Case: 1:19-cv-00133-DRC Doc #: 155-1 Filed: 02/12/21 Page: 1 of 16 PAGEID #: 3194

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

COMPOUND PROPERTY :
MANAGEMENT LLC, et al., : Case No. 1:19-CV-00133
:
Plaintiffs, :
: Judge Douglas R. Cole
v. :
:
BUILD REALTY, INC. dba GREENLEAF :
FUNDING, et al., :
:
Defendants. :

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS

CERTIFICATION AND APPOINTMENT OF CLASS REPRESENTATIVES
AND CLASS COUNSEL

I. THE PROPOSED CLASS

This is a proposed class action brought by five Build investors on behalf of other Build

investors who were all similarly injured by the Build Scheme1 in which Defendants are involved.

In violation of federal and Ohio law, Defendants engaged or conspired to engage in a pattern of

deceptive transactions that had the intended effect of damaging Plaintiffs and putative Class

Members in similar fashion, by causing them to invest their monies in real estate transactions that,

in material and consistent respects, were fraudulent. Certification is appropriate under Rule 23 and

will enable the Court to conduct an efficient, readily-manageable adjudication of the class claims.

The named plaintiffs – Compound Property Management, LLC, Leone 1, LLC, R & G

Investments, LLC, Pyramid Investment Group, LLC, and Ratio Models, LLC (collectively

“Plaintiffs”) – propose that the class be defined as follows:

1
Capitalized terms used have the same meaning as set forth in the operative Complaint (Doc. 1).
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Plaintiffs and all other persons and entities in Ohio and Kentucky,
individually and collectively, that invested in real property and were
named as beneficiaries to a trust created through an unlawful real
estate transaction engaged in by, through, or with any of the
Defendants named herein, using the Build Scheme further described
and defined herein, for the longest period allowed by law (the
“Class”).

Plaintiffs further propose the following subclass:

Members of the Class that had their properties reclaimed and resold
as a result of default, without access to judicial foreclosure
proceedings and the opportunity to redeem, and without receiving
the excess proceeds (if any) upon subsequent sale of the property by
Build.

Complaint, Doc. 1, PageID # 48, ¶ 138. Plaintiffs propose that the Class and Subclass exclude all

officers and directors, and current or former employees and/or agents, as well as any immediate

family members thereof, of Defendants and their parents, subsidiaries, and affiliates. Id., PageID

# 49, ¶ 139.

Plaintiffs are all Ohio limited liability companies with their principal place of business in

Hamilton County, Ohio. Plaintiffs request that they be appointed class representatives or, if

necessary, that they be given leave to propose suitable substitute representatives subject to court

approval, and that the law firms of Finney Law Firm, LLC and Markovits, Stock & DeMarco, LLC

be appointed class counsel.

II. ARGUMENT

A. THE COURT SHOULD CERTIFY THIS LAWSUIT AS A

CLASS ACTION PURSUANT TO RULE 23 OF THE FEDERAL
RULES OF CIVIL PROCEDURE
The United States Supreme Court has held that “[c]lass actions serve an important function

in our system of civil justice ....” Gulf Oil v. Bernard, 452 U.S. 89, 99 (1981). The Sixth Circuit

favors class actions as a means to achieve “economies of time, effort and expense.” Sterling v.

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Velsicol Chem. Corp., 855 F.2d 1188, 1196 (6th Cir. 1988); cf. In re Am. Med. Sys., Inc., 75 F.3d

1069 (6th Cir. 1996). The Court has broad discretion in determining whether a particular case may

proceed as a class action, although that discretion must be exercised within the framework of Rule

23. In re Am. Med. Sys., 75 F.3d at 1079.

“In determining the propriety of a class action, the question is not whether the plaintiff or

plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the

requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)

(quotation omitted); accord Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974).

The Court should consider “only those matters relevant to deciding if the prerequisites of Rule

23 are satisfied” and “may not ‘turn the class certification proceedings into a dress rehearsal for

the trial on the merits.’” In re Whirlpool Corp. Front–Loading Washer Prod. Liab. Litig., 722 F.3d

838, 851–52 (6th Cir. 2013) (quoting Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811

(7th Cir. 2012) and citing Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 464-66

(2013)); see also Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007); Daffin v. Ford

Motor Co., 458 F.3d 549, 553–54 (6th Cir. 2006); Rikos v. Procter & Gamble Co., No. 1:11-cv-

226, 2014 WL 11370455, at *3 (S.D. Ohio June 19, 2014).

