# DOCKERY v. HERETICK

> District Court, E.D. Pennsylvania · September 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10401750

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10401750

## How later opinions describe it (automated extraction)

- noting that predominance is a “far more demanding” requirement than commonality, and “require[s] more than a common claim”
- explaining that a scheme or artifice to defraud under the mail fraud statute “must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dockery :
: CIVIL ACTION
v. :
: No. 17-4114
Heretick, et al. :
: Kenney, J.
Memorandum

I. INTRODUCTION

In this civil RICO case, plaintiff Larry G. Dockery alleges the existence of an unlawful
scheme between companies who purchase future settlement annuity payments, an attorney who
represented those companies in connection with such transactions, and other persons, to obtain
annuities from unsophisticated annuitants on unfair terms. See ECF No. 99, Second Amended
Complaint (“SAC”). Having survived a motion to dismiss on his RICO claims and after
engaging in some discovery, Plaintiff seeks certification of a class of annuitants who, like him,
sold their annuities to companies in exchange for lump sum cash payments and allegedly
received less than their worth.
II. FACTUAL BACKGROUND
Plaintiff Larry Dockery’s left arm was severed in a piece of machinery in the 1980s.
SAC ¶ 30. He brought a tort action against the manufacturer of that machine, which settled for
an initial payment of $407,757 plus periodic payments for the rest of his life. Id. Through this
settlement, Dockery became the beneficiary of a Structured Settlement Annuity (“SSA”), which
provided for monthly payments and specified payments every five years through 2034. Id. ¶ 34.
Defendants 321 Henderson Receivables, LLC, J.G. Wentworth Originations LLC, and
Structured Settlement Purchaser John Doe Inc. 1-100 are companies that purchase SSA payment
streams from annuity recipients (“Purchaser Defendants”).1 Id. ¶¶ 34-37. These Purchaser
Defendants, as well as Seneca, purchased payment streams from SSAs issued to the Plaintiff and
to the putative class members. Defendant Heretick, a Virginia attorney who serves in the
Virginia House of Delegates, represented the Purchaser Defendants in connection with those
purchases. Id. ¶¶ 33-36.2

A. The Statutory Framework
Individuals who have structured settlement annuities sometimes wish to receive some or
all of their funds before they are due to be disbursed. See ECF No. 260-2. Companies like the
Purchaser Defendants will purchase future annuity payments from annuitants in exchange for a
lump sum at a discounted rate.
Such sales are subject to numerous legal requirements. In 2002, Congress enacted 26
U.S.C. § 5891, which levies a 40 percent tax on companies purchasing rights unless the company
submits a court application and a state court where the annuitant (“seller”) is domiciled issues a
“qualified order” approving the transaction before it is consummated. 26 U.S.C. § 5891(a)-(b).

A “qualified order” must contain judicial findings that the transaction: (1) does not violate
applicable law or administrative authority; and (2) is in the best interests of the seller, “taking
into account the welfare and support of [the seller’s] dependents.” Id. § 5891(b)(2)(A).
Virginia law also requires judicial approval for the transfer of SSA payment streams. To
obtain a qualified order, the purchasing company is required to file an application for approval in
any Virginia court. Va. Code § 59.1-477(A). The SSA purchaser must make certain disclosures

1 Default Judgment was entered as to Defendant Seneca One Finance, Inc., another purchaser
defendant, in June 2020. See 17-4114, ECF No. 202.

2 There are also several “Nominal Defendants” listed in the suit who are currently making
payments on annuities that are the subject of this case.
to the SSA seller, and the buyer must file a notice with the Virginia court that includes the
transfer agreement and required disclosures. Id. § 59.1-477(B). The court must then hold a
hearing on the application. Id. § 59.1-477. The Virginia Act does not require sellers to attend
the hearing on the buyer’s application. Id. Then, in order to authorize a sale, courts are required
to make express findings that:

1. The transfer is in the best interest of the payee, taking into account the welfare and
support of the payee’s dependents;

2. The payee has been advised in writing by the transferee to seek independent
professional advice regarding the transfer and has either received such advice or
knowingly waived in writing the opportunity to seek and receive such advice; and

3. The transfer does not contravene any applicable statute or the order of any court or
other governmental authority.

Va. Code § 59.1-476 (the “Virginia Act”). Under the Act, “[i]ndependent professional advice
means advice of an attorney, certified public accountant, actuary or other licensed professional
adviser.” Id. § 59.1-475.
The key aspects of the statutory structure for the alleged scheme here are the requirement
that the court find that the transfer is in the beneficiary’s best interest and that the payee has been
advised to seek independent professional advice and either received such advice or knowingly
waived such advice in writing.
B. The Alleged Scheme

The above legal requirements, according to Dockery, were designed to protect SSA
beneficiaries from being induced to sell SSA streams on terms on which no rational, well-
informed or well-advised person would sell. They were also allegedly designed to protect SSA
beneficiaries from being induced to sell on terms that would never by approved of by any court
that engaged in any meaningful review of the transaction or in any proceeding in which the
beneficiary was represented by counsel. SAC ¶¶ 12, 68-69.
Dockery alleges that the Purchaser Defendants and Heretick, along with others,
developed and executed the “Heretick scheme” to profit from the breach of these state laws and
from the exploitation of the sellers that is possible when these state law protections are defeated.

Id. ¶ 69. Those “other individuals” include “individuals purporting to be [sellers’] lawyers [who]
signed letters stating that they had provided [sellers] with independent advice, which were
submitted with petitions relating to the [sellers’] transactions. Id. ¶ 156.
The “crucial fact” at the center of the alleged scheme was the defeat of the legal
requirements underpinning Section 59.1-476(2) of the Virginia Act. SSA sales in Virginia
cannot go forward unless the Court conducts a hearing and finds that “[t]he payee has been
advised in writing by the transferee to seek independent professional advice regarding the
transfer and has either received such advice or knowingly waived in writing the opportunity to
seek and receive such advice.” Va. Code. § 59.1-476(2).

