In this multidistrict litigation, plaintiffs sought certification of two classes of Arizona property owners challenging the operation of the Mortgage Electronic Registration Systems (MERS) in transferring the beneficial interest under their deeds of trust. Plaintiffs alleged that these mortgage transactions misrepresented MERS’s authority as a beneficiary, contained false statements, and were robosigned. The court granted defendants’ motion to dismiss and plaintiffs appealed. The Ninth Circuit reversed and remanded as to the robosigning claim, but affirmed dismissal of the remaining counts. On remand, plaintiffs moved for certification of the robosigning claim.

The court denied the motion for certification, reasoning that the proposed class was neither clearly defined nor ascertainable. First, the court noted that the two proposed class definitions set forth in the consolidated complaint were not tailored to the robosigning claim and refused to exercise its discretion to redefine the class; the court also found that the open-ended class period – defined as extending “to present” could “potentially add new class members daily” and thus would “frustrate any attempt for a precise definition of either proposed class.” Second, the court found that the proposed class was not ascertainable because the court would have to individually examine each proposed class member’s mortgage to determine which were forgeries or robosigned. In so holding, the court noted that plaintiffs’ expert evidence on statistical sampling was unreliable because it was not tailored to the robosigning claim. Because plaintiffs’ statistical study had no application to robosigning, the court also found that the numerosity, commonality, and typicality requirements for certification were not met.

In re Mortgage Electronic Registration Systems Litigation, MDL 09-2119-PHX-JAT, 2015 WL 9268189 (D. Ariz. Dec. 21, 2015).