Cleven v. Mid-Am. Apartment Cmtys., Inc.

Full title: Cathi CLEVEN, Tara Cleven, Areli Arellano, and Joe L. Martinez, for…

Court: United States District Court, W.D. Texas, Austin Division

Date published: Sep 5, 2018

328 F.R.D. 452 (W.D. Tex. 2018)

Opinion

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

          Britton D. Monts, The Monts Firm, Karson Karl Thompson, Beck Redden LLP, Stacey V. Reese, Stacey V. Reese Law PLLC, Jason W. Snell, The Snell Law Firm, PLLC, Austin, TX, Richard E. Norman, Ronald Martin Weber, Jr., Crowley Norman LLP, Russell S. Post, Beck Redden LLP, Houston, TX, for Plaintiffs.

         Barry Goheen, Pro Hac Vice, J. Anthony Love, Pro Hac Vice, King & Spalding LLP, Atlanta, GA, Katherine McFarland Stein, Kathy L. Poppitt, King and Spalding LLC, Austin, TX, for Defendants.

          ORDER

         ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

          Before the Court is the report and recommendation of United States Magistrate Judge Mark Lane on class certification. (R. & R., Dkt. 166). On February 8, 2018, Plaintiffs Cathi Cleven, Tara Cleven, Areli Arellano, and Joe L. Martinez (collectively, "Plaintiffs"), filed an Opposed Motion for Class Certification and Brief in Support, (Dkt. 126) ("the Motion"), which this Court referred to Judge Lane. Defendants Mid-America Apartment Communities, Inc.; Mid-America Apartments, LP; and CMS/Colonial Multifamily Canyon Creek JV LP (collectively, "Defendants") filed a Brief in Opposition on February 18, 2018, (Dkt. 129). Plaintiffs filed a reply, (Dkt. 132), and a Brief on Evidence in Support of the Motion, (Dkt. 141).

          Judge Lane held a motions hearing on class certification on March 1, 2018. (Mot. Hr’g Tr., Dkt. 161). Plaintiffs filed a sealed post-hearing brief, (Dkt. 146), and Defendants filed a response to that brief, (Dkt. 151).

         On May 5, 2018, pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Judge Lane issued a report and recommendation that this Court grant Plaintiffs’ Motion for Class Certification. (R. & R., Dkt. 166). Defendants filed timely objections. (Defs.’ Obj., Dkt. 171). The parties are therefore entitled to de novo review of the portions of the report to which Defendants object. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).

          I. BACKGROUND

         This case concerns apartment late fees. Plaintiffs are current and former tenants of Defendants’ residential apartment communities throughout Texas. They allege that Defendants’ late fee policy violates Texas Property Code § 92.019 ("Section 92.019"). (Second Am. Compl., Dkt. 36). Defendants are Mid-America Apartment Communities Inc. and Mid-America Apartments, LP, (together, "MAA") and MAA’s predecessor in interest, CMS/Colonial Multifamily Canyon Creek JV LP ("Colonial") (collectively, "Defendants").^{1 1} MAA and Colonial merged in 2013. (Form 10-K, Dkt. 126-22). Prior to the merger, MAA and Colonial applied different late fee structures. (Second Am. Compl., Dkt. 36 ¶ 21-24; Defs.’ Obj., Dkt. 171, at 3-4). Prior to the merger, MAA generally charged late fees according to a $50/$10 structure for tenants who paid rent late, which applied a $50 initial fee and an added $10 fee for each additional day late. (Ellsberry Dep., Dkt. 126-13, at 11). Colonial typically charged a similar $75/$10 late fee structure, with $75 as the initial late fee and a set fee of at least $10 for each additional day late ("the $75/$10 fee"). (Id. ). These late fee policies were largely uniform across Texas for each company immediately prior to the merger. (Id. ; Defs.’ Obj., Dkt. 171-2, at 3-4.). After the 2013 merger, Defendants harmonized the late fee policy according to the $75/$10 fee structure across all of their Texas properties. (See Defs.’ Obj., Dkt. 171-2, at 3-4). If a tenant failed to pay their rent by the third day of the month, Defendant’s property management software Yardi Voyager automatically assessed the fee shortly after midnight on the fourth of the month. (Ellsberry Dep., Dkt. 126-13, at 16).

1 In a companion case, Brown v. Mid-America Apartment Communities, et al., No. 1:17-CV-307-RP (W.D. Tex. filed Apr. 10, 2017), another group of plaintiffs allege that different MAA properties, acquired in its merger with Post Apartment Homes, LP, violate the same Texas statute by charging a fixed late fee equal to 10% of the tenant’s monthly rent.

1 The Motion was referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

         Plaintiffs seek class certification for their claims that MAA and Colonial charged them late fees in violation of Texas Property Code § 92.019, which provides that "a landlord may not charge a tenant a late fee for failing to pay rent unless ... the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent." (Mot., Dkt. 126; Second Am. Compl., Dkt. 36 (citing TEX. PROP. CODE § 92.019(a)(2) ) ). The statute further provides: "A landlord who violates this section is liable to the tenant for an amount equal to the sum of $100, three times the amount of the late fee charged in violation of this section, and the tenant’s reasonable attorney’s fees." Id. at § 92.019(c). The statute invalidates any lease term "that purports to waive a right or exempt a party from a liability under this section." Id. at § 92.019(d).

          Plaintiffs allege that there is no evidence that Defendants ever estimated the damages resulting from late-paid rent as required under the statute before they assessed a late fee against any putative class member. (Mot., Dkt. 126, at 6). Defendants counter that testimony from a former MAA executive demonstrates that Defendants "considered numerous factors in setting MAA’s late fee." (Defs.’ Obj., Dkt. 171, at 5 (citing Mot. Hr’g., Dkt. 161, at 128-133, 143-144) (Testimony of James Maclin) ).

          Plaintiffs seek to certify the following class, for a class period from June 29, 2012, to September 20, 2017 ("the proposed class"):

All persons during the Class Period who (i) were residential tenants of apartment properties in the State of Texas under written leases where MAA or its predecessor in merger, Colonial, served as an owner or landlord, and (ii) were assessed and paid an initial rent late fee of $75.00 and/or a daily rent late fee of at least $10.00.^{2 2}

2 "The Class excludes the following persons: the judge(s) assigned to this case and his or her staff; governmental entities; MAA and Colonial and their affiliates; persons adjudged to be bankrupt during the class period; persons who previously released MAA of the claims raised by this case; and persons who abandoned their MAA apartment units without paying rent or who were evicted by MAA for nonpayment of rent." (Mot., Dkt. 126, at 3 n.9).

2 Defendants further suggest that the fact that none of the four representatives has moved away from the MAA property and that all renewed leases without attempting to negotiate the late fee scheme outlined in their leases reveals that this is a lawyer-driven case, however, an equally-plausible inference is that these are price-sensitive consumers in a tight housing market.

(Mot., Dkt. 126, at 3).^{3 3} Plaintiffs estimate that this proposed class would number in the thousands. (Id., at 10, 17).           Plaintiffs Cathi and Tara Cleven brought the original action on behalf of themselves and all others similarly situated. (Compl., Dkt. 1, at 1). Plaintiffs’ Second Amended Complaint added Areli Arellano and Joe L. Martinez as additional class representatives. (Second Am. Compl., Dkt. 36). All plaintiffs are current or former tenants of Defendants, and all signed standard Texas Apartment Association ("TAA") form leases which expressly provided for the $75/$15 or $75/$10 late fee structure above. (Pls.’ Leases, Dkt. 126-5, -6, -10, -11). Each has been charged and paid a late fee through the Defendants’ Yardi Voyager software. (Pls.’ Decl. and MAA Resident Ledgers, Dkts. 126-1, -2, -7, -8, -9, -12).⁴ Defendants deposed each of the four named Plaintiffs prior to the class certification hearing. (See Defs.’ Resp., Dkt. 129; Defs.’ Obj., Dkt. 171). Each of the four named Plaintiffs attended a portion of the class certification hearing. (Pls.’ Reply, Dkt. 172, at 17).

3 The Court notes that this proposed class differs slightly from the proposed class definition in the Amended Complaint. (Compare Second Am. Compl., Dkt. 36, at 17). The Court bases its analysis on this amended definition.

3 Section 92.019(d) states "a provision of a lease that purports to waive a right or exempt a party from a liability or duty under this section is void," and Plaintiffs argue that Defendants have committed per se violations of the statute.

4 Plaintiffs note that, in one instance, Defendants assessed an initial late fee plus the daily late fee against the Clevens, but waived the $75 base fee while charging only the additional daily fees. (Pls.’ Decl., Dkt. 126-1-2).

          II. LEGAL STANDARD

         For class certification, Plaintiffs must satisfy Rule 23(a): (1) the class must be "so numerous that joinder of all members is impracticable"; (2) there must be "questions of law or fact common to the class"; (3) the claims or defenses of the representative parties must be "typical of the claims or defenses of the class"; and (4) the representative parties must "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a).

