Case 1:14-cv-01048-JBW-RLM Document 32-1 Filed 07/03/14 Page 1 of 23 PageID #: 535

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
CAROLINE CASTELLAW,
CHERYL CARNES,
KATHRYN ROSE. AMANDA WILSON,
HELEN SPOSATO, KACY MCDONOUGH,
SHERRY TAITZ, MARLA HUBER,
JOY MARIE CZAPSKI, DANIEL QUICK,
CHARITY RICHERT, DIANE RUBENS,
KAREN BLANKEN, WANDA PENNINO,
JILLIAN PHELAN,
DEBORAH MCCARVER,
DEBRA ALEXANDER, DONALD WELLS,
CELESTE HOBAN, SIMON RAWSON,
ILEANA MARIN, ROBIN WRIGHT,
ZAVIDA BAL, BRENDA BERTUCCI,
LEANN TOGAREPI, REBECCA BERNER,
CHRISTINA FRYE, MARCIA BROWN,
AARON CHILDRESS, JENNY ST. AUBIN,
RHONDA CAIN, HEIKE BAKER,
STACEY DORR, CARMEN
RICHARD-GOULD,
LORI SCHIMSCHOCK, and
JEFFERY C. SIMPSON
Plaintiffs, on behalf of themselves
and similarly-situated others.
v.
REGENTS COLLEGE
D/B/A
EXCELSIOR COLLEGE
7 Columbia Circle
Albany, New York 12203
And
EXCELSIOR COLLEGE
7 Columbia Circle
Albany, New York 12203
Defendant.
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No. 14-cv-01048 (JBW)(RLM)

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR

CLASS ACTION CERTIFICATION
COME NOW THE PLAINTIFFS, Caroline Castellaw, Cheryl Carnes, Kathryn Rose,
Amanda Wilson, Helen Sposato, Kacy McDonough, Sherry Taitz, Marla Huber, Joy Marie
Czapski, Daniel Quick, Charity Richert, Diane Rubens, Karen Blanken, Wanda Pennino,
Jillian Phelan, Deborah McCarver, Debra Alexander, Donald Wells, Celeste Hoban, Simon
Rawson, Ileana Marin, Robin Wright, Zavida Bal, Brenda Bertucci, Leann Togarepi,
Rebecca Berner, Christina Frye, Marcia Brown, Aaron Childress, Jenny St. Aubin, Rhonda
Cain, Heike Baker, Stacey Dorr, Carmen Richard-Gould, Lori Schimschock and Jeffrey C.
Simpson, by and through their undersigned counsel, and, in support of their Motion for Class
Action Certification, they state the following:
I.

BACKGROUND:
The Plaintiffs file this Memorandum in accordance with the Order of this Honorable

Court from the bench during the hearing held on June 3, 2014. See, Transcript of June 3,
2014 Hearing, at page 39.

The Plaintiffs believe that because they have met all the

requirements for class action certification, this matter should be certified by this Court.
This action is primarily based upon violations of New York General Business Law 349,
et. seq., and alleges that the Defendant operates unlawfully as a non-profit entity, among
other matters. The litigation essentially addresses specific misrepresentations and omissions
made to Plaintiffs to induce them to enroll in Defendants Associates Degree in Nursing
program at Excelsior College (hereafter Excelsior) from January 2003 through the present.
As a result of the misrepresentations and omissions made by the Defendant, the Plaintiffs
paid substantial amounts of money in enrollment fees, annual tuition, exam fees, books,
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workshops, lodging and travel fees and other costs. Excelsior operates what it calls a
virtual online college, but it has no actual teachers, no classrooms and no clinical training.
Specifically, Plaintiffs Amended Complaint describes the acts of the Defendant that
Plaintiffs contend constituted unfair and deceptive trade practices and breach of contract.
The Amended Complaint also establishes the commonality of the facts to Plaintiffs cases
and that of the entire class, which Plaintiffs will represent.

Defendant Excelsior is

headquartered in Albany, New York, where it centrally operates its business through its key
officers and managers who work in Defendants said Albany location. This is the location
that the website (along with the stated misrepresentations and omissions) originates from.
The Albany headquarters is the place where Defendant designs its advertising, where it
creates the training for the various employees, and where it receives telephone calls from
consumers. These facts, among others, make New York law applicable to the facts of this
case for each named Plaintiff and for the class they seek to represent.
Among other things, the Defendant represented to Plaintiffs that Excelsior offers an
educational program with nationally recognized faculty and personalized advising.
Defendant represents that it sells an accredited Nursing Associate Degree from a National
Educational

Leader,

http://www.excelsior.edu/programs/nursing/nursing-associate-degree

(last visited June 23, 2014). Defendants program falsely claims that it will provide
opportunities to acquire the knowledge and skills necessary to reach [a consumer]s personal
and nursing career goals and that it will improve consumers job security, and your earning
power. The United States District Court for the Northern District of New York has found in
a case filed by Excelsior regarding the complained-of test, known as the Clinical
Performance in Nursing Examination (hereafter CPNE), that the Excelsior program has
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no teachers, no classrooms, and no clinical training. Excelsior College v. Frye, 306 F.