Dockery claims that it was Defendants’ policy to defeat this requirement and that they did
so by lying to the Portsmouth court each time they submitted a Petition to approve an SSA sale
through Defendant Heretick. Heretick allegedly filed all such petitions in the Portsmouth,
Virginia Circuit Court (“the Portsmouth court”). SAC ¶ 98. He did so because he had allegedly
been granted permission by that Court to submit petitions in batches, and he therefore knew that
his petitions would not be carefully scrutinized for misrepresentations, errors, and defaults. Id.
The operative alleged misrepresentations are as follows.
Dockery takes issue with a representation in Petitions sent to the Portsmouth court in
which Heretick represented that “the transferor/payee has been advised in writing by the
transferee to seek independent professional advice regarding the transfer and has received such
advice reflected in the letter of his legal counsel which is attached hereto.” See, e.g., ECF No.
264-28. The letter referenced was an Estoppel Letter, described below, which was included in
the paperwork sent to the Court. He claims that this representation was untrue every time
Heretick made it, that Heretick and Wentworth knew it was untrue, and that the Portsmouth court

materially relied on this representation in its review of the submitted petitions.3
Advised in Writing. Dockery claims that the representation that “the transferor/payee
has been advised in writing by the transferee to seek independent professional advice” is false
because Wentworth (and 321 Henderson) affirmatively required individuals to consult a lawyer.
SAC ¶ 114. Until 2009, as part of the approval process, Wentworth required all purchasers to
hire an attorney and obtain an “estoppel letter” from the attorney representing them before
Wentworth would proceed with the transaction. See ECF No. 260-3 at 134.
Mr. Kelly, Wentworth’s 30(b)(6) witness, testified that the letters were an evidentiary
tool that Wentworth used to demonstrate to courts that the transaction complied with the

independent professional advice requirement of the state law by showing that the customer had
met with an attorney about the transaction. ECF No. 260-1 at 4. After Wentworth received the
Estoppel Letter and executed transaction documents, Wentworth’s counsel, Mr. Heretick, would
provide the Estoppel Letter, executed transaction documents, and other required materials to the
Portsmouth Court. See, e.g., ECF No. 261-11, 261-12, 262, 262-1, 262-2. After 2009,
Wentworth stopped requiring sellers to hire Estoppel Lawyers. ECF No. 260-3 at 135.

3 Dockery’s original complaint alleged that the Judges of the Portsmouth Circuit Court – whom
he termed “Complicit Judges” – were also part of the RICO enterprise. See ECF No. 1 at 12.
But in order to keep his case in the Eastern District of Pennsylvania, Dockery pivoted theories
and alleged that the Judges were the victims of the fraudulent scheme instead of complicit in the
execution of the scheme.
Received Independent Advice. The representation that the transferee has received
independent professional advice is also allegedly false because the structure the Purchaser
Defendants created ensured that no advice by Estoppel Lawyers could possibly be independent.
That structure included the following.
Estoppel Letters. In every instance, the petition would include an “Estoppel Letter,”

addressed to the Purchaser Defendants, signed by the “Estoppel Lawyer” who purportedly
advised the seller. Dockery asserts that the purpose of these letters was to protect Defendants
from sellers attempting to undo their transactions. Yet the Estoppel Letter and this purpose were
not specifically mentioned in one of Dockery’s purchase agreements. See Kelly Dep. at 162:7-8.
But Wentworth’s standard Purchase Agreement did include a provision noting that “You must
retain the services of an attorney and deliver an opinion of your attorney about the sale of
assigned assets to us in a form acceptable to us.” ECF No. 289-1 at 64.
Dockery also claims that Wentworth directed what Estoppel Lawyers were saying to the
Portsmouth court by controlling what was included in the Estoppel Letter. Wentworth would tell

Estoppel Lawyers what features of their representation they should discuss in the letter or would
provide samples if an Estoppel Lawyer was unsure what needed to be included. ECF No. 261-3
at 158; see also 289-1 at 63. In one Estoppel Letter for one of Dockery’s transactions, the
document contained blanks that the Estoppel Lawyer could fill in. ECF No. 246-20. In his
deposition, another Estoppel Lawyer testified that he told his clients the transaction’s terms were
disadvantageous, but that he did not include his view in his Estoppel Letter because “this is an
opinion letter that they wanted, so I gave it back to them.” ECF No. 246-34 at 53.
Dockery also takes issue with the fact that the Estoppel Letters did not indicate that the
lawyer provided advice on whether the transaction is actually in his client’s best interest. As an
example, an Estoppel Letter in Dockery’s file stated:
This office has acted as legal counsel to the Seller . . . with respect to a transaction
more fully described in a Purchase Agreement . . . This estoppel letter is being
delivered at the Purchaser’s request pursuant to the Purchase Agreement and is
being relied upon by the Purchaser in entering into the within transaction . . . The
undersigned and his firm have acted as independent legal counsel to the Seller in
the above-referenced transaction and has provided legal, accounting and tax advice
. . . The undersigned has made himself available to the Seller to explain the terms
of the transaction contemplated in the Purchase Agreement and . . . is satisfied that
the Seller understands the nature and terms of such transaction.

ECF No. 261-5 at 20.
Another of Dockery’s Estoppel Letters stated:
This is to advise that I have consulted with the above-named client concerning the
sale of structured funds to J.G. Wentworth. I have provided the client with legal,
tax, and financial advice regarding the same. Due to the attorney/client privilege,
I cannot disclose the conversation we had concerning this matter, except to say that
it concerned this transaction. After the consultation, the client advised me to
proceed with this transaction.

ECF No. 260-32.
Contingency Fees. Dockery claims that Estoppel Lawyers were paid an amount agreed
to by the Estoppel Lawyers and the Purchaser Defendants on a contingency basis, and that
Estoppel Lawyers were paid out of the proceeds of the sale by Wentworth only after transactions
were approved.
Mr. Kelly testified that Wentworth had no preference for how attorneys collected their
fees, ECF No. 60-1 at ¶ 20, but testified that Wentworth maintained records reflecting its
payment of fees to estoppel lawyers, ECF No. 246-6 at 178-79. Estoppel Lawyers would
sometimes invoice Wentworth seeking a check payable to the Estoppel Lawyer from the seller’s
funds, ECF No. 246-3, and other times the Purchase Agreement would include a provision where
the client’s attorney could select that his fee would be disbursed from his client’s funds. ECF
No. 261-6 at 35.
Every Estoppel Lawyer to have been deposed denied being paid on a contingency basis,
ECF No. 246-34 at 28, ECF No. 246-35 at 44. However, both also noted that they had worked
on transactions that were not consummated, and that they did not receive payment in those

instances. Id.; Id. Another attorney noted that if Dockery had not gone through with the
transaction, he would have charged Dockery something “[o]r he would have brought me a bag of
apples. You never know.” ECF No. 246-16 at 73-74.
Referrals. In choosing an Estoppel Lawyer, some sellers would use an attorney they
already knew. See ECF No. 260-13 (noting that Dockery’s first Estoppel Lawyer was an
attorney who had previously represented him in a different matter). Others would find and hire
attorneys on their own. See ECF No. 260-14 (noting that Dockery’s second Estoppel Lawyer
was from Dockery’s town and was retained by Dockery).
Dockery alleges that in many of the transactions involving Estoppel Lawyers, the

