Charles Alan Wright, et al., Federal Practice and
Procedure § 1762 (3d ed. 2017); Colo. Cross
Disability Coal. v. Abercrombie & Fitch Co., 765
F.3d 1205, 1215 (10th Cir. 2014) (citing “several
factors” that inform the impracticability inquiry,
including the nature of the action, the size of the
individual claims, and the location of the class members).
there is no threshold number of class members that would
guarantee numerosity is met, very small classes consisting of
two members up to twenty-six typically do not meet the
requirement. See, e.g., Ackerman v. Bd. of Educ.
of New York, 372 F.Supp. 274 (S.D.N.Y. 1974) (finding a
class of two insufficient to meet numerosity); Sandoval
v. M1 Auto Collison Ctrs., 309 F.R.D. 549 (N.D. Cal.
2015); but see Philadelphia Elec. Co. v. Anaconda Am.
Brass Co., 43 F.R.D. 452, 463 (E.D. Pa. 1968) (finding
class of twenty-five met the numerosity requirement).
Likewise, very large classes are more likely to meet the
numerosity requirement, as joinder of any number of class
members in excess of a few hundred would be decidedly
impractical. See, e.g., Borowski v. City of
Burbank, 101 F.R.D. 59, 62 (N.D. Ill. 1984) (finding two
hundred potential claimants impractical to join); Collins
v. Olin Corp., 248 F.R.D. 95, 101 (D. Conn. 2008)
(finding 300 claimants impractical to join).
plaintiff is not required to prove with specificity the exact
number of possible class members. In re Zyprexa Prods.
Liab. Litig., 253 F.R.D. 69, 197 (E.D.N.Y. 2008).
Instead, “[p]laintiffs must offer ‘some evidence
of established, ascertainable numbers constituting the
class.'” Colo. Cross, 765 F.3d at 1215
(quoting Rex v. Owens ex rel. Okla., 585 F.2d 432,
436 (10th Cir. 1978)). A court is permitted to accept
“common-sense” assumptions about the size of the
class in lieu of precise calculation of the class. De
Lage Landen Fin. Servs., Inc. v. Rasa Floors, LP, 269
F.R.D. 445, 460 (E.D. Pa. 2010) (quoting Alberton v.
Commw. Land Title Ins. Co., 247 F.R.D. 469, 476 (E.D.
Pa. 2008)). Some courts, however, have gone as far as to
assume that “[w]here ‘the only relief sought for
the class is injunctive and declaratory in nature' even
‘speculative and conclusory representations' as to
the size of the class suffice as to the requirement of