Supp. 2d 226 (2004). The Supreme Court of New York, Appellate Division, Third
Department had occasion to consider whether Excelsior is an institution of higher
education for purposes of determining whether it may receive Bundy Aid. See, Excelsior
College v. N.Y. State Ed. Dept, 306 A.D.2d 675; 761 N.Y.S.2d 700; 2003 N.Y. App. Div.
LEXIS 6655. In that case, Judge Carpinello made clear the exact nature of Excelsior. His
Honor stated that Excelsior does not provide education, but rather validates education
obtained by the candidate. Id. At the hearing on Defendants Motion to Dismiss, which
took place on June 3, 2014, this Honorable Court asked whether the Defendant differed from
any other institution that provides online education. June 3, 2014 Transcript, at page 22. The
Court asked one of the determinative questions as to the difference between a college such as
John Jay and the Defendant, providing instruction online. Id. at Lines 5-7. The answer to
this question is precisely why class action certification should be granted in this case, since
for years Excelsior has managed to live a double life, one in which it claimed that it was an
educator, and the other in which it admitted, as it has to, that it is only an evaluator. To
this end, the Supreme Court of New York, Third Appellate Department stated:
[Excelsior] acknowledges that it does not offer an instructional
program for its degree applicants. In its own words, it is an
evaluator of educational experiences, not a provider of
colligate instruction. (emphasis added).
Excelsior College v. N.Y. State Educ. Dept, supra., 761 N.Y.S. 2d 700, at 701. It is this part
of Defendants split personality that violates the law in a gross manner. Consumers are
misled into believing that the Defendant is a college that provides nationally recognized
faculty and a nursing education program, when all that is simply untrue. Equally untrue is
the fact that Excelsior levels with consumers and truly informs them the nature of the
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educational product, which they are about to purchase. Every class member has this in
common. And, while it is beyond any dispute that Excelsior provides no formal instruction
and no education, the Defendant, nonetheless, stubbornly claims the opposite so that it
maintains a non-profit entity status under the IRS Code for formal education. I.R.C. 170
(b)(1)(A)(ii). See, Amended Complaint 5, setting forth Defendants false advertising and
the false statement made to the IRS. The maintenance of this IRS exempt status also allows
the Defendant to depict itself in a manner that misleads consumers into believing that
Defendant is an altruistic educational organization, when, in fact, it is a company
whosepurposeandmotivationisprofit.AmendedComplaint,at5.
As the Amended Complaint has detailed, Excelsior misrepresented cost estimations for
attendance in their school causing economic hardships to the Plaintiffs. Defendant represents
to consumers that an associates degree in nursing is usually completed in two years,
although consumers have up to seven years to complete this, further causing the misleading
cost estimations. Excelsior failed to include the cost estimations for consumers who may not
pass the CPNE the first time and fail to suggest that consumers might want to include this
into their cost estimation. Travel costs for Plaintiffs cannot even be estimated for the CPNE
until after acceptance because there exists no available data to consumers, prior to their
enrollment, about CPNE locations and test sites. Excelsior also fails to include cost
estimations for workshops that (while optional) help make up for Defendants lack of clinical
training needed to help pass the CPNE.
Defendant does not inform consumers that any credits taken at Excelsior do not transfer
as credits to any other institutions with programs that lead to an RN nursing degree. Excelsior
also withholds information regarding the CPNE exam until Plaintiffs have completed all of
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the program courses (test-out courses) and are too invested in Excelsior to leave its nursing
program. Defendant also fails to inform consumers that organizations such as the National
Council of State Boards of Nursing have criticized Excelsiors lack of clinical experience
with patients. Excelsior also fails to inform students that at least one state educational
authority has found the program inadequate for licensure based on a weekend test and
another has rejected the Excelsior program due to lack of clinical training.
Defendant falsely represented the CPNE exam as a carefully controlled and monitored
examination experience that insures a fair and objective assessment of your knowledge and
skill.

Clinical

Performance

in

Nursing

Examination

(CPNE),

http://www.excelsior.edu/exams/cpne (last visited June 23, 2014). It is only recently that

Defendant has started to call the CPNE a high stakes exam, alluding to the exams actual
nature. Defendant failed to inform Plaintiffs and potential consumers of the graduation rates
of Excelsior and has only disclosed misleading passage rates of the CPNE for the years 2011
and 2012, claiming the passage rate will be 65% or greater, yet the reported rates were
admittedly

below

65%.