“To be certified, a class must satisfy all four of the Rule 23(a) prerequisites—numerosity,

commonality, typicality, and adequate representation—and fall within one of the three types of

class actions listed in Rule 23(b).” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir.

2012) (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc)). “The

party seeking class certification has the burden to prove the Rule 23 certification requirements.”

Young, 693 F.3d at 537. “In order to certify a class, the Court must consider the factors of Fed. R.

Civ. P. 23(a) and at least one of the factors of Fed. R. Civ. P. 23(b).” In re Am. Med. Sys., 75 F.3d.

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at 1079. Before certifying a class, the Court must conduct a “rigorous analysis” into whether the

prerequisites of Rule 23 are met. Id. at 1078-79 (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161

(1982)). All requirements for class certification are met in this case.

1. The Class is Ascertainable

A prerequisite to Rule 23(a) determinations is a finding by the Court that the putative class

is sufficiently defined. In Young, the Sixth Circuit held “[t]he class definition must be sufficiently

definite so that it is administratively feasible for the court to determine whether a particular

individual is a member of the proposed class.” 693 F.3d at 537-38 (quotation omitted).

“Ultimately, this Court’s duty is to ensure the proper exercise of Rule 23. That duty includes the

obligation to create a new definition sua sponte if the parties’ own proposals are not adequate or

accurate.” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 302 F.R.D. 448, 462–

63 (N.D. Ohio 2014).

In this case, the proposed Class and Subclass are both sufficiently ascertainable.

Defendants themselves have the documentation necessary to identify members of both, and there

is no ambiguity that would make identification of members of the proposed Class and Subclass

administratively infeasible. The proposed Class and Subclass are defined with sufficient precision

to allow the parties, the Court, and any Build investors to determine Class or Subclass membership

with certainty.

2. The Requirements of Rule 23(a) Are Satisfied

The numerosity, typicality, commonality, and adequacy of representation requirements of

Rule 23(a) are satisfied in this case.

a. Numerosity
Under Rule 23(a)(1), the class must be “so numerous that joinder of all members is

impracticable ….” Fed. R. Civ. P. 23(a)(1). A strict test does not exist. Rather, the “numerosity”

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requirement compels a case-by-case analysis. Ilhardt v. A.O. Smith Corp., 168 F.R.D. 613, 617

(S.D. Ohio 1996) (no strict numerical test exists to determine when a class is so numerous that

joinder is impracticable). In Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506

(S.D. Ohio 1985), the court held that as few as 23 class members satisfied the requisite numerosity.

The Sixth Circuit has held that a class of 35 or more members is sufficient to meet the numerosity

requirement. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1076 (6th Cir. 1996) (citing Afro Am.

Patrolmen’s League v. Duck, 503 F.2d 294 (6th Cir.1974)). The number of bilked investors in this

case is in the hundreds, satisfying numerosity. Complaint, Doc. 1, PageID # 8, ¶ 17.

b. Commonality
Rule 23(a)(2) requires a showing that there are “questions of law or fact common to the

class ....” Fed. R. Civ. P. 23(a)(2). To satisfy commonality, Plaintiffs’ “claims must depend on a

common contention ... 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.” Young, 693 F.3d at 542 (ellipsis in original) (quoting Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 350, (2011)). “[T]here need be only one common question to

certify a class.” In re Whirlpool Corp., 722 F.3d at 853; see also Dukes, 564 U.S. at 359 (“We

quite agree that for purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will do.”)

(alternations in original) (citations omitted); Sterling, 855 F.2d at 1197 (“[T]he mere fact that

questions peculiar to each individual member of the class remain after the common questions of

the defendant’s liability have been resolved does not dictate the conclusion that a class action is

impermissible.”).

A common question of law or fact exists when it can be shown that all class members

suffered the same injury. Dukes, 564 U.S. at 349–50. “Their claims must depend upon a common

contention ... capable of classwide resolution — which means that determination of its truth or

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falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

Id. at 350. Furthermore, “[w]hen the legality of the defendant’s standardized conduct is at issue,

the commonality factor is normally met.” Castellanos v. Worldwide Distrib. Sys. USA, LLC, No.