Estoppel Lawyer was chosen by the Purchaser Defendants. Dockery contends that four
“Frequent Flyer” Estoppel Lawyers provided 440, 228, 18, and 104 Estoppel Letters,
respectively. See ECF No. 246-5. As evidence of the alleged referral scheme, Dockery points to
testimony from one “Frequent Flyer” lawyer who explained that, at one point, Wentworth “had
gotten legal advice that they could no longer . . . refer people to me.” ECF No. 246-35 at 43.
Notes from a customer service representative demonstrate that Wentworth “told [a seller] to call
Bob Haley,” one of the Frequent Flyers. ECF No. 246-23. And another Frequent Flyer testified
that at least one or two of the sellers, if not more, would call him and ask if he were interested in
representing them, but that the purchasing company would also call and ask if he was interested
in representing a seller. ECF No. 246-34 at 17. Dockery notes that one of his “Frequent Flyer”
lawyers, who served as an Estoppel Lawyer more than 235 times, lived 350 miles from Dockery.
See ECF No. 246-25 (customer service notes showing that Dockery “found” Hassell); ECF No.
256-25 at 79. Dockery also cites a memo produced in discovery that was sent to a seller,
advising that “[a]t your request, we have provided you with the names of attorneys who have

represented clients in prior transactions similar to the one in which you intend to enter . . . You
are free to seek an attorney of your own choosing.” ECF No. 246-26 at 2.
Wentworth’s Rule 30(b)(6) witness testified that there was no formal referral process for
attorneys, ECF No. 260-1, but that Wentworth would suggest contacting a bar association or
referral service, offer to introduce customers to previous customers, or at times refer an attorney
if the customer had no one else to represent them. ECF No. 260-3 at 146. He also explained that
Wentworth did not train its employees on the “very narrow point” of directing customers back to
the tort lawyers who represented them in the proceeding that gave them a structured settlement
annuity in the first place. ECF No. 289-1 at 48.

Seller’s Affidavits. Every package sent to the Portsmouth court allegedly included an
affidavit signed by the seller stating that it is “my belief, and my representation to the Court, that
this transfer lies in my best interest, together with that of my family.” See, e.g., ECF No. 263-8.
Dockery alleges that Heretick would send the affidavits directly to purportedly represented
sellers to execute, although he sometimes also sent them to the Estoppel Lawyer.
C. Scheme in Action
According to Dockery, the above structure–which Defendants lied about to the
Portsmouth court–ensured that the Estoppel Lawyers and the “advice” they purported to provide
were controlled by Defendants. Pl.’s Br. at 10. For example, one of Dockery’s Estoppel
Lawyers told Dockery the transaction was a “shitty deal,” but he did not include that view in his
Estoppel Letter. ECF No. 246-16 at 71. Frequent Flyer Estoppel Lawyer Mr. Hassell testified
that he “never checked” whether his clients could obtain better terms from another purchaser
because “[t]he fact that they were in my office, they were there to sell to Wentworth.” ECF No.
246-35 at 35. He did, however “want[] to do whatever he could for [his clients], including

calling Wentworth in many cases to try to improve the deal, realizing, frankly . . . after the first
two or three times, [that] they weren’t going to do it, but if the client asked me to try to, I
would.” Id. at 69. Mr. Hassell was asked whether the fact that he would more likely be able to
collect legal fees if the deal went through than if it did not compromised his independence in any
way. ECF No. 246-35 at 60. He responded, saying that “I guess psychologically you could say
yes, but . . . my view of the whole thing was that I was representing these people, and they
wanted to go through with it, reluctantly, but they wanted to go through with it . . . [so] it never
seemed to become an issue.” ECF No. 246-35 at 60. He also testified that he did not think he
discussed the option of bankruptcy with his clients because, in all probability, “they were there,

they had an opportunity for a source of funding . . . And the issue was whether they should deal
with the source or try to get money from some other source, not so much bankruptcy.” Id. at 82.
D. Heretick’s Involvement
Dockery alleges that the following evidence demonstrates that Heretick knew that the
sellers did not have real lawyers. First, Heretick’s letter to Mr. Dockery instructed him to sign
the affidavit, informed him that he could retain counsel to appear at the hearing, and explained
that Mr. Heretick could answer any questions Dockery may have. Heretick also acknowledged
that he participated in drafting some of the affidavits signed by sellers. See ECF No. 121,
Heretick’s Answer to the Complaint at ¶ 141. The Estoppel Letters, which Heretick submitted to
the Portsmouth court, did not state that the Estoppel Lawyer opined on the question of whether a
transaction was in the client’s best interest. See supra. The Purchaser Defendants also, through
Heretick, sought to seal court records as a “common practice” so that their “competitors either
can’t find or would have a harder time finding our court filings” because “they may try to reach
out to our customer and ultimately secure the customer’s business.” ECF No. 246-6 at 275.

Dockery also cites various inconsistencies in petitions Heretick submitted to the Portsmouth
court.
E. Experts
Both parties retained liability and damages experts in support of their respective
positions.
Liability. Plaintiff retained Thomas Baker, Measey Professor of Insurance Law at the
University of Pennsylvania Law School and Reporter for the American Law Institute’s
Restatement of the Law, Liability Insurance, to offer an expert opinion on how the Defendants’
alleged scheme affected the independence of the Estoppel Lawyers. ECF No. 246-12. In his

opinion, an attorney representing the seller of SSA payments has a duty to be independent of any
other party interested in that transaction and has a duty to provide his client with his informed
opinion as to whether the terms of the transaction, including the discount rate to be applied, are
in the client’s best interest. Id. at 3. He also has a duty to explain how to comparison shop,
assist in that endeavor, and review the results of the comparison shopping with the client. ECF
No. 246-12 at 16. Moreover, an attorney representing the seller in such a transaction necessarily
also represents the seller in the legal proceeding in which the Court will determine whether the
transaction is in the seller’s best interest. Id. In his view, an attorney who believes that a
transaction is not in his client’s best interest must withdraw from representation. Id. at 17. In
such a situation, he must also attempt to dissuade his client from signing an affidavit stating the
transaction is in his best interest and, if the seller persists in signing such an affidavit, the lawyer
must advise the Court that the lawyer believes the testimony is untrue and that the transaction is
not in the seller’s best interest. Id. at 18.
He concludes that an attorney is not independent when the following conditions exist: (1)

when the attorney is selected by the purchaser; (2) when the attorney is paid on a contingent
basis by the purchaser; (3) when an attorney follows directions on drafting an Estoppel Letter;
and (4) when an attorney knowingly allows the client to testify to the court that the transaction is
in his or her best interest unless the attorney has a good faith basis for believing the statement is
true. Id. If a lawyer cannot prevent a seller from signing such an affidavit, then the lawyer must
inform the Virginia court that he believes the testimony is untrue and that, in the lawyer’s
opinion, the transaction is not in the client’s best interest. Id. at 18.
Defense Expert, Leslie Haley, Esq., opined on the conduct of Wentworth, Heretick, and
the Estoppel Lawyers. In her view, Wentworth and Heretick did not interfere with the