AAS/AS

in

Nursing,

http://www.excelsior.edu/about/transparency/nursing (last visited June 23, 2014).

Defendant fails to inform Plaintiffs before acceptance into their program that the CPNE
can only be taken up to three times before they revoke their ability to take the test. The test
itself is so arbitrary that some consumers who should not pass are permitted to pass, while
those who deserve to pass are not allowed to pass. The Defendant has a policy and practice
of refusing to bank the passed portions of the test. It has a policy and practice of providing
inconsistent testing assignments to consumers (e.g. assigning pediatric v. adult patients can
determine whether you pass or fail).

The Defendant has a policy and practice of testing

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questionable areas that do not evaluate a consumers actual clinical knowledge (e.g. Patient
Care Situations where a consumer may never get to interact with a patient).
Additionally, failure of the CPNE can only be remedied through an appeals process that
is arbitrary, and the said appeals process is, for the most part, a mere formality. If an appeal
of the CPNE is granted, the only remedy given is that the failure is nullified and did not
count as one of the opportunities to satisfy[ing] this degree requirement essentially
lengthening the program time and costs. The appeals board often contains staff members that
administer the CPNE to the aggrieved Plaintiffs, which further makes the process a sham.
See, Amended Complaint, 19 and individual named Plaintiffs details.
The result of Defendants unfair and deceptive practices is that each consumer pays
thousands of dollars in enrollment fees, annual tuition fees, test-out course fees, fees for
workshops, fees for conferences, fees for taking the CPNE, fees for conferences (which
Defendant also neglects to inform consumers that they would pay), monies for travel and
lodging and lost wages. While the gross nature of the misrepresentations and omissions are
the same, the injuries to classes of consumers vary in the manner that the consumer was
forced to pay Excelsior through such fraudulent representations and omissions. See, H.
Newberg, Newberg on Class Actions, 21.29 at 21-55 (3d. Ed. 1992), discussing an action
by former students of cosmetology school and stating that: it is well settled that individual
fact differences need not bar a class action. (cite omitted).

II.

THE CLASSES:
When a student is failed by Excelsior three times, she not only loses her funds, but she

also lost her ability to transfer any of the credit earned from Excelsior. Excelsior is not
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recognized by other institutions to be the provider of education.

As Judge Carpinello

explained, it does not provide education, but rather validates education obtained by the
candidate. See, discussion, supra., and, see, Excelsior College v. N.Y. State Ed. Dept, 306
A.D.2d 675; 761 N.Y.S.2d 700; 2003 N.Y. App. Div. LEXIS 6655. When Excelsior fails a
person two times, the injury results from the same conduct, although the actual damages may
differ.

The same is true with respect to a consumer whom Excelsior fails once, who

discovers the fraud, and understandably refuses to retake the CPNE and a person whom
Excelsior fraudulently passes the CPNE, but who has not received the promised learning.
Plaintiffs seek certification of the following classes:
(1) All persons who enrolled at Excelsior from January 2003 through the present and
whopaidanenrollmentfee,annualtuitionfees,testoutcoursefees,workshopfees,
CPNE fees, transportation, lodging and related expenses, and who lost wages, and
whofailedtheCPNEexamthree(3)timesandweredismissedfromExcelsiorsRN
nursing program, including those who were forced to accept an unrelated degree
(e.g.LiberalArts)inlieuofthepromisedassociatedegreeinnursing.

(2) All persons who enrolled at Excelsior from January 2003 through the present and
whopaidanenrollmentfee,annualtuitionfees,testoutcoursefees,workshopfees,
CPNE fees, transportation, lodging and related expenses, and who lost wages, and
who failed the CPNE exam three (3) times before passing. This includes any persons
who may have used an appeals process to nullify or reverse the result of the CPNE exam.
(3) All persons who enrolled at Excelsior from January 2003 through the present and
whopaidanenrollmentfee,annualtuitionfees,testoutcoursefees,workshopfees,
CPNE fees, transportation, lodging and related expenses, and who lost wages, and
whofailed the CPNE exam two (2) times before passing. This includes any persons who
may have used an appeals process to nullify or reverse the result of the CPNE exam.
(4) All persons who enrolled at Excelsior from January 2003 through the present and
whopaidanenrollmentfee,annualtuitionfees,testoutcoursefees,workshopfees,
CPNE fees, transportation, lodging and related expenses, and who lost wages, and
whofailed the CPNE exam one (1) time before passing. This includes any persons who
may have used an appeal process to nullify or reverse the result of the CPNE exam.
(5) All persons who enrolled at Excelsior from January 2003 through the present and
whopaidanenrollmentfee,annualtuitionfees,testoutcoursefees,workshopfees,
CPNE fees, transportation, lodging and related expenses, and who lost wages, and
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who never took the CPNE exam, or who took the CPNE once and passed improperly
never receiving the promised education.
III.