2:14-cv-12609, 2016 WL 11678220, at *6 (E.D. Mich. June 20, 2016) (alteration in original)

(quotation omitted) (certifying RICO class action).

In this case, the common factual and legal issues include whether the Defendants conspired

to and did engage in a pattern of deceptive acts and practices in the Build Scheme. This was

standardized conduct, with a common question being whether such conduct is illegal and/or

unlawful. The Defendants used the same packets of documents (previously provided to this Court,

Doc. 117), and engaged in the same pattern of misconduct including, inter alia: (a) misrepresenting

that they were passing along a discount on the property price to Class Members when they were

in fact marking the price up (Complaint, Doc. 1, PageID # 4, 24-25, 30, ¶¶ 5, 52, 54); (b) failing

to disclose the “points” and interest rate markup on the loaned money (id., PageID # 24-25, ¶ 54);

(c) having Class Members sign a purchase contract stating that they will take legal title in their

LLC name “by deed of limited warranty,” but then putting the property at issue into a trust

completely controlled by Defendants, all without effectuating any assignment of the right to buy

the properties (id., PageID # 5, ¶ 6); (d) claiming that Class Members would be making a $10,000

“down payment,” when instead that amount went toward manipulated and fraudulent closing costs

(id., ¶ 7); (e) claiming Class Members will not be the subject of a credit check, but then billing

them for a credit check (id., ¶ 8); (f) forcing Class Members into trust transactions where they

unknowingly are deprived of rights of redemption and rights to excess proceeds in contravention

of the form Contract to Purchase (id., PageID # 5-6, ¶ 9); (g) knowingly charging Class Members

costs and fees that the Contract to Purchase did not allocate to them (id., PageID # 6-7, 25-26, 30,

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¶¶ 11, 57-58, 75-76); (h) consistent misuse of escrowed monies entrusted to Defendants (id.,

PageID # 7, ¶ 12); (i) use of fraudulent and photoshopped checks, certified checks, and bank

statements to effectuate the buy side transactions (id., PageID # 28, ¶ 69); and (j) consistently false

HUD-1 certifications by Build Realty and First Title. Id., PageID # 31-33, ¶¶ 82-86.

Therefore, commonality is met.

c. Typicality
Rule 23(a)(3) requires that “claims or defenses of the representative parties [be] typical of

the claims or defenses of the class ….” Fed. R. Civ. P. 23(a)(3). This component of Rule 23 assures

that the named representatives’ interests align with those of the class. In re Am. Med. Sys., 75 F.3d

at 1082. The commonality and typicality requirements are closely related in that they each serve

to assist in the determination of whether the claim of the named plaintiff and those of the class are

so interrelated that the interests of the absent class members will be protected. See Falcon, 457

U.S. at 157 n.13.

“Rule 23(a)(3) typicality ‘determines whether a sufficient relationship exists between the

injury to the named plaintiff and the conduct affecting the class, so that the court may properly

attribute a collective nature to the challenged conduct.’” Stout v. Byrider, 228 F.3d 709, 717 (6th

Cir. 2000) (quoting Sprague, 133 F.3d at 399). The typicality requirement focuses on the type of

injury suffered by the class members and the interests of the various class members. Senter v. Gen.

Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). A named plaintiff’s claim is considered to be

typical “if it arises from the same event or practice or course of conduct that gives rise to the claims

of other class members, and if his or her claims are based on the same legal theory.” In re Am.

Med. Sys., 75 F.3d at 1082 (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class

Actions, § 3-13, at 3–76 (3d ed. 1992)). The typicality requirement may be satisfied even if there

are factual distinctions between the claims of the named plaintiffs and those of other class

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members. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); Senter, 532

F.2d at 525 n. 31. While a representative’s claims need not mimic the claims of every class

member, to satisfy typicality the named plaintiff must advance the interests of the class members.

In re Am. Med. Sys., 75 F.3d at 1082; Ilhardt, 168 F.R.D. at 618.