independence of the lawyers consulted by Dockery or other sellers, Virginia law did not require
Wentworth or Heretick to inquire into or assess the performance of a seller’s lawyer, Estoppel
Letters did not create a lack of independence, and Defendants could properly rely on the
representations in the Estoppel Letters that attorneys were independent, among other views.
ECF No. 264-20. She also opines that rendering candid advice, however, does not include
interfering with a client’s pursuit of his or her objective. See id. at 4 ¶¶ 26-28.
Damages. Plaintiff’s damages expert, Mr. Scherf, explains how damages in this matter
could be calculated for the class. See ECF No. 246-29. Mr. Scherf proposes a rate that he
concludes recipients would have received with independent advice, which is the prime rate plus
6 percent. He derives this amount from the rate that Allstate charged during the class period
because some of the annuitants had Allstate annuities. Second, he examined the cost of capital to
the Purchaser Defendants, which ranged between 6.9 percent and 4.6 percent during the class
period, plus a reasonable cost of business operations and a profit margin. He also examined the
North Carolina SSA statute, which imposes a threshold discount rate that transactions cannot

exceed, and used that threshold as part of his calculation.
Defendants retained Earl Nesbitt, lawyer and former Executive Director and General
Counsel of National Association of Settlement Purchasers, as their damages expert. Nesbitt
opines that Dockery’s damages expert’s rate is flawed because the prime rate does not impact the
calculation of purchase price offers. ECF No. 264-18 at 14. Rather, determining the discount
rate can only be done on a transaction-by-transaction, payee-by-payee basis. Id.
F. Named Plaintiff’s Transactions
In 2002, Dockery was approached by an individual seeking to broker a transaction
between him and Wentworth. ECF No. 261-9 at 46. Dockery and Wentworth then preliminarily

agreed that Dockery would sell a $35,000 payment due to him on August 17, 2004, and a
payment of $40,000 due on August 17, 2009, for the price of $36,298, payable to him in 2002.
ECF No. 261-12. Dockery hired James Shull, an attorney who previously performed legal work
for Dockery and his family on multiple occasions, as his lawyer to represent him in the
transaction. ECF No. 261-9 at 592. Mr. Shull testified that Dockery “wanted assistance in
correctly completing certain documents he had with him.” ECF No. 260-13. Mr. Shull’s
practice was “to go over with a client the documents that they were going to execute,” and that
he would not have let a client “go forward with executing legal documents without . . . being
satisfied that the clients understood the nature and terms of the legal documents.” Id. Dockery
testified that he sold his right to his SSA payments because he and his family needed the money
and he had no alternative source of funds.
Mr. Shull provided an Estoppel Letter to Wentworth. ECF No. 261-12 at 17-18. The
letter confirmed that “[t]his office has acted as legal counsel to the Seller” with respect to the
SSA transaction” and that “[t]his estoppel letter is being delivered at [Wentworth’s] request

pursuant to the Purchase Agreement and is being relied upon by [Wentworth] in entering into the
within transaction.” ECF No. 261-12 at 17. It further confirms that Mr. Shull has “acted as
independent legal counsel to the seller . . . and has provided legal, accounting and tax advice.”
Id. Finally, it confirmed that Mr. Shull “has made himself available to the Seller to explain the
terms of the transaction” and “is satisfied that the Seller understands the nature and terms of [his]
transaction.” Id.
After all the paperwork was filed with the Circuit Court for the City of Portsmouth, a
Judge held a hearing and approved the transaction in a written order, finding that the Virginia
Act had been complied with and that the “transfer is in the best interests of the Payee/Transferor,

taking into account the welfare and support of the Payee’s/Transferor’s dependents.” ECF No.
26. Dockery did not attend the hearing. ECF No. 264-6 at 253 (“[The Purchaser Defendants]
didn’t say not to, but they said I didn’t have to be there and I never did go.”).
Between 2002 and 2009, Dockery entered into seven more transactions with the
Purchaser Defendants. ECF No. 261-12; ECF No. 262, 262-1, 262-2. He explained that he
received quotes from different companies for some of his transactions, but chose Wentworth
because Wentworth provided the best rates. ECF No. 261-9 at 560-62.
Dockery also alleges that he “never retained, and never received any advice, from any”
of his Estoppel Lawyers. The representations made by them to the contrary are false, and were
known by them to be false when made.” SAC ¶ 123. In his first deposition, Dockery testified
that he never used Mr. Shull as his lawyer for anything, ECF No. 264-8 at 8, although he
admitted in his second deposition that Mr. Shull had represented him in a separate matter well
before his transactions with Wentworth, ECF No. 264-8 at 33. Dockery also testified that he
does not know, and has never met, lawyers who wrote Estoppel Letters for him. ECF No. 261-9

at 82-83. This includes Mr. Haley, ECF No. 261-9 at 82-83, although Dockery admitted in his
second deposition that Haley had come to his house to notarize paperwork regarding his sale to
Wentworth, ECF No. 261-9 at 639-41. Dockery also testified that he does not know who Mr.
Rhoton is and that Mr. Rhoton had nothing to do with his sale of SSA payment rights, ECF No.
26108 at 80-81. Yet, Mr. Rhoton testified that he met with Dockery and went over the
transaction materials with him. ECF No. 260-16 at 21. Similarly, Dockery repeatedly testified
that he did not remember meeting a notary whose signatures appeared on his documents, and that
she did not notarize his transaction documents. See, e.g., ECF No. 261-8 at 108, 112, 145, 171-
72, 212, 215, 280, 440. But he later testified that he selected Ms. Myers to notarize his signature,

ECF No. 21-9 at 638, and that he knows her, id. at 501.
In his deposition, Dockery admitted to longstanding issues with his memory. See ECF
No. 264-8 at p. 34-35. He also admitted that it was “very possible” that “[his] answers that [he]
didn’t have contact with lawyers about [his] transactions to sell [his] structured settlement
annuity payments may not be correct.” Id. at 35.
After 2009, Dockery entered into transactions with Seneca One (2010) and Symetra
(2011), in which he waived his right to independent professional advice. ECF No. 263, 263-37,
263-38. Through these various transactions, Dockery eventually sold all of his remaining
payment streams. Dockery testified that he sold his SSA payments because he and his family
really needed the money. ECF No. 264-2 at 260.
III. PROCEDURAL HISTORY