THE APPROPRIATENESS OF CLASS TREATMENT IN THIS CASE:

As Herbert B. Newberg notes in his treatise on class actions, [t]here are compelling
reasons for bringing consumer protection class actions. A class-based effort is more
effective than an individual consumer in getting a defendant to modify its conduct. H.
Newberg, Newberg on Class Actions, 21.1 at 21-3 (3rd. Ed. 1992).

As this Court

previously stated in D.S. v. New York City Dept of Educ., 255 F.R.D. 59, 64 (E.D.N.Y.
2008): [t]he class action is well suited to protect educational rights.
In this case, the thirty-six (36) named Plaintiffs believe - through the experiences
Plaintiffs had as alleged in this suit and through the evidence presented from early in the
litigation, the declarations and the limited discovery received that the Defendant is
much more likely to modify its conduct through the class action mechanism, rather than
through lengthy individual trials. The questions resolved by the class certification
determination are purely procedural: The Courts inquiry on a class certification motion
is limited to whether the requirements of Rule 23 have been satisfied, and does not extend
to whether Plaintiffs class representatives have successfully stated a cause of action or
will prevail on the merits. Longden v. Sunderman, 123 F.R.D. 547, 551 (N.D. Tex.
1988); See also, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). It is the
recognition of common legal and factual issues, rather than their resolution, that is the
purpose of class certification. In deciding a motion for class certification, a court should
not explore the merits of the case. Eisen, 417 U.S. at 177-178; Guarte v. Furniture Fair,
Inc., 75 F.R.D. 525, 528 (D. Md. 1977).
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certification should not be converted into a de facto motion for summary judgment before
a Plaintiff has had an opportunity to conduct meaningful discovery.
Class action proceedings preserve the resources of both the courts and the parties
by permitting an issue, potentially affecting every class member, to be litigated in an
economical fashion. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155
(1982). See, Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993); Sterling v. Velsicol
Chemical Corp., 855 F.2d 1188, 1196-97 (6th Cir. 1988); Jenkins v. Raymark Industries,
Inc., 782 F.2d 468, 471 (5th Cir. 1986). Additionally, the courts have liberally and
broadly interpreted the class certification rules as a tool that best serve the ends of
justice and promote judicial economy. See Walsh v. Northrop Grumman Corp., 162
F.R.D. 440 (E.D.N.Y. 1995). See also Becher v. Long Island Lighting Co., 164 F.R.D.
144 (E.D.N.Y. 1996); German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537,
opinion clarified on re-argument in part, 896 F. Supp. 1385 (S.D.N.Y. 1995); Rodger v.
Electronic Data Systems Corp., 160 F.R.D. 532 (E.D.N.C. 1995).
An examination of the four factors set forth in Rule 23 makes clear that this case is
most appropriate for class action treatment. The Courts determination to certify a class is
a case management decision that should be made expeditiously to put in place the
framework within which the litigation should proceed.
IV.

THE REQUIREMENTS OF RULE 23 ARE SATISFIED IN THIS CASE:

Rule 23 provides that [o]ne or more members of a class may sue or be sued as
representative parties on behalf of all members only 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;
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(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.
A. The Criteria of Rule 23(a) Are Satisfied
1. Numerosity
The application of the concept on numerosity was articulated by this Court in D.S. v. New
York City Dept of Educ., supra., 255 F.R.D. 59, at 70-71. There, this Court noted, citing
Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993), among other authority, that a
determination as to practicability depends on all the circumstances in a case, not on mere
numbers. Relevant consideration includes judicial economy arising from the avoidance of a
multiplicity of actions, geographic dispersions of class members, financial resources of class
members, the ability of claimants to institute individual actions, and requests for prospective
injunctive relief which would involve future class members. [N]umerosity is presumed at a
level of 40 members. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.
1995).
In the present case, there are presently thirty-six (36) named Plaintiffs who were injured
by Defendants practices. This number of the named Plaintiffs alone will at least double with the
filing of the Second Amended complaint in this action, which should occur on or before July 14,
2014.

That number of class members is more than sufficient to satisfy the numerosity

requirement. According to the limited disclosure made by the Defendant in this case, on this
day, July 3, 2014, over 21,000 consumers attempted the CPNE test from 2006 through 2012.