In this case, all of the named plaintiffs’ claims are typical in that Plaintiffs and all members

of the Class suffered injury resulting from the Build Scheme, and all are asserting the same legal

theories as a result. All of them were victims, for example, of the ten fraudulent aspects of the

Build Scheme previously described when discussing commonality. In prosecuting their claims

against Defendants, the named Plaintiffs will simultaneously advance the Class’s interests.

Therefore, typicality is satisfied.

d. Adequacy of Representation
Rule 23(a)(4) requires that the representative parties fairly and adequately protect the

interests of the class. According to this circuit’s two-pronged adequacy-of-representation test: “1)

[T]he representative must have common interests with unnamed members of the class[;] and 2) it

must appear that the representatives will vigorously prosecute the interests of the class through

qualified counsel.” Young, 693 F.3d at 543. These two requirements are designed to uncover and

prevent “conflicts of interest among the named parties and the class they seek to

represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, (1997).

In this case, Plaintiffs share a common interest with the Class Members, such that no

conflict of interest exists between their interests and those of other Class Members. Ilhardt, 168

F.R.D. at 619; In re Am. Med. Sys., 75 F.3d at 1082. Each Plaintiff has stated that it will vigorously

prosecute the interests of the Class. Declaration of Christopher P. Finney, Exhibits A-E. Plaintiffs

will do so through qualified counsel: the Finney Law Firm, LLC and Markovits, Stock &

DeMarco, LLC have significant combined experience with respect to the real estate, fiduciary,

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RICO, and class action issues at the heart of this lawsuit. See id.; see also Declaration of W.B.

Markovits.

The undersigned lawyers, serving as proposed Class counsel, are well-suited to represent

the interests of the proposed Class. Rule 23(g)(1) provides that, “[u]nless a statute provides

otherwise, a court that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1). In

evaluating proposed class counsel, the Court should consider the work counsel have done in

identifying or investigating potential claims in the action; counsel’s experience in handling class

actions, other complex litigation, and claims of the type asserted in the action; counsel’s

knowledge of the applicable law; and the resources that counsel will commit to representing the

class. Fed. R. Civ. P. 23(g)(1)(A). Here, the named Plaintiffs’ counsel have worked extensively

for several years to investigate and prosecute the claims on behalf of the named Plaintiffs and the

putative Class Members and are fully prepared to commit the resources necessary to carry this

matter to conclusion. Furthermore, the named Plaintiffs’ counsel have experience in handling real

estate and fiduciary matters, as well as class actions and complex litigation. They are fully qualified

to prosecute the claims asserted in this action. See Declaration of Christopher P. Finney, Exhibit

F; Declaration of W.B. Markovits, Exhibit A.

The adequacy requirements of Rule 23(a)(4) and 23(g) are satisfied in this case.

3. Rule 23(b) Also is Satisfied

The named plaintiffs must show that the class can be maintained under one of the three

subcategories of Rule 23(b). In re Am. Med. Sys., 75 F.3d. at 1079. In this instance, the named

plaintiffs seek certification of their injunctive and declaratory relief claims under both Rule

23(b)(2) and Rule 23(b)(1)(A), and the damages portion of the case under Rule 23(b)(3).

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a. The Injunctive and Declaratory Relief Claims Should be Certified

Under Rule 23(b)(2) and Rule 23(b)(1)(A)

Rule 23(b)(2) provides that class certification is appropriate whenever the party opposing

the class has acted or refused to act on grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a

whole. Fed. R. Civ. P. 23(b)(2). Under this rule, “[i]njunctive relief embraces all forms of judicial

orders, whether they be mandatory or prohibitory.” 7A Wright, Miller & Kane, Federal Practice

and Procedure: Civil 2d § 1775, pp. 458-59 (2007). Rule 23(b)(1)(A) applies if the prosecution of

separate actions over these issues by individual members of the class would create the risk of

inconsistent adjudications with respect to the individual members of the class that would establish

incompatible standards of conduct for the defendants. Fed. R. Civ. P. 23(b)(1)(A).