          Additionally, "a plaintiff must also demonstrate that a proposed class satisfies one of the criteria articulated in Fed.R.Civ.P. 23(b)." Yates v. Collier, 868 F.3d 354, 366 (5th Cir. 2017). Plaintiffs in this case seek certification under Rule 23(b)(3), which requires them to demonstrate that "the questions of law or fact common to the 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). Finally, the Fifth Circuit has interpreted Rule 23 to include an implied prerequisite that the proposed class must be ascertainable. See John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). Plaintiffs have the burden of showing that each of the Rule 23 requirements are met. Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016), cert. denied, __ U.S. __, 138 S.Ct. 76, 199 L.Ed.2d 24 (2017) ("[A] plaintiff seeking to certify a class ‘must affirmatively demonstrate his compliance’ with Rule 23.") (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ).

         A district court "must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class." Yates, 868 F.3d at 362 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) ); see also Wal-Mart, 564 U.S. at 350-51, 131 S.Ct. 2541. This requires a court to " ‘look beyond the pleadings to understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination.’ " Yates, 868 F.3d at 362 (quoting McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 (5th Cir. 2003) ); see also Wal-Mart, 564 U.S. at 350-51, 131 S.Ct. 2541.

          III. DISCUSSION

         The magistrate judge determined that Plaintiffs have satisfied each requirement of Rule 23, and recommended that this Court grant Plaintiffs’ motion for class certification. (R. & R., Dkt. 166). Defendants object that the magistrate judge erred in finding that Plaintiffs have satisfied the requirements for class certification. (Defs.’ Obj., Dkt. 171). Because Defendants timely objected to the report and recommendation, they are entitled to de novo review for each part to which they object.

          Having conducted a de novo review of the parties’ submissions, the record, and applicable law, the Court agrees with the magistrate judge’s factual findings and legal conclusions, and adopts the report and recommendation in its entirety. In adopting the magistrate judge’s report and recommendation in full, the Court has considered and overruled each of Defendants’ objections. The Court will address each requirement for class certification in turn.

          A. Numerosity

         Numerosity is the sole component of the report and recommendation to which Defendants do not object. (See Defs.’ Obj., Dkt. 171).⁵ There being no objections to this portion of the magistrate judge’s report and recommendation, the Court reviews the numerosity analysis for clear error and finds none. Thousands of proposed class members, (see Mot., Dkt. 126, at 10-17), far exceeds the range that generally satisfies the numerosity requirement in the Fifth Circuit. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981) ). The Court finds that the proposed class in this action is so numerous that joinder of all members is impracticable, establishing numerosity.

5 The magistrate judge also noted that Defendants have previously represented at a hearing that they do not dispute numerosity. (R. & R., Dkt. 166, at 5).

          B. Commonality

         Next, Rule 23(a) requires "questions of law or fact common to the class." Fed.R.Civ.P. 23(a). The Supreme Court decision in Wal-Mart "heightened the standards for establishing commonality." M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839 (5th Cir. 2012) (citing Wal-Mart, 564 U.S. at 349-51, 131 S.Ct. 2541). While "any competently crafted class complaint literally raises common questions," commonality goes further and "requires the plaintiff to demonstrate that the class members have suffered the same injury." Id. (citing Wal-Mart, 564 U.S. at 350-51, 131 S.Ct. 2541) (internal quotation marks omitted). It is not enough that all class members "alleg[e] a violation of the same legal provision by the same defendant." Id.

         To establish commonality, plaintiffs must show that " ‘[t]heir claims depend upon a common contention,’ and the common contention ‘must be of such a nature that it is 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. ’ " Ahmad v. Old Republic Nat. Title Ins. Co., 690 F.3d 698, 702 (5th Cir. 2012) (quoting Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541) (emphasis added). If the prospective class can meet this standard, "[e]ven a single common question will do." In re Deepwater Horizon, 739 F.3d 790, 811 (5th Cir. 2014) (quoting Wal-Mart, 564 U.S. at 358, 131 S.Ct. 2541) (internal quotation marks omitted).

         Here, Plaintiffs assert two common questions for classwide resolution: "(1) Did Defendants estimate their damages prospectively before contracting for the late fees? (2) If yes, were the late fees charged ‘a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent’ " as required under Texas Property Code § 92.019(a)(2)? (Mot., Dkt. 126, at 18).

          Plaintiffs assert that "the theory of recovery asserted by the proposed class does not depend on any individual issues," because the legality of Defendants’ uniform policy will determine Defendants’ liability for all proposed class members. (Id. ) In support, Plaintiffs have presented evidence that all prospective class members were subject to and charged under the same late fee policy. (Id. ). They have presented evidence that Defendants used standard form leases with the same late fee policy for all tenants and that Defendants used an automated property management system known as Yardi Voyager for all of their Texas properties. (Id. at 7).

         Defendants counter that commonality fails here because "the only way to determine ... class membership, damages, and other aspects of Plaintiff’s claims is to conduct a tenant-by-tenant review." (Defs.’ Resp., Dkt. 129, at 14). Defendants argue that because the magistrate judge "reconiz[ed] issues that are not ‘common’ between Plaintiffs," this should defeat commonality. (Defs.’ Obj., Dkt. 171, at 18). But the existence of some factual differences among class members will not defeat commonality if there is at least a single common question that " ‘will resolve an issue that is central to the validity of each one of the claims in one stroke. ’ " Ahmad, 690 F.3d at 702 (quoting Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541). The Court agrees with magistrate judge that "the fact that class administration details and damages may be somewhat unique does not disturb the conclusion that Plaintiffs have established commonality." (R. & R., Dkt. 166, at 7). "Even a single common question will do." In re Deepwater Horizon, 739 F.3d at 811 (quoting Wal-Mart, 564 U.S. at 358, 131 S.Ct. 2541) (internal quotations omitted).

          Defendants also object that the magistrate judge "fail[ed] to identify a ‘common contention’ or ‘single question of law or fact’ that is ‘common to the members of the class.’ " (Defs.’ Obj., Dkt. 171, at 18). They are mistaken. The magistrate judge expressly agreed with Plaintiffs that "[w]hether that uniform scheme was lawful is the central question to the validity of each putative class member’s claims." (R. & R., Dkt. 166, at 7). Defendants argue that "[w]hile that may or may not be a ‘common’ question, the problem is that it has little to do with Plaintiffs’ claims." (Defs.’ Obj., Dkt. 171, at 18-19). This is another inaccurate characterization. Plaintiffs’ common question is central to their claim for relief: that Defendants "charged Class members excessive and prohibited late fees for rent in violation of Texas law." (Second Am. Compl., Dkt. 36, ¶ 49).

         The Court finds that Plaintiffs have satisfied the commonality requirement by raising at least one question common to the class: whether Defendant’s uniform, fixed late rent fee— which was applied automatically to all tenants in their Texas properties— violates the Texas Property Code’s requirement that any late fee "is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent." TEX. PROP. CODE § 92.019(a)(2). Answering this question will determine the validity of all proposed class members’ claims "in one stroke." See Ahmad, 690 F.3d at 702 (quoting Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541).

          C. Typicality

         The third requirement of Rule 23(a) is that the representative parties’ claims are "typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a). The "commonality and typicality requirements of Rule 23(a) tend to merge." In re Deepwater Horizon, 739 F.3d at 827 (quoting Wal-Mart, 564 U.S. at 349 n.5, 131 S.Ct. 2541).

          Typicality requires that " ‘the class representative’s claims have the same essential characteristics of those of the putative class." Villagran v. Cent. Ford, Inc., 524 F.Supp.2d 866, 883 (S.D. Tex. 2007) (quoting James v. City of Dallas, Tex., 254 F.3d 551, 571 (5th Cir. 2001) ). " ‘If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.’ " Id.

         Plaintiffs state that "the claims of the proposed class are ‘exactly the same.’ " (Mot., Dkt. 126, at 19) (citing Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999) (affirming typicality where "the proposed class members’ legal and remedial theories appear to be exactly the same") ). Defendants object that Plaintiffs cannot establish typicality because "completely distinct evidence" is required to prove their liability "for certain members of the putative class versus other members." (Defs.’ Obj., Dkt. 171, at 19).⁶ Defendants argue, for example, that some potential class members may have been subject to either a $50 fee or a $75 fee prior to the MAA-Colonial merger. (Id. ). Throughout the class period, some potential class members may have had part of their late fees waived. (Id. ).

6 See Deft.’s Obj., Dkt. 171, at 20 (citing Villagran, 524 F.Supp.2d at 883 ("To the extent that Villagran seeks to represent a class whose members received ‘similar,’ but not ‘identical’ mailings [from creditor], she has failed to show how her claim is typical of the claims of class members who received different mailings."); Martin v. Home Depot U.S.A., Inc., 225 F.R.D. 198, 201 (W.D. Tex. 2004) ("[B]ecause the proof of Plaintiffs’ claims and defenses thereto will be dominated by individual evidence, Plaintiffs’ certification motion does not satisfy Rule 23(a)(3)’s typicality requirement.") (citations omitted); Zachery v. Texaco Expl. & Prod., Inc., 185 F.R.D. 230, 240 (W.D. Tex. 1999) (Finding no typicality in an employment discrimination case where promotion and training decisions would be "by their very nature, individually tailored and thus not ‘typical’ for all class members").