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See, Exhibit 1. Of this number, over 8,800 consumers (i.e. 42%) have failed the CPNE.1 Id.
Thus, even accepting Defendants numbers as true, potentially 8,800 consumers have been
impacted by Defendants violations of the law. At least 6,200 consumers, who were first-time
CPNE takers were impacted in this limited time frame. Thus, the numerosity element of Rule 23
has been met in this case.
2. Commonality
The Rule 23(a)(2) requirement is satisfied where, as here, there exists questions of fact
and law which are common to the class. All questions of fact and law need not be common to
satisfy the rule. Rather, there need only be a unifying thread among he claims to warrant class
certification. Kamean v. Local 363, Intl Bhd. Of Teamsters, 109 F.R.D. 391, 394 (S.D.N.Y.
1986); see also Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008)
(commonality satisfied where two questions of law were common to all class members). The
Rule requires that there be common questions of law or fact, which pertain to the class as a
whole. Compare Cohen v. Uniroyal, Inc., 77 F.R.D. 685, 690 (E.D. Pa. 1977) (common nucleus
of fact) with In re Glassine and Greaseproof Paper Antitrust Litig, 88 F.R.D. 302, 304 (E.D. Pa.
1980) (common legal questions). See also Brown v. Cameron-Brown Co., 92 F.R.D. 32, 37
(E.D. Va. 1981). "The threshold of 'commonality' is not high. . . . [T]he rule requires only that
resolution of the common questions affect all or a substantial number of the class members."
Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). It is sufficient that the
plaintiffs' claims are based on policies, practices and conditions, which have general application
1

As the Court will note from a brief review of Exhibit 1, Defendants numbers do not reconcile with other numbers
contained within the same Exhibit (compare overall pass rates, e.g. Table 1, as against pass rates for individual
sites). Table 1, shows that 943 consumers passed and represent 47% for 2012-13, whereas the same 943 students
were identified as having passed at the rate of 68%, for the same time period, on a separate schedule. Nonetheless,
Defendants numbers show that thousands of consumers were failed by Excelsior, thus meeting the numerosity
requirement.

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to the class. See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). A single common
question has been deemed sufficient to satisfy the commonality requirement. See Peoples v.
Wendover Funding, 179 F.R.D. 492, 498 (D. Md. 1998) (Commonality does not require class
members to share all issues in the suit, but simply a single common issue.); Gordon v. Forsyth
County Hosp. Authority, Inc., 409 F. Supp. 708, 717-18 (M.D.N.C. 1976), rev'd on other
grounds, 544 F.2d 748 (4th Cir. 1976)("[C]ommonality is satisfied where the question of law
linking the class members is substantially related to the resolution of the litigation even though
the individuals are not identically situated."). Minor factual differences among party members
will not defeat certification. D.S. v. New York City Dept of Educ., supra., 255 F.R.D. 59, at 71.
In this case, there are not only common issues, there are likely no issues that are not
common except for the amount of damages owed each class member. Defendants collected
enrollment fees, annual tuition fees, test-out course fees, and CPNE fees from all of the
members of the class. Were each Excelsior RN nursing program student to file individual
suits, each plaintiff would have to prove their case separately. Class certification would not
relieve the consumers from each fully proving their case, factually and legally. Moreover, as
the declarations filed in support of the Opposition to Defendants Motion to Dismiss
showed, Excelsior took advantage of consumers who are working adults, who are busy
making ends meet, and who trusted that Defendant is what it claims itself to be: an honest
provider of education. All of the Plaintiffs were defrauded by the Defendant in the same
fashion, pursuant to a single design of advertisements on the Internet, or through the same
omission of material facts. See, Amended Complaint, at 14, (a) through (i).
In General Telephone Co. v. Falcon, 457 U.S. 147 (1982), the Supreme Court stated:
The class device was designed as an exception to the usual rule that of the individual named
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parties only. Class relief is peculiarly appropriate when the issues involved are common to
the class as a whole and they turn on questions of law applicable in the same manner to each
member of the class. Id at 701. For in such cases, the class device saves the resources of both
the courts and the parties by permitting an issue potential affecting every class member to be
litigated in an economical fashion.
3. Typicality of Claims
Rule 23(a)(3) requires that each class members claim arises from the same course of
events, and each class member makes similar legal arguments to prove the defendants liability.
Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)(internal quotations omitted).
Minor variations in the fact patterns underlying individual claims do not defeat typicality when
the defendant directs the same unlawful conduct at the named plaintiffs and the class.
Robidoux, supra., 987 F.2d 931, at 936-37. Like the commonality requirement, typicality does
not require the representative partys claims to be identical to those of all class members. Frank
v. Eastman Kodak Co., 228 F.R.D. 174, 182 (cite omitted)(W.D.N.Y. 2005).