The Complaint seeks injunctive, equitable and declaratory relief. It seeks an order

enjoining Defendants from engaging in the Build Scheme or any similar scheme, and in particular

enjoining, inter alia: misuse of the term “down payment”; use of a false “purchase contract”; use

of falsified financial documents; use of undisclosed mark-ups and self-dealing; use of unlicensed

trust transactions; and breaches of fiduciary duty. Complaint, Doc. 1, PageID # 96. Plaintiffs seek

declaratory relief in the form of a determination that the Build Scheme violates the putative Class

Members’ rights to redemption and right to excess proceeds, and that the trusts – induced by fraud

or created in contravention of public policy – are void or voidable. Id., PageID # 97. Plaintiffs seek

an independent Trustee or Receiver to oversee any remaining trust corpuses, and that Defendants

be ordered to pay restitution and disgorge profits. Id.

Because Plaintiffs are seeking such injunctive, equitable, and declaratory relief with respect

to the proposed class as a whole, Rule 23(b)(2) is tailor-made for this case. “If the Rule 23(a)

prerequisites have been met and injunctive or declaratory relief has been requested, the action

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usually should be allowed to proceed under subdivision (b)(2).” 7A Wright, Miller & Kane,

Federal Practice and Procedure: Civil 2d § 1775, p. 462. Therefore, this Court should certify the

injunctive, equitable, and declaratory relief portion of this case under Rule 23(b)(2).

The Court should also rule that Plaintiffs’ injunctive, equitable, and declaratory relief

claims are properly certified under Rule 23(b)(1)(A) as well. Separate prosecution of these claims

would create the risk of inconsistent adjudications that could lead to incompatible standards of

conduct for Defendants. This is precisely the sort of situation for which Rule 23(b)(1)(A) was

designed. See also 2 Newberg on Class Actions § 4:11 (5th ed. 2020) (Rule 23(b)(1)(a) injunction

cases often certified simultaneously under Rule 23(b)(2)).

b. The Damages Claims Should be Certified Under Rule 23(b)(3)

i. Common Questions of Law and Fact Predominate

The first requirement of Rule 23(b)(3) “parallels subdivision (a)(2) in that both require that

common questions exist, but subdivision (b)(3) contains the more stringent requirement that

common issues ‘predominate’ over individual issues.” In re Am. Med. Sys., 75 F.3d. at 1084. “To

meet the predominance requirement, a plaintiff must establish that issues subject to generalized

proof and applicable to the class as a whole predominate over those issues that are subject to only

individualized proof.” Young, 693 F.3d at 544 (quoting Randleman v. Fid. Nat. Title Ins. Co., 646

F.3d 347, 352–53 (6th Cir. 2011)). “A class may be certified based on a predominant common

issue ‘even though other important matters will have to be tried separately, such as damages or

some affirmative defenses peculiar to some individual class members.’” Hicks v. State Farm Fire

& Cas. Co., 965 F.3d 452, 460 (6th Cir. 2020) (quoting 7AA Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1778, at 123–24 (3d ed. 2005)). In

Young, the Sixth Circuit iterated “the fact that a defense may arise and may affect different class

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members differently does not compel a finding that individual issues predominate over common

ones.” 693 F.3d at 544 (quoting Beattie, 511 F.3d at 564). And in In re Whirlpool Corp. Front-

Loading Washer Products Liability Litigation, the Sixth Circuit noted the class-action principle

that “[w]hen adjudication of questions of liability common to the class will achieve economies of

time and expense, the predominance standard is generally satisfied even if damages are not

provable in the aggregate.” 722 F.3d at 850 (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 41

(2013) (Ginsburg, J., dissenting)).

As set forth above, the core issues of liability are common to the entire class. The conduct

on which Plaintiffs base their claims injured each member of the class identically. Accordingly,

since Plaintiffs allege that Defendants’ conduct was part of the same illegal pattern and scheme,

the common issues of fact and law arising from that conduct predominate over any individual

issues and satisfy the standard for “predominance” under Rule 23(b)(3).

ii. A Class Action is Superior to Other Available Methods for

Fairly and Efficiently Adjudicating this Action

In determining whether the “superiority” requirement of Rule 23(b)(3) is satisfied, the

Court must consider (a) the interest of members of the class in individually controlling separate

actions; (b) the extent and nature of any related litigation already commenced by class members;

(c) the desirability of concentrating the litigation of the claims in the particular forum; and (d) the

potential difficulties of managing a class action. Fed. R. Civ. P. 23(b)(3). In this case, each of these

four factors strongly militates in favor of class certification.