         Defendants’ objections fail because Plaintiffs have established that their claims arise from a similar course of conduct by Defendants. " ‘If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.’ " Villagran, 524 F.Supp.2d at 883 (quoting James, 254 F.3d at 571).

         The Court finds that Plaintiffs have established typicality because their claims arise from a similar course of conduct— Defendants’ process of setting their late fees— and share the same legal theory that Defendants failed to set that fee in accordance with Texas Property Code § 92.019. Moreover, as in Mullen, the proposed class members’ legal and remedial theories are exactly the same. See Mullen, 186 F.3d at 625. All proposed class members claim that Defendants charged them late fees that were not "a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent" as required under Texas Property Code § 92.019, and accordingly seek to recover statutory damages. (Mot., Dkt. 126; Second Am. Compl., Dkt. 36).

          D. Adequacy

         The final requirement of Rule 23(a) is that the representative parties "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). In the Fifth Circuit, "the adequacy requirement mandates an inquiry into (1) the zeal and competence of the representatives’ counsel and ... (2) the willingness and ability of the representatives to take an active role in and control the litigation and to protect the interests of absentees." Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001) (citing Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982) (alterations omitted) ).⁷ As with all Rule 23(a) requirements, the party seeking certification bears the burden of establishing adequacy. Berger, 257 F.3d at 481.

7 Although Berger held that the Private Securities Litigation Reform Act "raises the standard adequacy threshold" in securities fraud class actions, id. at 483, the Fifth Circuit made clear in Berger II that this did not "change the law of this circuit regarding the standard for conducting a [R]ule 23(a)(4) adequacy inquiry" in any other type of class actions. Berger v. Compaq Computer Corp., 279 F.3d 313 (5th Cir. 2002) (per curiam).

          1. Representatives’ Counsel

         Counsel for Plaintiffs have significant experience litigating and settling class actions, including tenant class actions regarding water and late fees. (See, e.g., Weber Decl., Dkt. 126-36; Monts Decl., Dkt. 127-13, at 23). Throughout these proceedings, counsel have demonstrated to the magistrate judge and to the undersigned that they possess "the requisite zeal and competence" to fairly and adequately protect the interests of the class under Rule 23(a). (See R. & R., Dkt. 166, at 9).

         Defendants have repeatedly alleged that Plaintiffs’ counsel improperly solicited Ms. Arellano and Mr. Martinez class representatives. (See Defs.’ Resp., Dkt. 129, at 6-7; Defs.’ Obj., Dkt. 171, at 15-17). Defendants allege that Plaintiffs’ counsel "trolled the internet" and contacted Ms. Arellano after reading her complaint on Yelp regarding MAA’s dog breed policy. (Defs.’ Resp., Dkt. 129, at 6).⁸ Defendants object that this constitutes improper solicitation of Ms. Arellano and Mr. Martinez as clients. Plaintiffs counter that counsel for the Clevens discovered Ms. Arellano’s post on Yelp while counsel were "investigat[ing] the factual basis for the claims denied by the Defendants," and that Ms. Arellano and her partner Mr. Martinez were initially contacted as potential witnesses, only becoming parties after they decided to pursue that role. (Mot., Dkt. 126, at 21). Plaintiffs also note that the first pair of class representatives, the Clevens, were referred to Mr. Monts by his brother, who is a friend and coworker of Cathi Clevens. (Id. at 20-21).

8 In her deposition, Ms. Arellano testified: "Mr. Monts [Counsel for Plaintiffs] sent me an e-mail regarding if I had any experience with late fees with the property and he was looking for— he had a pending case and he wanted to know if we had any experience with that. And I called him because we had. We’ve had several late fees that we had paid and we had— I wanted to know more information. I didn’t know that there was something we could do about it." (Arellano Dep., Dkt. 129-4, at 36).

         The Court is not persuaded that Plaintiffs’ counsel improperly solicited Ms. Arellano and Mr. Martinez. Moreover, the Court is not persuaded that any alleged solicitation would undermine counsel’s "requisite zeal and competence" under Rule 23(a), or the ability of Ms. Arellano and Mr. Martinez to fairly and adequately protect the interests of the class now that they have chosen to serve as class representatives. Defendants cite just one case in support of this objection, Ogden v. AmeriCredit Corp., 225 F.R.D. 529, 535 (N.D. Tex. 2005), where the court listed solicitation as one of several factors that "tend to weigh against a finding of adequacy." The court found Ogden was "not a suitable representative for the putative class" because, among many factors, she "[could] not state how she was harmed" by the defendants’ actions and she could not state "any facts supporting her allegation[s]" against one of the defendants.⁹ This is not comparable to the plaintiffs in this case, who can clearly articulate how they have been harmed and the legal basis for this action. (See Arellano Dep., Dkt. 126-44; Martinez Dep., Dkt. 126-45).

9 "Completely missing is her knowledge of even one fact to support her assumption that T. Rowe Price was involved with, had some control over, or had knowledge of AmeriCredit’s accounting practices and the resulting fluctuation to Ogden’s plan assets." Ogden, 225 F.R.D. at 534.

         This Court concludes that even if Plaintiffs’ counsel did solicit Ms. Arellano and Mr. Martinez, this is outweighed by counsel’s zeal and competence as demonstrated throughout the proceedings before this Court. Even if solicitation were fatal to a plaintiff’s participation in a class, Cathi and Tara Cleven would remain to serve as class representatives. The Court finds that Plaintiffs’ counsel has the necessary "zeal and competence" to fairly and adequately protect the interests of the class under Rule 23(a).

          2. The Class Representatives

         All four proposed class representatives "earnestly seek to remedy what they believe to be a wrong and have a laypersons’ understanding of the claims they are asserting and their duties as class representatives." (Mot., Dkt. 126, at 20; Pls.’ Decls., Dkts. 126-1, -2, -8, -9; Pls.’ Deps., Dkt. 126-44, -45, -46, -47).

         Defendants object that certification based on the proposed class representatives "would reduce Rule 23(a)(4) to utter meaninglessness." (Defs.’ Obj., Dkt. 171, at 15). They argue that the plaintiffs "(1) were solicited by counsel; (2) did not know either of the claims or the definition of the proposed class; (3) did not review either the complaint or the engagement letter; (4) had their counsel draft their declarations; and (5) did not testify at the class certification hearing." (Id. ).

         The Court is not persuaded that all of these factual allegations are true, or that any would defeat adequacy in this action. As noted above, the Court rejects Defendants’ solicitation argument. Regarding Defendants’ assertions that Plaintiffs do not understand this legal action, have not reviewed key filings, and have not participated as appropriate throughout these proceedings, this Court entirely agrees with the magistrate judge: "a review of the complete deposition selections provided ... in connection with this Motion reveal that those depositions have an entirely different timbre than Defendants would have the court believe." (R. & R., Dkt. 166, at 9). Plaintiffs indeed have a layperson’s understanding of the law and their claims that is adequate for them to represent the proposed class. (See Pls.’ Decls., Dkt. 126-1, -2, -8, -9; Pls.’ Deps., Dkt. 126-44, -45, -46, -47). The Fifth Circuit has made clear that "class representatives need not be legal scholars and are entitled to rely on counsel." Berger, 257 F.3d at 483 (quoting Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 410 (W.D. Okla. 1990) ).

         There is also no evidence before the Court of any differences between the named plaintiffs and the potential class members that could create any conflict of interest with the proposed class. See Mullen, 186 F.3d at 625-26 ("Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs’ interests and the class members’ interests.")

         Accordingly the Court finds that all four proposed class representatives exhibit a "willingness and ability ... to take an active role in and control the litigation and to protect the interests of absentees," satisfying the adequacy requirement of Rule 23(a). See Berger, 257 F.3d at 479.

         The Court concludes that Plaintiffs have met the adequacy requirement, satisfying the final requirement for class certification under Rule 23(a). Because Plaintiffs seek to certify a class under Rule 23(b)(3), the Court next considers whether Plaintiffs have satisfied the additional requirements of predominance and superiority.

          E. Predominance

          Rule 23(b) imposes two further requirements for class certification. First, a court must find "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). Predominance "requires the court to assess how the matter will be tried on the merits, which ‘entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class." In re Wilborn, 609 F.3d 748, 755 (5th Cir. 2010) (quoting O’Sullivan v. Countrywide Home Loans, 319 F.3d 732, 738 (5th Cir. 2003) ). "An individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof." Tyson Foods, Inc. v. Bouaphakeo, __ U.S. __, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (citations omitted). The predominance inquiry asks whether common issues are "more prevalent or important" than the non-common individual issues. Id. At its core, the predominance requirement " ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by [class] representation.’ " Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 376 (5th Cir. 2016) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ).

         Plaintiffs submit that their common questions predominate over individual ones because their "sole claim for relief ... turns on questions susceptible to class-wide proof." (Mot., Dkt. 126, at 24). They argue that their common legal question may be decided in "one stroke" by resolving "whether Defendants’ admitted-to practice of charging all Class Members a $75/$10 rent late fee under a uniform scheme violated ... Section 92.019." (Id. at 25). This common legal question turns on two common questions of fact: (1) whether Defendants estimated their damages prospectively before contracting with the proposed class members, and (2) if so, whether that estimate was "a reasonable estimate of uncertain damages" under Section 92.019. (Id. ).