Dockery filed this putative class action in September 2017, asserting 10 separate counts
on behalf of himself and other beneficiaries who sold their annuities to the Purchaser Defendants
for less than their present value. After a first round of motion to dismiss briefing and the filing
of a RICO Case Statement, Judge Baylson, then the presiding Judge over this matter, granted the
plaintiff leave to file an Amended Complaint. The Amended Complaint included a count
alleging a RICO violation by Purchaser Defendants Seneca and Wentworth as well as attorney
Heretick; three counts (counts II through IV) alleging a RICO violation against Heretick; an
unjust enrichment claim; request for a constructive trust; and a breach of fiduciary duty claim.
Dockery also filed a Revised RICO case statement.
In response to the Court’s order to amend Count I, the plaintiff filed a Second Amended
Complaint in March 2019 (SAC). The SAC specifies that Count I is pleaded against “all

defendants” and clarifies that Plaintiff is alleging three different “association-in-fact enterprises”
(the “Annuity Fraud Enterprises”) between Heretick, each of the three Purchaser Defendants, and
“additional persons, including but not limited to those persons identified as persons who falsely
represented themselves to have provided independent advice to the sellers of SSA payments, and
others who performed other services, including without limitation notarization services.” SAC
¶ 184.
The Court granted in part and denied in part defendants’ motion to dismiss in a
memorandum and order in May 2019. Specifically, the Court dismissed the unjust enrichment
claim, breach of fiduciary duty claim, and claim seeking a constructive trust. Therefore, the
remaining counts and the basis for seeking class certification are the RICO and conspiracy to
violate RICO claims. Dockery then filed his first Motion for Class Certification under seal in
March 2020, and deadlines were periodically stayed to continue discovery. ECF No. 197.
The case was transferred to the undersigned in June 2020 after Judge Baylson recused
himself from the case. ECF Nos. 200, 201. In December 2020, Dockery requested leave to file

an Amended Motion for Class Certification, which the Court granted. The motion has now been
fully briefed and argued.
IV. JURISDICTION AND LEGAL FRAMEWORK

Plaintiff alleges four claims on behalf of himself and others similarly situated. The first
three allege violations of the Racketeer Influenced and Corrupt Organizations Act (RICO)
pursuant to 18 U.S.C. § 1962(c), and the fourth states a claim for conspiracy to violate RICO
pursuant to § 1962(d). SAC ¶¶ 183-213. The Court has jurisdiction to adjudicate these claims
under 28 U.S.C. § 1331.
A violation of section 1962(c) requires “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Ins. Brokerage Antitrust Litig., 618 F.3d 300, 362 (3d Cir.
2010). A plaintiff must also satisfy RICO’s standing provision, which requires a plaintiff to be
“injured in his business or property by reason of a [RICO] violation.” 18 U.S.C. § 1964(c). To
satisfy this requirement, a RICO plaintiff must prove an injury to his or her business or property
that constitutes a “concrete financial loss” and that the defendant’s RICO violations proximately
caused his or her injury. Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000).
For purposes of RICO, an “enterprise” can include legal entities and/or “association-in-
fact” enterprises. See, e.g., United States v. Turkette, 452 U.S. 576, 581 (1981). The latter type
of enterprise must have at least three features: “a purpose, relationships among those associated
with the enterprise, and longevity sufficient to permit these associations to pursue the
enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009). Such an enterprise is
“proved by evidence of an ongoing organization, formal or informal, and by evidence that the
various associations function as a continuing unit.” Turkette, 452 U.S. at 581.
A RICO plaintiff must also prove that defendants engaged in a pattern of “racketeering

activity,” i.e., “predicate acts.” See 18 U.S.C. § 1961. Predicate acts include federal mail fraud,
which Dockery alleges here. See 18 U.S.C. § 1961(1) (referencing 18 U.S.C. §§ 1341 & 1343);
see also In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 408 n.26 (3d
Cir. 2015). The elements of mail fraud are (1) a scheme to defraud; (2) the use of the mails to
further that scheme; and (3) fraudulent intent. See United States v. Pharis, 298 F.3d 228, 234 (3d
Cir. 2002). A “scheme or artifice to defraud need not be fraudulent on its face, but must involve
some sort of fraudulent misrepresentation or omission reasonably calculated to deceive persons
of ordinary prudence and comprehension.” Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.
2004).

The SAC alleges multiple enterprises engaged in the predicate act of mail fraud. Count I
is based on three separate association-in-fact enterprises (referred to as “Annuity Fraud
Enterprises”) consisting of Heretick, a Purchaser Defendant, and “persons who falsely
represented themselves to have provided independent advice to the sellers of SSA payments, and
others who performed other services, including without limitation notarization services.” SAC at
¶ 183-194. Counts II through IV allege three separate enterprises consisting of the Purchaser
Defendant (Defendant 321 Henderson, Defendant Wentworth, and former Defendant Seneca).
Id. at ¶¶ 195-211. In the conspiracy count of the SAC, plaintiff alleges a conspiracy consisting
of Heretick, the Purchaser Defendants, and the additional persons who allegedly joined together
to ensure the approval of SSA transfer petitions on favorable terms for the purchasers and in
ways that would evade judicial detection.
V. DISCUSSION

Class actions are the “exception to the usual rule that litigation is conducted by and on
behalf of individual named parties.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 155
(1982). To be eligible for this exception, a putative class action must meet the four requirements
of Rule 23(a) and the requirements of either Rule 23(b)(1), (2), or (3). See Fed. R. Civ. P. 23(a)-
(b); see also Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590 (3d Cir. 2012). To satisfy the
requirements of Rule 23(a), there must be numerosity, commonality, typicality, and adequacy.
Id. at 590-91 (internal citations omitted). And because this putative class action seeks damages,
Rule 23(b)(3)’s requirements that “common questions of law or fact predominate”
(predominance) and that “the class action is the superior method of adjudication” (superiority)
must also be met. BMW of North Am., 687 F.3d at 591 (internal citations omitted). Finally, “an
essential prerequisite” of a Rule 23(b)(3) class action is that “the class must be currently and

readily ascertainable based on objective criteria.” Id. at 592-93 (collecting cases).
These requirements are “not mere pleading rules”; rather, the plaintiff “bears the burden
of establishing each element of Rule 23 by a preponderance of the evidence.” Id. at 591 (quoting
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307, 316 (3d Cir. 2009)). In determining
whether a plaintiff has satisfied the Rule 23 requirements, the Court must conduct a “rigorous
analysis of the evidence and arguments presented.” In re Lamictal Direct Purchaser Antitrust
Litig., 957 F.3d 184, 190-91 (3d Cir. 2020) (citations omitted).
This rigorous analysis involves three aspects. Id. at 191. First, the Court is required to
“find that the requirements of Rule 23 are met and any factual determinations supporting Rule 23
findings must be made by a preponderance of the evidence.” Id. (internal citations and
punctuation omitted). “Second, the [C]ourt must resolve all factual and legal disputes relevant to
class certification, even if they overlap with the merits.” Id. (internal citations omitted). Third,
the Court is required to “consider all relevant evidence and arguments, including expert
testimony, whether offered by a party seeking class certification or by a party opposing it.” Id.