The facts

underlying the named Plaintiffs cases are as simple as they are typical. Plaintiffs, at times
relevant to this action, were students enrolled at Excelsior in the RN nursing program. These
consumers were falsely led to believe that not only would they succeed in Defendants program
but that they would perform well on the CPNE and graduate from the program at minimal costs.
Defendant omitted passage and graduation rates, among other factual omissions including the
lack of transferability of credits, in order to induce Plaintiffs to enroll in their program. These
claims are seen throughout Plaintiffs Amended Complaint.
"[T]he typicality requirement is liberally construed." Scholes v. Tomlinson, 145 F.R.D.
485, 490 (N.D. Ill. 1992) (class certified in RICO action) (citation omitted). This requirement is
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designed to align the interests of the class and the class representatives so that the latter will
work to benefit the entire class through the pursuit of their own goals. In re: Prudential Ins. Co.
America Sales Practice Litig. Agent Action, 148 F.3d 283, 311 (3rd Cir. 1998). The rule demands
a common sense inquiry into whether the incentives of the Plaintiffs are aligned with those of the
class, and is meant to ensure that representative parties will adequately represent the class. Baby
Neal v. Casey, 43 F.3d 48, 55 (3rd Cir. 1994); Wright, Miller & Kane, at 1764.
The Plaintiffs claims are typical of the rest of the class because they raise the same claims
that are available to all class members. The heart of the typicality requirement of Rule 23(a)(3) is
whether the overall scenario is sufficiently similar or typical in the named plaintiffs' cases to
ensure that they will represent the claims of the whole class during the course of the litigation.
Steiner v. Equimark Corp., 96 F.R.D. 603, 609 (W.D. Pa. 1983), citing Piel v. National
Semiconductor Corp., 86 F.R.D. 357, 371 (E.D. Pa. 1980). As noted by the court in Snider v.
Upjohn, 115 F.R.D. 536 , 540 (E.D. Pa. 1987), Typical does not mean identical.
In this case, Plaintiffs claims present virtually identical fact patterns and legal theories,
which each class member would have to present if he or she filed an individual suit. The claim of
every class member is based upon the same conduct by Excelsior. The Plaintiffs claims are,
therefore, not only typical of the claims of the class, they are virtually identical to them. See
Kohl v. Assoc. of Trial Lawyers of America, 183 F.R.D. 475, 484 (D. Md. 1998).
4. Adequacy of Representation
The standards of Rule 23(a)(4) are met if it appears that the named plaintiffs' interests are
not antagonistic to those of other class members and that the plaintiffs' attorneys are qualified,
experienced, and generally able to conduct the litigation. See examples: Rodolico v. Unisys
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Corp., 199 F.R.D. 468, 477 (E.D.N.Y. 2001); Bogosian v. Golf Oil Corp., 561 F.2d 434, 449 (3d
Cir. 1977), cert. denied, 434 U.S. 1086 (1978); Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239,
247 (3d Cir.), cert. denied, 421 U.S. 1011 (1975); Brown v. Cameron-Brown, 92 F.R.D. 32 , 4041 (D.C. Va. 1981).
The Plaintiffs are adequate representatives, with no conflicts of interest with the class.
These Plaintiffs agreed to step in to carry the burden of representing this class since the filing of
the Complaint, and there is no question of their willingness to continue the effort to conclusion.
Moreover, the Plaintiffs are represented by counsel experienced in class actions and complex
cases, including cases that are virtually identical to the present case. Counsel for the Plaintiffs
has represented numerous individuals in significant class actions matters. See, e.g., Richard v.
Bell Atlantic Corporation, 946 F. Supp. 54 (1996) wherein the Honorable Judge Charles R.
Richey adopted the integrated enterprise test in a District Court for the District of Columbia case;
and, see also, Sanders v. Career Education Corporation (D.C. Md., Case No. 8:2006-cv-01031;
class action certification approval granted on 9/26/2008) in an educational service consumer
protection case.
B. The Criteria of Rule 23(b) Are Satisfied
After finding that the requirements of Rule 23(a) have been met, the Court should
certify the case as a class action if any one of three criteria in part (b) of the Rule is satisfied. In
this case, Plaintiff seeks certification only under Rule 23 (b)(3).