          Defendants object to predominance on several grounds. First, Defendants argue that their liability under the statute requires an individualized inquiry of law and fact for each tenant-plaintiff, which predominates over any classwide question. (Defs.’ Obj., Dkt. 171, at 12-15). For example, Defendants suggest, "Was the initial or any daily late fee waived? Did the tenant or landlord have a counterclaim against the other? Does the landlord have defenses to the tenant’s claim of statutory non-compliance?" (Defs.’ Obj., Dkt. 171, at 12).

         None of Defendants’ questions defeat predominance. First, Defendants fail to acknowledge that the class definition resolves many of these alleged individual questions. For example, the proposed class only includes tenants who were charged a late fee and paid it. (Mot., Dkt. 126, at 3). If Defendants charged a tenant a late fee but later waived it before the tenant paid the fee, that tenant is not part of the class. Regarding possible individual counterclaims or defenses, the Court agrees with the magistrate judge that "the plain language of the statute suggest[s] that such defenses and counterclaims are not permissible." (R. & R., Dkt. 166, at 13).¹⁰ More importantly, Defendants have not identified any plausible individual defenses or counterclaims which could potentially predominate over the classwide question of the legality of the late fees. In their briefing on this motion, Defendants have not identified any specific defenses or counterclaims which might actually predominate, other than listing hypothetical ones. (See Defs.’ Obj., Dkt. 171, at 12). Although Defendants have filed a counterclaim for breach of contract against the proposed class representatives, (Answer and Countercl., Dkt. 103, ¶ 16), this counterclaim does not predominate because it is not "more prevalent or important" than the common question of Defendants’ liability for their late fees.¹¹ Tyson Foods, 136 S.Ct. at 1045. Moreover, in Defendants’ motion for summary judgment, their own theory of the case is entirely based on common evidence. (See Defs.’ Mot. Summ. J., Dkt. 204).¹² The Court rejects Defendants’ objection that individualized issues for each tenant-plaintiff would predominate over classwide liability under the statute.

10 Section 92.019(d) states: "a provision of a lease that purports to waive a right or exempt a part from a liability or duty under this section is void." TEX. PROP. CODE § 92.019(d).

11 Breach of contract is also not a plausible defense in this case. Section 92.019 predicates liability on a late fee being charged pursuant to a written lease. TEX. PROP. CODE § 92.019(a)(1). The statute therefore only applies when a tenant has breached his or her lease and when the tenant consented to the late fee provision by agreeing to the lease. If breach of contract were an applicable defense, it would apply in every instance that a landlord would be liable under Section 92.019 and the statute would be meaningless.

12 Defendants’ arguments on the merits confirm that they advocate a construction of Section 92.019 under which a late fee’s reasonableness is determined not by the quality of a landlord’s prospective estimation of its future damages, but instead by the degree to which the late fee ultimately approximates the landlord’s actual damages. (See Defs.’ Mot. Summ. J., Dkt. 204, at 23-27).

         Defendants next object that the magistrate judge failed to determine whether Section 92.019 requires an "individualized" estimate of damages before charging a late fee for each tenant, and overlooked Plaintiffs’ failure to articulate "exactly how they believe landlords should comply with § 92.019." (Defs.’ Obj., Dkt. 171, at 12). But this is not an accurate characterization of the magistrate judge’s reasoning or Plaintiffs’ submissions. Plaintiffs state in their motion for class certification: "Landlords must estimate their late payment damages before adding a late fee clause to a lease, and failure to do so is a per se violation [of Section 92.019]." (Mot., Dkt. 126, at 15). They also state: "Section 92.019(a)(2) requires an estimate of uncertain damages that must occur prospectively. " (Id. (emphasis added) ). The magistrate judge agreed with this reading of the statute, explaining that the court need not reach the merits of whether an individualized assessment is necessary because "the evidence before the court at this stage suggests that Defendants never engaged in any reasonable estimate of damages." (R. & R., Dkt. 166, at 12 (emphasis added) ).

          This Court agrees. At this stage, Defendants have not introduced any evidence that they conducted an individualized estimate to set the late fee provision in each proposed class member’s lease. The late fee was set according to a standard policy. (Mot., Dkt. 126, at 3; Defs.’ Obj., Dkt. 171, at 9). Whether Defendants set their standard late fee according to an estimate will be true for every proposed class member, or for none of them.

         Defendants object that the magistrate judge overlooked specific evidence that MAA did conduct an estimate before setting the fee. (Defs.’ Obj., Dkt. 171, at 10, 12-13; Mot. Hr’g Tr., Dkt. 161, at 128-33, 143-44 (Maclin testimony) ). Defendants appear to contend that Mr. Maclin’s testimony proves compliance with the statute, thus precluding any common issue of law or fact to establish predominance for a classwide claim. However, even assuming that Defendants did estimate average damages before imposing a the uniform late fee for all tenants, and further assuming that this established compliance with Section 92.019, this again demonstrates that the central dispute in this case is "susceptible to generalized, class-wide proof," Tyson, 136 S.Ct. at 1045, and the proposed class is " ‘sufficiently cohesive to warrant adjudication by representation.’ " Crutchfield, 829 F.3d at 376 (quoting Amchem, 521 U.S. at 623, 117 S.Ct. 2231). The class "will prevail or fail in unison." Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 460, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). The Court concludes that Plaintiffs have raised questions of law and fact common to class members that predominate over any questions affecting only individual members, satisfying predominance under Rule 23(b)(3).

          F. Superiority

         Rule 23(b)(3) also requires a court to find "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). Under this Rule, "matters pertinent to these findings" are (a) "the class members’ interests in individually controlling the prosecution or defense of separate actions"; (b) "the extent and nature of any litigation concerning the controversy already begun by or against class members"; (c) "the desirability or undesirability of concentrating the litigation of the claims in the particular forum"; and (d) "the likely difficulties in managing a class action." Id. The Fifth Circuit has observed that "this list is not meant to be exhaustive and the court has discretion to consider whatever other factors it deems relevant to the determination." In re TWL Corp., 712 F.3d 886, 895-96 (5th Cir. 2013) (citing 7AA Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 1777 (3d ed. 2005) ). Superiority is "necessarily ... a comparative process" of evaluating whether the class mechanism is preferable to individual litigation by class members. In re TWL Corp., 712 F.3d at 896 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998) ). "The procedural device of a Rule 23(b)(3) class action was designed not solely as a means for assuring legal assistance in the vindication of small claims but, rather, to achieve the economies of time, effort, and expense." Castano v. Am. Tobacco Co., 84 F.3d 734, 749 n.27 (5th Cir. 1996) (citation and quotation marks omitted).

         Here, in particular because Plaintiffs have established a common question that is central to Defendants’ liability for potentially thousands of class members, the Court finds that "economies of time, effort, and expense" weigh strongly in favor of a class action over thousands of repetitive individual trials. Even damages in this case would be determined by statute. See TEX. PROP. CODE § 92.019(c). The Court has not seen any reason why individual class members would have an interest in "individually controlling the prosecution ... of separate actions." Fed.R.Civ.P. 23(b)(3).

         Defendants object that this is not a "negative value" case in which the cost of litigating exceeds the value of a successful claim. (Defs.’ Obj., Dkt. 171, at 10). Defendants rely on Ticknor v. Rouse’s Enterprises, L.L.C., 592 Fed.Appx. 276 (5th Cir. 2014), which recognized that "the availability of attorney’s fees and punitive damages is a common basis for finding non-superiority, as the aggregation of claims is not necessary to facilitate suits in such instances." 592 Fed.Appx. at 279 (citations omitted). Although Defendants are correct that aggregation of claims is not strictly necessary for the plaintiffs in this case to recover, Ticknor made clear that this is only one of many factors which a district court may consider in analyzing superiority. The availability of attorney’s fees and punitive damages is "a common basis" to find against superiority, but it is not dispositive. The Fifth Circuit concluded in Ticknor : "Critically important here is the broad discretion enjoyed by district courts regarding certification." Ticknor, 592 Fed.Appx. at 279. This discretion "may lead to disparate results" regarding class certification even in similar cases. Id. ; see also Sistrunk v. TitleMax, Inc., No. SA 14CA628RPHJB, 2016 WL 9450445, at *9 (W.D. Tex. Aug. 26, 2016), report and recommendation approved, No. 5:14-CV-628-RP, 2016 WL 9450689 (W.D. Tex. Nov. 16, 2016) (certifying a class post-Ticknor despite the availability of attorney’s fees when other factors counseled in favor of finding superiority).

         Defendants also object that this case presents "novel claims" which preclude superiority. (Defs.’ Obj., Dkt. 171, at 12-14). They cite Castano v. Am. Tobacco Co., 84 F.3d 734, 738 (5th Cir. 1996), which reversed certification where plaintiffs’ claims raised "a new theory of liability." (Id. ). Defendants argue that this case raises a new theory of liability because " ‘there is no case law interpreting the statute at all.’ " (Defs.’ Obj., Dkt. 171, at 1 (quoting R. & R., Dkt. 166, at 12) ). In Castano, the Fifth Circuit held:

The plaintiffs’ claims are based on a new theory of liability and the existence of new evidence. Until plaintiffs decide to file individual claims, a court cannot, from the existence of injury, presume that all or even any plaintiffs will pursue legal remedies. Nor can a court make a superiority determination based on such speculation.