(citations and quotation marks omitted).
The Court also keeps in mind that in practicality, the decision of whether to certify a class
is typically a “game-changer”–“often the whole ballgame”–for plaintiffs and their counsel, and
may “create unwarranted pressure to settle nonmeritorious claims on the part of the defendants.”
BMW of N. Am., 687 F.3d 591 n.2 (internal citations omitted). “Accordingly, the potential for
unwarranted settlement pressure is a factor [courts] weigh in [their] certification calculus.”
Hydrogen Peroxide, 552 F.3d at 310 (citation omitted).
A. PROPOSED CLASS

Plaintiff seeks to certify a class consisting of all persons who:
a. Were beneficiaries of one or more SSAs;

b. Were parties to a proceeding in which Defendant Heretick represented
JG Wentworth or 321 Henderson, Inc., sought judicial approval of a
sale, by the beneficiary to one or the other of these two Defendants, of
the beneficiary’s right to a stream of payments from one or more
SSAs, where

i. The proceeding was filed and adjudicated in the Portsmouth,
Virginia Circuit Court;

ii. In which Defendant Heretick filed representations to the court
that the beneficiary had received independent advice when the
basis for this representation was the fact that an Estoppel Letter
had been issued by an Estoppel Lawyer relating to the
transaction at issue in that proceeding; and

iii. The petition for the sale was approved.
Pl.’s Amended Mot. For Class Cert., ECF No. 246-1 (Pl.’s Br.”) at 43.

Dockery also seeks to certify a subclass (which he calls the “Frequent Flyer” subclass),
consisting of those class members who had Estoppel Letters in their file from any of the Estoppel
Lawyers Robert Haley, Thomas Hassell, Geoffrey Hemphill, or Jad Sarsour, “with respect to
each of whom it is clear that the ‘client’ made no independent choice to be represented by these
attorneys, but instead Defendants chose the lawyers.” Id.
While Dockery defined his proposed class and subclass (hereinafter called Class and
Frequent Flyer Subclass, or together as Proposed Classes) as the above, he stated in the
introduction to his brief that “[a]ll such lawyers [in the Class and Frequent Flyer Subclass] were
paid on a contingent basis, because all Estoppel Lawyers were paid out of the proceeds of the
transactions about whose merit they were supposed to be providing independent advice.” Pl.’s
Br. at 3. Dockery’s reply brief appeared to officially make the contingency arrangement
allegation part of the class definition. See ECF No. 274 at 11 (“[O]ur class is defined to include
only lawyers who were paid on a contingent basis out of the proceeds of the transaction. If
(contrary to all the evidence in the record from either side) there actually were a lawyer who was
engaged by a seller and whose compensation was received by the lawyer directly from the seller
alone, before or even after the transaction, that transaction would not be part of the case.”)
(emphasis in original). At oral argument, the Purchaser Defendants argued that plaintiff’s
counsel “changed their class [in their reply brief] to say that the class will be defined by those

estoppel lawyers that were on a contingent fee,” Transcript of Oral Argument, ECF No. 280 at
37, and Dockery’s counsel did not contest this characterization.
Later at oral argument, Dockery’s counsel also noted that the “appropriate” thing to do
would be to narrow the class to those who received a discount rate of greater than prime plus 6
percent, the floor articulated by Plaintiff’s damages expert. Tr. of Oral Argument at 32.
B. RULE 23 REQUIREMENTS

1. Preliminary Inquiries
Courts have recognized two essential prerequisites to Rule 23(b)(3). First, an order
certifying a class action must include “(1) a readily discernible, clear, and precise statement of
the parameters defining the class… and (2) a readily discernible, clear, and complete list of the
claims, issues or defenses to be treated on a class basis.” Marcus, 687 F.3d at 591. Second, the
class must be ascertainable, meaning it is “currently and readily ascertainable based on objective
criteria.” Id. at 592-93. The ascertainability inquiry is two-fold, “requiring a plaintiff to show
that: (1) the class is defined with reference to objective criteria; and (2) there is a reliable and
administratively feasible mechanism for determining whether putative class members fall within
the class definition.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015). A class action is

inappropriate if it is not possible to identify class members “without extensive and individualized
fact-finding or ‘mini-trials.’” In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795
F.3d 380, 396 (3d Cir. 2015). A plaintiff must show by the preponderance of the evidence that
this requirement is met. Id.
Dockery and the Purchaser Defendants do not raise any specific arguments about class
definition or ascertainability in their briefs. Heretick argues that the class and subclass are
overbroad (and thus not properly defined) because they include individuals who were not harmed
and are not ascertainable because members may be barred by the statute of limitations. As
mentioned, the Purchaser Defendants’ counsel contended at oral argument that defining the
Proposed Classes to include only those sellers with estoppel lawyers who were paid out of the
proceeds of the transaction raises separate ascertainability concerns.
Upon review of the record and arguments, the Court concludes that the Proposed Classes
as Dockery has defined them are not currently and readily ascertainable.4 Because the Proposed
Classes include only those whose Estoppel Lawyers were paid on a contingent basis out of the

proceeds of the sale, extensive and individualized fact finding will be necessary to determine
which class members fit this criteria, if any.
Dockery discusses the evidence on contingent fees in the context of the predominance
element of the Rule 23(b)(3) analysis; however, the same evidence is relevant to ascertaining the
class. Dockery points to (1) a sample from a spreadsheet produced by Wentworth in discovery
that shows payments made to estoppel lawyers, ECF No. 246-15, (2) Wentworth’s 30(b)(6)
witness’s testimony that “Wentworth maintain[s] records reflecting its payment of fees to
estoppel lawyers,” ECF No. 246-6 at 178-79, and (3) an invoice sent by an Estoppel Lawyer to
Wentworth requesting a check payable to the Estoppel Lawyer from Dockery’s funds, ECF No.

246-3. Dockery claims that this evidence shows, as a matter of Defendants’ policy, that no
payments were made to these Estoppel Lawyers until the transaction on which the lawyer had
worked had been court-approved and funded.
The Purchaser Defendants claim that they had no preference how attorneys collected their
fees. ECF No. 60-1 ¶ 20. It cites a provision in one of the sellers’ purchase agreements saying
“Funds are being disbursed to my client directly. In order to be paid in full for my services,