1. Rule 23(b)(3): Common Issues Predominate

Rule 23(b)(3) states that a class action may proceed where: the court finds that questions
of law or fact common to the members of the class predominate over any questions affecting
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only individual members and that a class action is superior to the other available methods for the
fair and efficient adjudication of the controversy. Predominance requires that the issues in the
class action that are subject to generalized proof, and thus applicable to the class as a whole
predominate over those issues that are subject only to individualized proof. In Re: Visa
Check/Master Money Antitrust Litigation, 280 F.3d. 124, 136 (2d Cir. 2001), cert. denied, 122
U.S. 2382 (2002). The essential inquiry is whether liability can be determined on a class-wide
basis, even when there are some individualized damages issues. Id. 280 F.3d 124, at 139. In
determining whether common issues predominate, the Court's inquiry should be directed
primarily toward the issue of liability. See Bogosian v. Gulf Oil Corp., 561 F.2d at 456; See also,
Snider v. Upjohn, 115 F.R.D. at 541; In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322,
345 (E.D. Pa. 1976).
Class certification is appropriate in this case under Rule 23(b)(3) because the most
important issues in this case, both factually and legally, are common to all class members. The
lawsuit focuses on Defendants uniform, consistent and unlawful practices in making the
representations, the omissions and in deceiving consumers with respect to the CPNE, causing
them to take and retake the exam to the consumers detriment.
Subdivisions (b)(1) and (b)(2) of the Rule, focus largely on declaratory, injunctive and
equitable actions. Plaintiffs do not seek such certification with the exceptions of the requests that
the Defendant make the disclosures that were not made to the Plaintiffs and that the Defendant
take the steps requested that consumers learn of the graduation rates, the pass rates, the lack of
transferability of credit, the exact costs, the subjective nature of the CPNE, and the length of time
that it takes a consumer to complete the program.
Outside of those areas of disclosure, the individual issues involve the amount of damages
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to which each class member is entitled. It is a truism of class action law that if common issues
predominate with regard to liability, the class should be certified even if the quantum of damages
differs between class members. The fact that [s]ome students will benefit more than others is
not unusual in an educational class actions setting. See, D.S. v. New York City Dept of Educ.,
supra., 255 F.R.D. 59, at 73. The questions is whether proposed classes are sufficiently
cohesive to warrant adjudication by representation. (cite omitted) Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 623 (1997). In order to satisfy the predominance test, common issues
must constitute a significant part of the individual cases. Id. (citing Jenkins v. Raymark
Industries, 782 F.2d 468, 472 (5th Cir. 1986)). The predominance requirement is satisfied
unless it is clear that individual issues will overwhelm the common questions and render the
class action valueless. In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 517
(S.D.N.Y. 1996). Thus, when common questions represent a significant aspect of the case and
they can be resolved for all members of the class in a single adjudication, there is a clear
justification for handling the dispute on a representative rather than on an individual basis. In re
Agent Orange Prod Liab. Litig., 100 F.R.D. 718, 722-23 (E.D.N.Y. 1983) (quotations
omitted).
Courts have repeatedly emphasized that predominance exists, and class certification is
appropriate, where the focus of the litigation is, as in this case, on the defendants conduct. See,
e.g., Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 2006 WL 1367414, at *6 (E.D.N.Y.)
(Although there are thousands of individual transactions at issue in this litigation, plaintiffs
allege that defendants conduct with respect to each transaction-which must form the basis for
liability-was similar or identical.). E.g. In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180,
187 (D.N.J. 2003). Cf also Rozerna Marshfield Clinic, 174 F.R.D. 425, 439 (W.D. Wis. 1997)
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([B]ecause proof of liability will focus on defendants conduct and not defendants relationship
with individual Plaintiffs, it is a question common to the entire proposed class. Where, as in this
case, liability can be resolved by a jury with a single decision that applies to the whole class,
and the only individual question left to resolve relates to damages, class certification is
warranted. In re MTBE Prods. Liab. Litig., 2007 WL 25474, at *5; see also In re Kirschner, 139
F.R.D. at 80 (stating that where the liability issue is common to the class, common questions are
held to predominate over individual ones.).
Common issues and common proof not only predominate, but overwhelm individual issues
facing the class. Therefore, class action treatment is superior to individual prosecution of the
claims in this action. In Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988), the Sixth
Circuit stated, [w]here the Defendants liability can be determined on a class-wide basis
because the cause of a disaster is a single course of conduct which is identical for each of the
plaintiffs, a class action may be the best suited vehicle to resolve such a controversy. Id. at
1197. The Velsicol court based its decision on the fact the [i]n mass tort accidents, the factual
and legal issues of a defendants liability do not differ dramatically from one plaintiff to the
next. Id. Furthermore, the Velsicol court noted there may be individual issues but found their
existence to have little impact on the maintenance of the action in the groundwater contamination
context. No matter how individualized the issue of damages may be, these issues may be
reserved for individual treatment with the question of liability tried as a class action.
Consequently, the mere fact that questions peculiar to each individual member of the class
remain after the common questions of the defendants liability have been resolved does not
dictate the conclusion that class action is impermissible. Id. As a leading treatise on federal civil
procedure puts it:
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[C]ourts have held that [a class action] can be brought . . . even though there is
not a complete identity of facts relating to all class members, as long as a
common nucleus of operative facts is present . . . . The common questions
need not be dispositive of the entire action . . . . Therefore, when one or more
of the central issues in the action are common to the class and can be said to
predominate, the [class] will be considered proper.