Castano, 84 F.3d at 747-48. Defendants ask the Court to take from that language the global proposition that a lack of prior individual-claim litigation weighs against finding superiority. (Defs.’ Obj., Dkt. 171, at 12).

         But Defendants distort the magistrate judge’s application of Castano . ¹³ As the magistrate judge correctly observed, Castano was multistate mass tort case that raised complex questions of jurisdiction and causation— factors which are not present here. (See R. & R., Dkt. 166, at 16). Castano proceeded on a "wholly untested" theory of liability for nicotine addiction involving a nationwide class. Castano, 84 F.3d at 737-38. The Castano plaintiffs asserted "eight theories of liability from every state," and the district court had to determine whether variations in state law defeated predominance. Id. at 750. Here, the proposed class definition is limited to Texas tenants, who were charged and actually paid the challenged late fees. (Mot., Dkt. 126, at 3). Although there are thousands of potential class members, there are no complex questions of causation, jurisdiction, or liability here that compare to a mass personal injury class action like Castano . ¹⁴

13 Defendants attempt to argue that the magistrate judge "limit[ed] Castano in such a way as to remove that case from superiority analysis." (Defs.’ Obj., Dkt. 171, at 14).

14 Other cases applying Castano to deny class certification based on "novel claims" have involved complex personal injury claims. See Norwood v. Raytheon Co., 237 F.R.D. 581, 605 (W.D. Tex. 2006) (denying class certification for personal injury suit against designers, manufacturers, and marketers of radar equipment to recover for physical injuries resulting from exposure to x-ray radiation); In re Norplant Contraceptive Prod. Liab. Litig., 168 F.R.D. 577, 578-79 (E.D. Tex. 1996) (denying class certification for products liability action against manufacturer of implanted birth control device).

         Defendants also object that the magistrate judge failed to analyze how the case would be tried. (Defs.’ Resp., Dkt. 171, at 10-11). In evaluating superiority, a district court must consider " ‘how a trial on the alleged causes of action would be tried.’ " Robinson v. Texas Auto. Dealers Ass’n, 387 F.3d 416, 425 (5th Cir. 2004) (quoting Castano, 84 F.3d at 752). In some cases, district courts must consider how a large plaintiff class may be managed. Robinson, 387 F.3d at 425.

         Having considered Plaintiffs’ proposed trial plan, (Pls.’ Proposed Trial Plan, Dkt. 127-14), this Court is persuaded that a single action with multi-phase proceedings would be the simplest and most manageable way to address the issues in this case. As discussed elsewhere in this order and in the report and recommendation, Defendants’ liability can be determined according to conduct that is common to each proposed class member. (See id. at 4-6). As the proposed trial plan sets out, common questions of fact— such as whether Defendants estimated their damages before they set the late fee— can be determined for the entire class through trial, if one is needed. (Id. at 4-5). The Court agrees with Plaintiffs that there are no individual disputes regarding causation, that Plaintiffs will rely primarily on common evidence from Defendants’ property management software, and that "statutory remedies are automatic," thus avoiding the possibility of continued dispute at trial over damages. (Id. at 2-5 (citing TEX. PROP. CODE § 92.019(c) ).¹⁵ The Court also finds that the proposed plaintiff class can be identified and managed through data drawn from the Defendant’s property management software, which Plaintiffs have already begun to prepare. (Pls.’ Proposed Trial Plan, Dkt. 127-14, at 3 (citing Mot., Dkt. 126, at 1-3, 6-12; Selected Yardi Voyager Records, Dkt. 127-8, -9, -10, -11). The Court finds that Plaintiffs’ proposed trial plan is persuasive evidence that class proceedings would be simpler and more efficient than a series of individual trials.

15 The statute provides: "A landlord who violates this section is liable to the tenant for an amount equal to the sum of $100, three times the amount of the late fee charged in violation of this section, and the tenant’s reasonable attorney’s fees." TEX. PROP. CODE § 92.019(c).

         The Court concludes that a class action is superior to other available methods for fairly and efficiently adjudicating this controversy, based on the desirability of concentrating the litigation of claims in a single forum and the difficulties likely to be encountered in the management of a class action. Based on the evidence before the Court at this stage, it appears that Defendants’ liability will turn on questions of statutory interpretation and resolutions of fact disputes that are common to each proposed class member. Through the parties’ considerable litigation of this case, the Court is familiar with the facts of Defendants’ conduct that will be relevant to every proposed class member’s claim. Through this litigation and other recent late-fee cases, this Court is familiar with the legal arguments relevant to Section 92.019.¹⁶ Plaintiffs have satisfied the superiority requirement of Rule 23(b).

16 See Complaint, Brown v. Mid-American Apartments, LP, et al., 1:17-CV-307-RP (W.D. Tex. April 10, 2017); Complaint, Dominguez v. Mid-American Apartment Cmtys., Inc., et al., 1:15-CV-293-RP (W.D. Tex. Apr. 17, 2015).

          G. Ascertainability

          The final requirement for class certification is ascertainability. The Fifth Circuit has interpreted Rule 23 to include an implied prerequisite that the proposed class must be ascertainable. See John, 501 F.3d at 445; see also DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (declining to certify a class of "residents of this State active in the peace movement"). "An identifiable class exists if its members can be ascertained by reference to objective criteria." Conrad v. Gen. Motors Acceptance Corp., 283 F.R.D. 326, 328 (N.D. Tex. 2012).

          Plaintiffs submit that the class is easily and objectively identifiable by conducting standardized searches in Defendants’ property management software, Yardi Voyager, according to the terms of the proposed class. (See Mot., Dkt. 126, at 13-14). The proposed class definition sets out objective criteria limiting the searches, including dates and amounts charged and paid. (Id. at 3).

          Defendants have disputed throughout these proceedings whether Yardi can produce accurate records of late fees both charged and paid. (See, e.g., Mot. Hr’g Tr., Dkt. 161). Defendants object that "both parties’ Yardi experts" testified that the system "does not capture data indicating the identity of individuals who actually paid the assessed late fees," and that "the most accurate way to determine payments and charges is a manual review." (Defs.’ Obj., Dkt. 171, at 20 n.20).

         Neither of these objections defeat ascertainability. First, a defendant may not avoid certification of a class by arguing their business records are not efficiently organized and maintained. See In re Monumental Life Ins., 365 F.3d 408, 417, 419 (5th Cir. 2004) (finding data kept in "defendant’s normal course of business" sufficient to assess class-wide claims); see also Mullins v. Direct Digital, LLC, 795 F.3d 654, 668 (7th Cir. 2015) ("refusing to certify on this basis effectively immunizes defendants from liability because they chose not to maintain records of the relevant transactions"). Even so, Plaintiffs have presented persuasive evidence that Yardi Voyager can indeed produce bulk data to confirm charges and payments for MAA’s late fees. (See Vachhani Dep., Dkt. 127-24, at 59-60; Jewell Dep., Dkt. 127-25, at 44; Nims Dep., Dkt. 127-26, at 48; Fein Dep., Dkt. 127-27, at 50). Even if manual review were necessary to ascertain every member of the class, Plaintiffs have still shown that the class is identifiable by objective criteria. Manual review does not preclude ascertainability. See, e.g., McKeage v. TMBC, LLC, 847 F.3d 992, 999 (8th Cir. 2017), reh’g denied (Oct. 4, 2017), cert. denied, __ U.S. __, 138 S.Ct. 2026, 201 L.Ed.2d 278 (2018) (affirming ascertainability where the district court had required counsel "to hire reviewers to manually inspect each of TMBC’s customer files in order to determine ... the basis for the nationwide class."); Perez v. First Am. Title Ins. Co., 2009 WL 2486003, at *7 (D. Ariz. Aug. 12, 2009) ("Even if it takes a substantial amount of time to review files and determine who is eligible ... that work can be done through discovery."); Mitchell-Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 551, 560 (D. Md. 2006) ("Although the task [of compiling claims data for each class member] may prove to be a laborious one, this court is not persuaded that it is one that cannot be reasonably managed."). The Court overrules Defendants’ objections. Plaintiffs have established ascertainability of their proposed class, and accordingly they have satisfied all requirements under Rule 23(a) and (b) for class certification.

          IV. CONCLUSION

          For the reasons stated above, IT IS ORDERED that Magistrate Judge Lane’s report and recommendation, (Dkt. 166), is ADOPTED. Plaintiffs’ Motion for Class Certification, (Dkt. 126), is GRANTED. Defendants’ objections, (Dkt. 171), are OVERRULED.

         The Court certifies the following class pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(c)(1)(B):

All persons during the Class Period who (i) were residential tenants of apartment properties in the State of Texas under written leases where MAA or its predecessor in merger, Colonial, served as an owner or landlord, and (ii) were assessed and paid an initial rent late fee of $75.00 and/or a daily rent late fee of at least $10.00.

          The class period is defined as April 10, 2013, through September 30, 2017.