4 Heretick’s argument that the Proposed Classes fail the definition requirement was premised on
the argument that Mr. Scherf acknowledged that some class members had no harm under his
damages methodology. Because Dockery’s narrowing of the class definition to exclude those
who received discount rates above Mr. Scherf’s floor renders that argument moot, the Court does
not consider it here.
please disburse $ ___ to me directly from my client’s purchase price upon funding.” See ECF
No. 261-16 at 35.
The parties point to the following testimony from Estoppel Lawyers, as well. First, every
Estoppel Lawyer who was asked denied being paid on a contingent basis. See ECF No. 246-34,
Hemphill Dep. at 28 (“I can’t remember any time in my entire practice where I’ve ever done a

contingent fee.”); ECF No. 246-35, Hassell Dep., at 44 (“[Y]ou didn’t have an arrangement with
your clients where you were only going to get paid if they went through with the transaction,
correct?” . . . No. They owed me for my time, period.”).
Dockery notes that these attorneys also acknowledged that they had worked on
transactions that were not consummated, and that in such instances they received no payment.
See 246-34, Hemphill Dep. at 28 (“I have represented a number of clients that were not of
means, that things didn’t go well that I didn’t bill them. . . [S]ometimes it just doesn’t work and
they don’t pay my b[i]ll.”), ECF No. 246-35, Hassell Dep. at 43 (Q: “What about for the
individual who walked away from the transaction?” . . . A: “Well, the sad thing is, I think the guy

was broke. I don’t think I ever got paid.”). Plaintiff also directs the Court’s attention to Estoppel
Lawyer Rhoton’s testimony, who testified as follows after being asked if, “upon receiving legal
advice from you, Mr. Dockery had decided not to go through with this transaction, [whether] you
[would] have waived your fee”:
Not completely. At that time I had a $50 consultation fee, so I may have charged
him something for my time. I would not have probably charged him what I would
initially have charged him to complete the whole deal. But to compensate myself
for a portion of my time, I probably would have charged him something. Or he
would have brought me a bag of apples. You never know.

ECF No. 246-16, Rhoton Dep. at 73-74.
The parties also point to their expert reports and expert testimony relating to the
contingency issue. Plaintiff’s expert Professor Baker based his expert opinion upon the factual
assumption that the “lawyers agreed with Defendants that their compensation would be sent to
them by the Defendants after court approval of the sale at issue. This effectively made the
payments contingent, and also meant that as a practical matter counsel were paid by the

Defendants, and not by their ostensible clients.” ECF No. 246-12, Baker Report at 10.
Defendants’ expert, attorney Leslie Haley–whose expertise and factual basis for her
opinion Dockery disputes–stated in her report that “Payment of legal fees from legal proceeds
was not a contingent fee.” ECF No. 260-21, Haley Report at 10. In her deposition, she agreed
that a matter “may be what you look at as a contingent matter” if “the lawyer knows as a
practical matter there is no way I’m going to get paid unless this transaction closes.” ECF No.
274-2 at 107-08. She later stated that: “[W]e have nothing that evidences the fact that the lawyer
wasn’t just willing to say there may be a case or two of these where the client really is not able to
pay my fee at the end of the day . . . I mean, I guess that still would be someone contingent on

the outcome, but the lawyer is willing to [] take that risk.” Id. And when asked whether that
situation “is contingent” or not, she agreed it was contingent. Id.
Dockery discusses contingency fees slightly differently through his briefs. He claims that
payments were contingent because “as a matter of reality, the lawyers would only get paid if the
transaction . . . was approved by the court and consummated.” Reply Br. at 21. He suggests that
a payment is contingent by the pure fact that an attorney’s payment came from the proceeds of
the sale. See Reply Br. at 11 (stating that the definition includes only lawyers who were paid on
a contingent basis out of the proceeds, and that a lawyer whose compensation was received from
the seller through some other means is not part of the Proposed Classes). But Dockery also
argues that a lawyer’s agreement to be paid after consummation of a transaction is an agreement
to accept a contingency fee. Pl.’s Br. at 22. He also endorses Ms. Haley’s suggestion that a
payment would be contingent if a lawyer knows as a practical matter that he will not be paid
unless the transaction closes, or is willing to take the risk of their client not being able to pay the
fee at the end of the day. Reply Br. at 7-8.

Because Dockery endorsed those other definitions, the Court assumes that Dockery
intended them to be part of his class definition, as well. Setting aside the question of whether
such an arrangement constitutes a contingency fee under the law, the Court looks to
“contingency fees” as Dockery has defined them and to whether Class Members meeting such a
definition are readily ascertainable, and concludes that they are not. The class-wide evidence
that Dockery references is insufficient to show by a preponderance of the evidence that members
of the Proposed Classes can be ascertained without determining on a case-by-case basis whose
transactions involved Estoppel Lawyers who were paid on a “contingent basis” out of the
proceeds of the transaction as Dockery has defined contingency.

There is no class-wide evidence sufficient to prove that the Purchaser Defendants agreed
with the Estoppel Lawyers that their compensation would be sent to them by the Purchaser
Defendants after court approval of the sale at issue. In order for the fee structure to purportedly
affect the Estoppel Lawyers’ representation of their clients, that “agreement” must have been
made before or during the representation, rather than after. The fact that Wentworth kept a list of
payments to Estoppel Lawyers and that at least one Estoppel Lawyer invoiced Wentworth for
payment from his client’s funds does not show by the preponderance of the evidence that such an
agreement existed with each lawyer. And while paperwork in one cited purchase agreement in
the record shows that Wentworth’s preprinted purchase agreement gave the option of having
payment remitted from the client’s account, suggesting the possibility of an agreement, that one
contract provision is insufficient to show an agreement existed with every client’s lawyer.
Moreover, there is no class-wide evidence to prove that each Estoppel Lawyer knew as a
practical matter that he or she would not be paid unless the transaction closed. Dockery
repeatedly takes the position that it was the Purchaser Defendants who paid the Estoppel

Lawyers, but he has put forward no evidence of a case in which the attorney’s fees were paid out
of the Purchaser Defendants’ proceeds. Rather, each payment was taken out of the seller’s
portion of the proceeds, as Dockery concedes. See Pl.’s Br. at 41 (“[E]ach class member had the
lawyer’s fee deducted from the amount received in the transaction.”). While attorneys obviously
could not collect their fees from their client’s share of the proceeds of a sale if that sale did not
occur, this fact does not necessarily mean that attorneys could not have collected their fees from
their clients in some other manner or knew that they could not do so. Therefore, the Court would
need to conduct individualized and extensive fact-finding to determine whether each Estoppel
Lawyer knew before representing their client that they would have no other means of collecting

their fees from him or her if the transaction were not approved. This inquiry would involve
understanding any discussions between the Estoppel Lawyer and client at the beginning of the
lawyer’s representation regarding fee arrangements as well as the lawyer’s understanding of the
client’s ability to pay.
Dockery points out that there are no instances in the record of an Estoppel Lawyer
receiving payment for a transaction that was not consummated. That may be true, but the burden
is Dockery’s to show that Estoppel Lawyers knew they would not be paid without the transaction
occurring. As explained, this cannot be done with common proof.
Apart from the contingency fee issue, Heretick argues that the class is not ascertainable
because the Proposed Classes are not limited to individuals whose claims are not barred by the
statute of limitations. He cites district court cases finding that “a class may only include those
members whose claims are not barred by the applicable statute of limitations.” Lanning v.
SEPTA, 176 F.R.D. 132, 148 (E.D. Pa. 1997) (excluding putative class members from the class