First, a class action is the most efficient method of adjudicating the claims of numerous

class members who, largely uninformed of or inattentive to their rights, might not otherwise

possess the initiative to commence an action on their own behalf. “The policy at the very core of

the class action mechanism is to overcome the problem that small recoveries do not provide the

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incentive for any individual to bring a solo action prosecuting his or her rights.” Young, 693 F.3d

at 545 (quoting Amchem, 521 U.S. at 617). “Where it is not economically feasible to obtain relief

within the traditional framework of a multiplicity of small individual suits for damages, aggrieved

persons may be without any effective redress unless they may employ the class-action

device.” Young, 693 F.3d at 545 (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339

(1980)); see also Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452, 463–64 (6th Cir. 2020)

(certifying class). In this case, the expense of individual actions, weighed against the potential for

relatively small individual recoveries of many Class Members, could be prohibitive. Although

some Class Members may have suffered damages substantial enough that it might be economically

viable for them to bring their own suits, this fact does not support a finding that Class Members

have an interest in individually “controlling” the litigation under Rule 23(b)(3). The reference in

Rule 23(b)(3) to the interest of individual class members in controlling the litigation relates to the

interests of most or all of the class members – rather than the interests of only a few – since if only

a small segment of the class has an interest in controlling the litigation, they may serve their own

interests by opting out of the suit. 2 Newberg on Class Actions § 4:69 (5th ed. 2020).

Second, the burden on the courts of adjudicating potentially hundreds of separate actions

by those victimized by the Build Scheme would be, to say the least, significant. To date, even

before the Plaintiffs were able to file their motion for class certification, the courts have had to be

heavily involved. In the prior state-court action, the Defendants’ discovery strategy led to a

$10,000 sanction levied against them. In this Court, the Defendants have found and paid the legal

fees for sham third-party intervenors to attempt to distract from their own bad acts and intimidate

Plaintiffs, and engaged in such improper and coerced individual settlements with absent class

members that the Court was forced to enter an order under Rule 23(d). Through a state-court judge,

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three federal judges, and one federal magistrate judge, the Defendants have shown that

adjudicating individual actions would be a momentous and extremely burdensome undertaking for

any court. Third, there is no other litigation outside of this action asserting the particular claims

for damages that Plaintiffs are pursuing here. Finally, there is no reason to believe that Plaintiffs’

attorneys, who have extensive experience in class action litigation, including in this District, will

encounter significant or unusual difficulties in managing this litigation. For these reasons, class

certification is the superior method for adjudicating this dispute.

III. CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully submit that class certification is

appropriate. Plaintiffs therefore request that this case be certified as a class action, that they be

appointed class representatives, and that the Finney Law Firm, LLC and Markovits, Stock &

DeMarco, LLC be appointed Class Counsel.

Respectfully submitted,

/s/ W.B. Markovits__________

W.B. Markovits (0018514)
Paul M. DeMarco (0041153)
Terence R. Coates (0085579)
Zachary C. Schaengold (0090953)
Justin C. Walker (0080001)
Dylan J. Gould (0097954)
MARKOVITS, STOCK & DEMARCO,
LLC
3825 Edwards Road, Suite 650
Cincinnati, Ohio 45209
Phone: (513) 651-3700
Fax: (513) 665-0219
bmarkovits@msdlegal.com
pdemarco@msdlegal.com
tcoates@msdlegal.com
jwalker@msdlegal.com
zschaengold@msdlegal.com
dgould@msdlegal.com

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and
Christopher P. Finney (0038998)
Casey Taylor (0095966)
Rebecca S. Heimlich (0064004)
FINNEY LAW FIRM, LLC
4270 Ivy Point Blvd., Suite 225
Cincinnati, Ohio 45245
Telephone: (513) 943-6665
Facsimile: (513) 943-6669
chris@finneylawfirm.com
casey@finneylawfirm.com
rebecca@finneylawfirm.com

Co-Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on February 12, 2021, a copy of the foregoing was filed

electronically with the Clerk of Courts for the United States District Court for the Southern

District of Ohio via the Court’s CM/ECF system. Notice of this filing will be sent to all parties

of record by operation of the Court’s electronic filing system. Parties may access this filing

through the Court’s system.

/s/ W.B. Markovits_________

W.B. Markovits (0018514)

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