          The Class excludes the following persons: (1) the judge(s) assigned to this case and his or her staff; (2) governmental entities; (3) MAA and Colonial and their affiliates; (4) persons adjudged to be bankrupt during the class period; (5) persons who previously released MAA of the claims raised by this case; and (6) persons who abandoned their MAA apartment units without paying rent or who were evicted by MAA for nonpayment of rent. See Mot., Dkt. 126, at 3 n.9.

         The Court appoints Plaintiffs Cathi Cleven, Tara Cleven, Areli Arellano, and Joe L. Martinez as class representatives. The Court appoints Britton D. Monts of The Monts Firm, R. Martin Weber, Jr. and Richard E. Norman of Crowley Norman LLP, Jason W. Snell of The Snell Law Firm, and Stacey V. Reese of Stacey V. Reese Law PLLC as class counsel (collectively, "Class Counsel"), finding that they are adequate after considering the factors provided in Rule 23(g). The Court finds that the class representatives and Class Counsel will fairly and adequately represent the interests of the class.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

         MARK LANE, UNITED STATES MAGISTRATE JUDGE

          TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:

         Before the court is Plaintiffs’ Opposed Motion for Class Certification (Dkt. # 126) and related pleadings.¹ Oral arguments from the parties were heard and evidence was received at a hearing on March 1, 2018. After reviewing the evidence, the pleadings, the relevant case law, as well as the entire case file, the undersigned issues the following Report and Recommendation to the District Court.

          I. BACKGROUND

         Plaintiffs are tenants of Defendants’ residential apartment communities throughout Texas. They seek to certify a class under Rule 23(b)(3). They define the putative class as "all persons during the Class Period who (i) were residential tenants of apartment properties in the State of Texas under written leases where MAA or its predecessor in merger, Colonial, served as an owner or landlord, and (ii) were assessed and paid an initial rent late fee of $75.00 and/or a daily rent fee of at least $10.00." Dkt. # 126 at 3. The Class Period is defined as June 29, 2012 through September 30, 2017. Id. at n.9.

          In 2013, Colonial Property Trust ("Colonial") and Mid-America Apartments ("MAA") merged. Prior to the merger, MAA charged late fees according to a $50/$10 late-fee scheme, where $50.00 was charged as an initial late fee, and a daily rent fee of $10.00 was charged for each additional day late. Pl. Ex. 13 at 24:3-10. Prior to the merger, Colonial generally charged according to a similar scheme, with a $75.00 initial late fee and a $10.00 daily fee. Id. at 39, Pl. Ex. 21 at 5. After the merger, Defendants instituted an across the board $75/$10 late-fee scheme throughout Texas. The late fees are assessed automatically by Defendants’ property management system, Yardi Voyager, beginning shortly after midnight on the fourth date of the month. See, e.g., Pl. Ex. 7.

         Plaintiffs allege there is no evidence that Defendants ever estimated their damages resulting from late-paid rent as a consideration in implementing their late-fee scheme or assessing any late fee paid by a putative class member. Dkt. # 126 at 6 (citing Pl. Ex. 24; Pl. Ex. 13 at 48-49). As a result, they argue the late fees violate Texas Property Code § 92.019, which provides in relevant part that "a landlord may not charge a tenant a late fee for failing to pay rent unless ... the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent." TEX. PROP. CODE § 92.019(a)(2). Id. at 12-13.

          Further, the statute goes on to prescribe the consequences of a violation: "A landlord who violates this section is liable to the tenant for an amount equal to the sum of $100, three times the amount of the late fee charged in violation of this section, and the tenant’s reasonable attorney’s fees." Importantly, the statute states that "a provision of a lease that purports to waive a right or exempt a party from a liability or duty under this section is void."

          This action was originally brought by plaintiffs Cathi Cleven and Tara Cleven, on their own behalf and on behalf of all others similarly situated. Dkt. # 1 at 1. Two additional class representatives, Areli Arellano and Joe L. Martinez were added by way of Plaintiffs’ Second Amended Complaint. Dkt. # 36. The named plaintiffs are all tenants of Defendants. They all signed TAA form leases outlining the late-fee scheme described above. Each has paid rent late and been automatically assessed a fee according to the late-fee scheme by Defendants’ Yardi Voyager management system. Each has paid the late fee. On one occasion, the Clevens were assessed an initial late fee and daily late fees but received a waiver of the initial late fee. Each of these instances is identifiable in Yardi Voyager. Each named plaintiff was deposed by Defendants in advance of the class certification briefing and attended a portion of the March 1 hearing.

          II. THE MOTION FOR CLASS CERTIFICATION

          A. Legal Standard

         Class certification is controlled by Federal Rule of Civil Procedure 23. Rule 23(a) imposes four prerequisites on plaintiff-putative class members seeking certification of a class: (1) numerosity, i.e., a class so large that joinder of all members is impracticable; (2) commonality, i.e., that there are questions of law or fact common to the class; (3) typicality, i.e., that the named plaintiffs’ claims or defenses are typical of those of the class; and (4) adequacy of representation, i.e., that the representatives will fairly and adequately protect the interests of the class. Ackal v. Centennial Beauregard Cellular L.L.C., 700 F.3d 212, 216 (5th Cir. 2012)(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

         Additionally, where, as here, plaintiffs seek class certification under Rule 23(b)(3), they must also demonstrate (1) predominance, i.e., that questions common to the class members predominate over questions affecting only individual members; and (2) superiority, i.e., that class resolution is superior to available methods for fairly and efficiently adjudicating the controversy. Ackal, 700 F.3d at 216 (quoting Feder v. Elec. Data. Sys. Corp., 429 F.3d 125, 129 (5th Cir. 2005).

         Finally, the Fifth Circuit has interpreted Rule 23 to contain an implied prerequisite of ascertainability. "Although the text of Rule 23(a) is silent on the matter, a class must not only exist, the class must be susceptible of precise definition. There can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’ " John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 n.3 (5th Cir. 2007); see also DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

         To determine whether class certification is appropriate, courts "must conduct intense factual investigation," Funeral Consumers All., Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 345 (5th Cir. 2012)(quoting Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 420 (5th Cir. 2004) ), and the "unique facts of each case will generally be the determining factor governing certification." Robinson, 387 F.3d at 421. The party seeking class certification bears the burden of demonstrating that the requirements of Rule 23 have been met. Funeral Consumers All., Inc., 695 F.3d at 345 (quoting O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir. 2003) ).

          B. Analysis of Rule 23(a) Factors

          1. Numerosity

         Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable. To satisfy this requirement, "a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members." Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000)(internal quotations omitted). Leading commentators caution that there is no definite standard as to what size class satisfies Rule 23’s numerosity requirement. See 7A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 1762 (3d ed. 2017 update). By way of example, however, Fifth Circuit has stated that a putative class of 100-150 members is "within the range that generally satisfies the numerosity requirement." Mullen v. Treasure Chest Casino, 186 F.3d 620, 624 (5th Cir. 1999).

         Beyond the number of putative class members, courts may also consider other factors in determining whether joinder of all members is impracticable. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. Unit A 1981). "The geographic dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim" may also be relevant factors in this analysis. Id. (citing Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980) ).

          Here, the evidence demonstrates that the putative class members number in the thousands, with many thousands of individual late charges assessed by Defendants. Pl. Ex. 13 at 105-108; Pl. Exs. 28, 29, 30, 31. Further, at the March 1 Hearing, Defendants’ counsel represented that Defendants do not dispute numerosity. In light of these facts and representations, the putative class members, numbering in the thousands, cannot be practically practicably joined in a single action. Plaintiffs have satisfied the numerosity requirement.

          2. Commonality

         To satisfy Rule 23(a)(2)’s commonality requirement, Plaintiffs must demonstrate that the class claims " ‘depend upon a common contention’ and the common contention ‘must be of such a nature that it is 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.’ " Ahmad v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698, 702 (5th Cir. 2012)(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ). Put differently, there must be a single question of law or fact common to the members of the class. Dukes, 564 U.S. at 369, 131 S.Ct. 2541.

         The threshold for commonality is not high: the Fifth Circuit has recognized that "even a single common question will do." In re Deepwater Horizon, 739 F.3d 790, 811 (5th Cir. 2014)(citations omitted).

         Plaintiffs argue that "the central question in this litigation will be the alleged unlawfulness of the uniform $75/$10 rent late fee charges, in light of the mandate of Section 92.019(a)(2)," stating that because the late-fee formula was a uniform scheme, which did not vary from putative class member to putative class member, the answer to the liability questions also will not vary from one to another, i.e., "the lawfulness of those fees controls Defendants’ liability across the entire Class." Dkt. # 126 at 18.

          Defendants argue that "class membership, damages, and other aspects of Plaintiffs’ claims" must be determined by a tenant-by-tenant review, and therefore, Plaintiffs fail to establish commonality. This argument is flawed for two reasons. First, Defendants ignore the precedent they quote: a common question exists where the answer would "resolve an issue that is central to the validity of each one of the claims in one stroke," just as Plaintiffs explain. All putative class members, by definition, were exposed to the same $75/$10 late-fee formula for at least some part of the class period. Whether that uniform scheme was lawful is the central question to the validity of each putative class member’s claims, and does not require a tenant-by-tenant analysis. Second, Defendants’ continued reliance on the misleading "tenant-by-tenant review" trope is misplaced - even if this were true, the fact that class administration details and damages may be somewhat unique by tenant does not disturb the conclusion that Plaintiffs have established commonality.