7A Wright, Miller & Kane, Federal Practice & Procedure, 1788 at p. 528.
2. Rule 23(b)(3): Superior Method of Adjudication
The second factor to consider under part (b)(3) is that a class action must be superior to
other available methods for the fair and efficient adjudication of the controversy. See, also,
Green v. Wolf Corp., 406 F.2d 291, 301 (2d Cir. 1968). The class action mechanism is the
superior method even if Plaintiffs claims were deemed small or modest. In re Frontier Ins.
Grp., Inc., Se. Litig., 172 F.R.D. 31, 49 (E.D.N.Y. 1997). Class action adjudication the only
practical way in which the class can obtain relief against Defendant without significant expense
in pursuing each of the claims. If, however, individual lawsuits were filed, the potential for
thirty-six individual cases in which the evidence is submitted and the same issues are proved in
every single case, would be unduly burdensome on this Court. A successful class action in this
case is far superior to individual cases brought by hundreds (or, as Defendants own numbers
suggest, thousands) of class members against Defendant because it will allow recovery by all
class members without clogging the Courts trial docket.
Moreover, unless the class members obtain relief through this class action, most of the
class members will not obtain any relief at all. There is simply no other practical means for this
class to challenge a practice, which clearly violates the law.
A class action permits a large group of claimants to have their claims adjudicated in a
single lawsuit. This is particularly important where, as here, a large number of small
claimants are involved. In light of the costs of discovery and trial, many of them would
not be able, or would never seek, to secure relief if class certification were denied.

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In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 732 (N.D. Ill. 1977).
The present case presents no management difficulties. The class is based upon a uniform
practice by Defendant, which violates specific New York statutes and law to which relief is
directed. Even the damages, which of necessity will differ in amount, will be determined by the
amounts of checks, or other forms of payment, received by Defendant and expended by
Plaintiffs. The issue of manageability of a class action in an appellate context was extensively
discussed in In Re: Visa Check/Master Money Antitrust Litigation, supra., 280 F.3d. 124. In that
case, the Second Circuit affirmed the certification of a class, which consisted of every business
in the United States, large and small, which accepted Visa and/or MasterCard credit cards. The
class literally consisted of millions of businesses in all of the fifty states ranging in size from
WalMart to the local dry cleaner. The defendants major challenge on appeal was on the issue of
manageability. The Second Circuit first disposed of defendants arguments that individualized
proof of damages should preclude certification, stating that: the fact that there may have to be
individual examinations on the issue of damages has never been held, however, to bar class
actions. 280 F.3d at 139. On the general issue of manageability, the Court said:
[F]ailure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is
disfavored, and should be the exception rather than the rule.

Id., 280 F.3d at 140 (citations omitted).

Recognizing the unlikelihood that individual consumers would file their own lawsuits,
numerous courts regularly certify classes in consumer lawsuits. See, e.g. Peoples v. Wendover
Funding, Inc., 179 F.R.D. 492 (D. Md. 1998) (class of consumers seeking relief under Fair Debt
Collection Practices Act); Chisolm v. TranSouth Financial Corp., 184 F.R.D. 556, 562-63
(E.D.Va. 1999) (consumer class against finance company); Cartt v. Superior Court, 124 Cal.
Rptr. 376 (Cal. Ct. App. 1975) (class of gasoline credit card purchasers).
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V. CONCLUSION
This case raises important issues for a sizeable class, which are common to all. Plaintiffs
share all of these issues and are committed to bringing them to a resolution on behalf of all class
members.

The only practical method for adjudicating Plaintiffs claims is through class

certification. Accordingly, the Court should certify the class as proposed. Additionally, there are
strong policy considerations in favor of a liberal application of the class action rule. See e.g.,
Kahan v. Rosenstiel, 424 F.2d 161, 169 (3rd Cir. 1970) ([T]he interests of justice require that in
a doubtful case... any error, if there is to be one, should be committed in favor of allowing the
class action.). Once a Plaintiff has made a preliminary legal showing that the requirements of
Rule 23 have been met under this pleading standard, the burden of proof shifts to the defendant
to demonstrate that the Rule cannot be satisfied. See 2 H. Newberg & A. Conte, Newberg on
Class Actions, 7.22, at 7-74 to 7-75 (3d Ed. 1992). Absent such a showing by the Defendant,
class certification should be granted.
WHEREFORE, the Plaintiffs request that this Court enter an Order granting Plaintiffs
Motion for Class Certification.
Respectfully Submitted,
THE PLAINTIFFS,
BY:

22

/s/ John Hermina

Their Attorneys
John W. Hermina, Esquire
Hermina Law Group
8327 Cherry Lane
Laurel, Maryland 20707
301-776-2003
410-792-2727

Case 1:14-cv-01048-JBW-RLM Document 32-1 Filed 07/03/14 Page 23 of 23 PageID #: 557

Certificate of Service
I hereby certify that on this 3rd day of July 2014, a copy of this Memorandum in Support
of Motion for Class Action Certification was served via the Courts ECF system:
Joan M. Gilbride, Esquire
Kaufman Borgeest & Ryan LLP
120 Broadway, 14th Floor
New York, NY 10271

BY:

23

/s/ John Hermina