          3. Typicality

         In order to meet the typicality requirement, "the claims or defenses of the parties [must be] typical of the claims or defenses of the class." FED. R. CIV. P. 23(a)(3); see Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999). Like commonality, the test for typicality is "not demanding." Mullen, 186 F.3d at 625. Typicality focuses on "the similarity between the named plaintiffs’ legal and remedial theories and the legal and remedial theories of those whom they purport to represent." Lightbourn v. Cnty. of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). "Typicality does not require identity of claims but does require that ‘the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.’ " Villagran v. Central Ford., Inc., 524 F.Supp.2d 866, 883 (S.D. Tex. 2007)(quoting James v. City of Dall., 254 F.3d 551, 571 (5th Cir. 2001), abrogated on other grounds by M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839-41 (5th Cir. 2012) ).

         Here, there may be some differences in the exact fact patterns of Plaintiffs and putative class members. Some may have been residents for the entirety of the Class Period, and some for only a portion of the Class Period. Some may have lived at properties at which the post-merger rates of the uniform late-fee scheme was in effect for the entire class period, some at properties where the scheme was in effect for only part. Some may have paid a late fee on more occasions than others. Such variations are not meaningful differences in light of the class definition proposed by Plaintiffs. They do not make Plaintiffs’ claims atypical of the class members’ claims. Plaintiffs’ claims and those of the putative class members arise from common conduct: a uniform late-fee scheme was in effect for their leases and they were automatically charged by Defendants’ property management system according to that scheme when their rent was not timely paid. Along the same lines, the class claims all share Plaintiffs’ legal theory: that the assessment by Defendants of such a late fee without an estimation of damages to provide a reasonable basis for the fee is a violation of Texas Property Code § 92.019. Plaintiffs have satisfied the typicality requirement.

          4. Adequacy

         In the Fifth Circuit, the adequacy requirement "mandates an inquiry into (1) the zeal and competence of the representatives’ counsel and the willingness and ability of the representatives to take an active role in and control the litigation and to protect the interests of absentees." Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001)(citing Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 474 (5th Cir. 1982) (alterations omitted) ). See also Berger v. Compaq Computer Corp., 279 F.3d 313, 313 (5th Cir. 2002) (per curiam)(denying petition for panel rehearing and clarifying that its Berger opinion, supra, 257 F.3d 475, had not "changed the law of this circuit regarding the standard for conducting a rule 23(a)(4) adequacy inquiry").           i. Class Counsel

          Defendants argue that this is a lawyer-driven suit in which Plaintiffs’ counsel inappropriately solicited and recruited the class representatives. They also question the adequacy of Plaintiffs’ counsel based on interactions surrounding recent depositions. Dkt. # 129.

         Without addressing the interactions surrounding recent depositions, which appear on the whole to paint Defendants’ counsel with the same brush they attempt to wield against Plaintiffs’ counsel, Plaintiffs’ counsel have set forth evidence, and demonstrated to the court throughout this litigation to date, that they have the requisite zeal and competence required by Rule 23. See, e.g., Pl. Exs. 33; 34. The undersigned recommends appointing Plaintiffs’ counsel as class counsel.

          ii. Class Representatives

         Defendants argue that the representatives "do not possess any level of knowledge and understanding of the claims they are bringing on behalf of a putative class to be capable of controlling or prosecuting the litigation." Dkt. # 129 at 16. To support this contention, they pluck choice excerpts from the putative class representatives’ depositions. In brief, a review of the complete deposition selections provided to the court in connection with this Motion reveal that those depositions have an entirely different timbre than Defendants would have the court believe. The representatives, who appeared for a substantial portion of the class certification hearing, are certainly neither lawyers nor as visibly outraged as Defendants suggest is required.² Yet they have a layperson’s understanding of their claims, an understanding of the nature of a class action, and appear to be motivated to serve as class representatives by a genuine desire to advance the shared interests of other tenants who were subjected to the Defendants’ allegedly unlawful late fee scheme. See generally Pl. Exs. 42-45; 1, 2, 8, and 9.

         As to the argument that the representatives were merely solicited by class counsel or referred by family members, the undersigned is not persuaded. As with Defendants’ other arguments, even if the court agrees with Defendants’ characterization of Plaintiffs’ relationship with class counsel, while solicitation can weigh against a finding of adequacy, it is not dispositive. see Ogden v. AmeriCredit Corp., 225 F.R.D. 529, 535-36 (N.D. Tex. 2005). Further, the narrative revealed in the representatives’ testimony, in sum, does not "raise doubt as to [their] willingness and ability to take an active role in and control the litigation." See id. (citing Berger, 257 F.3d at 479) ). The class representatives have satisfied the adequacy requirement.

          C. Analysis of Rule 23(b)(3) Factors

         Plaintiffs satisfy the Rule 23(a) factors, but because Plaintiffs seek to certify a class under Rule 23(b)(3), they must satisfy its additional requirements, too. Rule 23(b)(3) requires that Plaintiffs demonstrate both that questions common to the class members predominate over questions affecting only individual members, and that class resolution is superior to alternative methods for adjudication of the controversy. Tyson Foods, Inc. v. Bouaphakeo, __ U.S. __, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016).

          1. Predominance

         The predominance inquiry tests "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ). It "asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though some other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members." Id. (citing 2 W. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 4:50, pp. 196-97 (5th ed. 2012) and 7 AA CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1778, pp. 123-24 (3d ed. 2005) )(internal quotations and citations omitted).

         Plaintiffs argue that "the central question in this litigation will be the alleged unlawfulness of the uniform $75/$10 rent late fee charges, in light of the mandate of Section 92.019(a)(2)," stating that because the late-fee formula was a uniform scheme, which did not vary from putative class member to putative class member, the answer to the liability questions also will not vary from one to another, i.e., "the lawfulness of those fees controls Defendants’ liability across the entire Class." Dkt. # 126 at 18. Further, they argue, "while the quantum of class members’ statutory damages will depend on how many days late they paid, individualized damage questions do not prevent certification." Id. at 23. Finally, they argue that the calculation of these damages is mechanical and does not require individual decisions and that "even wide disparity among class members as to the amount of damages does not preclude class certification." Id. at 26 (citing In re Deepwater Horizon, 739 F.3d 790, 815 (5th Cir. 2014) ). They further urge that Defendants’ multiple affirmative defenses are not individualized and can be resolved "in one move" for all class members. Id. at 25.

          In response, Defendants continue to attempt to convince the court that "it is simply not possible− through Yardi or otherwise− to determine who actually paid an assessed late fee, or whether a late fee was actually paid, without individually examining each late fee assessed" and that therefore, Plaintiffs have not established predominance. The court’s skepticism of the Yardi premise, in light of the overwhelming expert testimony that it is in fact possible to extract in bulk the data that answers these questions, is discussed in detail in its discussion of ascertainability, infra, but Defendants’ argument is similarly unavailing here.

          Defendants argue that because Plaintiffs have stated the statute necessarily requires a prospective reasonable estimate of damages, an individualized assessment is necessary for each putative class member. The court need not reach the merits of this statement at this time, because even if the statute requires such an individualized assessment, the evidence before the court at this stage suggests that Defendants never engaged in any reasonable estimate of damages. Thus, where Defendants can point to no instance of estimation, the individualized assessment is complete.

         Defendants rely on O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732 (5th Cir. 2003), arguing that it "mandates denial of certification." Dkt. # 29 at 18. This characterization goes too far, as O’Sullivan can be distinguished. O’Sullivan turned on the Department of Housing and Urban Development’s reasonable relationship test and policy statements by the agency suggesting that test requires an inherently particularized two-part inquiry: (1) whether a lender provided goods or services in connection with the particular transaction, and (2) whether the lender’s compensation was reasonably related to the value of those goods or services. Here, there is no such particularized inquiry mandated by the statute, neither is there any agency policy statement supporting such a construction. Indeed, as Defendants emphasize, see, e.g., Def. Resp. Brief, Dkt. # 29 at 15, there is no case law interpreting the statute at all.

         On the facts before the court, O’Sullivan is potentially analogous at best. see In re Monumental Life Ins. Co., 365 F.3d 408, 419 & n.19 (explaining that O’Sullivan turned on the extent to which individual plaintiffs were exposed to the unauthorized practice of law). Here, it is straightforward that putative class members were charged at least one late fee according to the 10% late fee scheme. No complicated individualized harm analysis is necessary.

         Further, Defendants argue their defenses and counterclaims require individualized inquiry, but fail to address the plain language of the statute suggesting that such defenses and counterclaims are not permissible.³ Their permissibility can be determined on a class-wide basis. Defendants fail to convince the undersigned that if those affirmative defenses and counterclaims may go forward and require individual analysis, that these questions are more prevalent or important than the class-wide issues.

          For all of these reasons, Plaintiffs have successfully demonstrated that questions common to the class members predominate over questions affecting only individual members.

          2. Superiority

         Rule 23(b)(3)’s superiority requirement asks whether "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." FED. R. CIV. P. 23(b)(3). "As is the case with Rule 23(b)(3) generally, the superiority analysis is fact-specific and will vary depending on the circumstances of any given case." Robertson v. Monsanto Co., 287 Fed.Appx. 354, 361 (5th Cir. 2008)(citing 7AA CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1783(3d ed. 2005) ).

         The four factors that address superiority are: (1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. FED. R. CIV. P. 23(b)(3).

         As to the first and second factor, Plaintiffs argue that "the existence of a negative value suit" is "[t]he most compelling rationale for finding superiority." see Castano v. Am. Tobacco Co., 84 F.3d 734, 738 (5th Cir. 1996). They argue this case "is a classic negative value suit" in which each putative class member "suffered relatively minimal damages." Dkt. # 126 at 29. They note that no absent class members have evidenced interest in separate actions and that no other litigation (other than the Brown case, which concerns another part of MAA’s apartment portfolio) involves this controversy.

         In response, while apparently conceding that no other cases involving this controversy or statute exist, see Dkt. # 129 at 30, Defendants argue that the statute incentivizes individual lawsuits through the availability of treble damages, a $100 penalty, and attorney’s fees. As a result, they argue, this is not a negative-value suit. In support of this position, Defendants rely primarily on the Fifth Circuit’s decision in Ticknor v. Rouse’s Enters. L.L.C., 592 Fed.Appx. 276 (5th Cir. 2014).

         In Ticknor, the Fifth Circuit affirmed the trial court’s denial of certification on the basis of predominance and superiority, noting that the availability of attorney’s fees and punitive damages is a "common basis for finding non-superiority, as the aggregation of claims is not necessary to facilitate suits in such instances." Id. at 278. This decision, which Defendants argue is "[s]quarely on point for these purposes," went on to state that the broad discretion enjoyed by district courts regarding certification was "critically important" to its decision, and noted that that broad discretion may lead to disparate certification results, observing that courts had both certified and declined to certify classes like the one at issue in Ticknor . Thus, while the availability of attorney’s fees, treble damages, and a $100 penalty is a factor to consider, Ticknor does not stand for the proposition that it is dispositive of the superiority determination. See Sistrunk v. TitleMax, Inc., 5:14-CV-628-RP, Dkt. # 213 at 19-20 (W.D. Tex. Aug. 26, 2016). On balance, the first two factors weigh in support of certification.

          As to the third factor, the desirability of concentrating the litigation of claims in the particular forum, Plaintiffs argue that judicial efficiency− both because of the potential number of individual cases if the class is not certified and the "considerable energy" the court has already spent developing familiarity with the Statute and the parties− make this forum desirable and well-suited to adjudicate the putative class’s claims. Defendants do not respond to Plaintiff’s arguments regarding forum. The undersigned finds Plaintiffs’ arguments persuasive and finds that this favor weighs in favor of certification.

          The fourth factor is a closer call. Defendants’ arguments as to the ascertainability of putative class members gain more mileage as manageability arguments, and Defendants’ critique that the class definition proposed by Plaintiffs is not "a model of clarity" is somewhat persuasive. Nevertheless, the undersigned considers all the arguments, expert testimony (particularly as to the capabilities of a bespoke Yardi query to aggregate the necessary data), and other evidence before the court. Given the near uniformity of the allegations and the common evidence to be used to prove them, a single proceeding is the simplest and most manageable way to address the issues in this case.

         Finally, Defendants argue that superiority should be defeated by the "lack of track record" regarding Section 92.019, that is, that because no prior case-state or federal− has interpreted the statute, class certification is inappropriate. In support of this proposition, they cite Castano and Norwood . Each is distinguishable.

         Castano was a multistate, mass tort case involving various state tort laws with a class period spanning 50 years. It was described by the Fifth Circuit as perhaps "the largest class action ever attempted in federal court." The Fifth Circuit held that the district court had erred in failing to address the conflicts of law present in the case and "to consider how variations in state law affect predominance and superiority." Id. at 740. The Fifth Circuit stated that: "here, we cannot say that it would be a waste to allow individual trials to proceed, before a district court engages in the complicated predominance and superiority analysis necessary to certify a class." Id. at 748 (citing MANUAL FOR COMPLEX LITIGATION § 33.26 ("Fairness may demand that mass torts with few prior verdicts or judgments be litigated first in smaller units ... until general causation, typical injuries, and levels of damages become established.") ).

         Likewise, the trial court in Norwood, another multistate, mass tort case, found that superiority was lacking because the suit was not a negative value suit and had multiple manageability problems, including "numerous variations in state law, many of which could lead to conflicts." Norwood v. Raytheon Co., 237 F.R.D. 581, 605 (W.D. Tex. 2006). Its statement that the absence of prior verdicts or judgments "based on injuries caused by ionizing radiation emitted by radars" in the mass tort case was linked to its statement that "future individual adjudications may result in more manageable choice-of-law and predominance inquiries." Id.

         Primarily, the Castano and Norwood courts were concerned that certification was not appropriate when test cases had not gone forward to flesh out matters of causation determinations under various state laws. Here, there is one Texas statute that the court must interpret to adjudicate the claims for a group of Texans that resided at apartment complexes and paid fees pursuant to a particular late fee scheme over a relatively short time period. There is no conflict of laws, there is no causation determination to be made, and there is no variation in type of injury. The concerns of Norwood and Castano are not present in this case.

         In sum, the factors set forth in Rule 23(b)(3), taken as a whole, demonstrate that Plaintiffs have established the superiority of a class action in this matter and Defendants have raised no concern that otherwise defeats superiority.

          D. Ascertainability

         "It is elementary that in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable." DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)(declining to certify a class of "residents of this State active in the peace movement"). "The existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite" of Rule 23. John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007)(citations omitted). Rule 23 requires that an identifiable class must exist, and a class is identifiable if its members can be ascertained by reference to objective criteria. Id.; see also Conrad v. Gen. Motors Acceptance Corp., 283 F.R.D. 326, 328 (N.D. Tex. 2012)(citations omitted).

          Over the six months preceding the March 1 hearing, the parties expended significant effort in discovery as to the ascertainability of the putative class, specifically to explore the capabilities of the Yardi Voyager software and its underlying database in revealing which of Defendants’ tenants or former tenants may be putative class members. See Dkt. # 129 at 7 ("The parties collectively disclosed seven experts on these issues, each of whom has now been deposed."). As a result, there is now significant clarity in the record before the court on this issue.

          Plaintiffs propose a class made up of "[a]ll persons during the Class Period who (i) were residential tenants of apartment properties in the State of Texas under written leases where MAA or its predecessor in merger, Colonial, served as an owner or landlord, and (ii) were assessed and paid an initial rent late fee of $75.00 and/or a daily rent late fee of at least $10.00." The Class Period is defined by Plaintiffs as June 29, 2012 through September 30, 2017, and has certain exclusions, e.g., the court and its staff, persons who abandoned their MAA apartment units, etc.

          Defendants use data management software called Yardi Voyager. Yardi Voyager sits atop a standard Microsoft SQL database that can be directly queried "behind the tenant ledger." According to Plaintiffs’ experts it can "accurately portray, on a complex-wide or statewide basis, all rent late fee charges, and the payments or credits offsetting those charges, for a particular tenant" without resorting to an individual tenant-by-tenant review of the tenant ledger displayed through Yardi Voyager’s out-of-the-box capabilities. This is possible because late fees are coded using one of three late fee codes, and because waived late fees and receipts of late fees are also tracked within the system.

          Nevertheless, Defendants argue that Plaintiffs have not alleged an identifiable class, contending that Yardi Voyager and its underlying database cannot reveal "who actually paid" a late fee nor "yield sufficient accuracy to determine whether an assessed late fee was actually paid." Dkt. # 129 at 10. Put differently, Defendants urge the court not to certify the proposed class because some putative class members’ payment sources may be unclear. Also, they believe their own business data is not accurate due to potential manual entry errors, and therefore the data collected cannot reach an accuracy rate of 100%. They further argue that manual assessment would be more accurate than the Yardi extraction method proposed by Plaintiffs and explored during this extended discovery period, and that therefore the class is not ascertainable. Finally, they cite the inability of Yardi to reveal which MAA tenants that might otherwise be part of the putative class are excluded due to eviction or bankruptcy as a reason why Plaintiffs’ proposed class is ascertainable.

          Simply put, Defendants arguments are not compelling. Defendants’ own IT employee Altig confirms that the data is available to show receipts or charges allocated against an existing charge. Pl. Ex. 56. Further, testimony confirms that the data necessary to confirm charges and payments is stored by Yardi Voyager and its underlying database and can be extracted in bulk. See Pl. Ex. 52 at 187:9-21; Pl. Ex. 53 at 194:15-24, Pl. Ex. 50 at 230:3-22, and Pl. Ex. 51 at 192:11-196:8. Further, Defendants’ exclusion concerns are not compelling: tenants who would otherwise be members of the class but who were evicted, declared bankruptcy, or signed releases can be easily identified and excluded. The proposed class meets the ascertainability standard.

          III. RECOMMENDATION

          The undersigned RECOMMENDS that the District Court GRANT Plaintiffs’ Motion for Class Certification (Dkt. # 126).

          IV. OBJECTIONS

         The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. see Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

         A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).

          SIGNED May 22, 2018.