under the Court’s numerosity analysis); see also Jackson v. SEPTA, 260 F.R.D. 168, 183 (E.D.
Pa. 2009) (finding a class action overbroad when it included putative class members who were
barred by the statute of limitations).
The Court is not persuaded. Those cases are distinguishable because they involve
putative class members both clearly within the statute of limitations and members who are time-
barred, while the putative members of the Proposed Classes here all have statute-of-limitations
issues, as will be explained below. Further, those cases involved Rule 23 prerequisites and
elements other than the ascertainability of the class. And finally, the Third Circuit has discussed
potentially time-barred putative class members under other elements of Rule 23 without finding

the classes were not readily ascertainable. See, e.g., Cmty. Bank of N. Va., 795 F.3d at 396; see
also In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002) (discussing whether statute of
limitations issues predominate in a class involving a class period mostly outside of the statute of
limitations).
Nonetheless, the Court agrees that the contingency fee issue renders the Proposed Classes
not readily ascertainable. But the Court also “recognizes its ability to tailor the class definition
to make it workable.” Jackson v. SEPTA, 260 F.R.D. 168, 183 (E.D. Pa. 2009); see also
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (“[H]olding
plaintiffs to the plain language of their definition would ignore the ongoing refinement and give-
and-take inherent in class action litigation, particularly in the formation of a workable class
definition.”).
Therefore, the Court could remove the “on a contingency basis” provision of the
definition of the Proposed Classes. This change would make the relevant aspect of the definition
include those class members whose Estoppel Lawyers were paid out of the proceeds of the

transaction without respect to whether such payments were contingent. This aspect of the
definition is readily ascertainable from the database of payments Wentworth maintains. And
because the Proposed Classes are ascertainable in all other respects, such a definitional change
would allow the Proposed Classes to satisfy the prerequisites to Rule 23. Because the
“contingent basis” aspect of Dockery’s proposed class definition is not necessarily the death
knell for the Proposed Classes, then, the Court will address the Rule 23 factors on the assumption
that the definition is so narrowed.
2. Rule 23(b)(3) Requirements

Because Dockery seeks certification under Rule 23(b)(3), he must show by the
preponderance of the evidence that “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).
a. Predominance

The predominance requirement of Rule 23(b)(3) dictates that “questions of law or fact
common to class members [must] predominate over any questions affecting only individual class
members.” Fed. R. Civ. P. 23(b)(3). This standard is “far more demanding” than commonality,
and “require[s] more than a common claim.” Hydrogen Peroxide, 552 F.3d at 311. In assessing
predominance, the Court must “examine each element of a legal claim through the prism of Rule
23(b)(3).” BMW of N. Am., 687 F.3d at 600.
The plaintiff must show by the preponderance of the evidence that the elements of its
legal claim are “capable of proof at trial through evidence that is common to the class rather than
individual to its members.” Hydrogen Peroxide, 552 F.3d at 311. Predominance “does not

require that common questions will be answered, on the merits, in favor of the class.” Neale v.
Volvo Cars of N. Am., 794 F.3d 353, 371 (3d Cir. 2015). Rather, the “predominance requirement
focuses on whether essential elements of the class’s claims can be proven at trial with common,
as opposed to individualized evidence.” Hayes, 725 F.3d at 359. “Because the nature of the
evidence that will suffice to resolve a question determines whether the question is common or
individual, a district court must formulate some prediction as to how specific issues will play out
in order to determine whether common or individual issues predominate in a given case.”
Hydrogen Peroxide, 552 F.3d at 311 (quotation marks omitted). However, Rule 23(b)(3) “does
not require the absence of all variations in a defendant’s conduct or the elimination of all

individual circumstances.” Reyes v. Netdeposit, LLC, 802 F.3d 469, 489 (3d Cir. 2015). If
“issues common to the class overwhelm individual issues, predominance should be satisfied.”
Neale, 794 F.3d at 371 (citation omitted) (emphasis added).
Dockery notes that RICO cases are routinely certified as class actions. Pl.’s Br. at 36
(collecting cases). As the Third Circuit has explained, when a party seeks certify a class to bring
a RICO claim, the “focus is on the defendant’s conduct.” Reyes, 802 F.3d at 486. “Due to the
conspiratorial nature of allegations . . . in RICO actions, such cases often present common
questions of law and fact and are frequently certified as class actions.” In re Ins. Brokerage
Antitrust Litig., 282 F.R.D. 92, 106 (D.N.J. 2012).
Dockery argues that common issues predominate over individual issues. When a case
challenges systemic operations, and when it attacks policies that are applied to all class members,
such systems and policies necessarily mean that common questions predominate. See, e.g.,
Reardon v. ClosetMaid Corp., 2013 U.S. Dist LEXIS 169821 at *2 (W.D. Pa. Dec. 2, 2013).
And as the Third Circuit has noted, “[p]redominance is a test readily met in certain cases alleging

consumer or securities fraud . . . [or in cases] involving a common scheme to defraud.” In re
Prudential Ins. Co., 148 F.3d 283, 314 (3d Cir. 1998). Against this background, Dockery asserts
that common issues predominate because the evidence shows that the corporate policies at issue
applied across the board and to the transactions for each member of the Proposed Classes.
The predominance inquiry requires the Court to consider whether essential elements of
Dockery’s RICO claims and conspiracy claim can be proven at trial with common evidence.
“When Rule 23 is the mechanism to redress alleged RICO violations, predominance and
commonality are satisfied if each element of the alleged RICO violation involves common
questions of law and fact capable of proof by evidence common to the class.” Reyes v.

Neteposit, 802 F.3d at 489 (emphasis in original).
To reiterate, the elements of the RICO violations alleged here require (1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering activity. See In re Ins. Brokerage, 618
F.3d at 362. The “racketeering” alleged is federal mail fraud, which requires (1) a scheme to
defraud, (2) the use of the mails to further that scheme, and (3) fraudulent intent. See United
States v. Pharis, 298 F.3d at 234. And to bring a civil RICO claim, a plaintiff must have suffered
an injury to his business or property that constitutes a “concrete financial loss,” and the
Defendants’ RICO violations must have proximately caused that loss. Maio v. Aetna, Inc., 221
F.3d at 483. So, to satisfy the predominance requirement, Dockery must show by the
preponderance of the evidence that questions capable of common proof predominate under each
of the above elements. As will be explained, Dockery has not met this burden.
i. Racketeering Activity
A major issue at this stage is whether the alleged predicate act of mail fraud is capable of
common proof. As the basis for his mail fraud claim, Dockery cites the representation that

Heretick made on behalf of the Purchaser Defendants in the petitions to the Portsmouth court. In
Dockery’s case, these representations took the form of the following statement by Heretick in his
papers petitioning the Portsmouth court to approve the transactions:
[1] That the transferor/payee has been advised in writing by the transferee to seek
independent professional advice regarding the transfer and [2] has received such
advice reflected in the letter of his legal counsel which is attached hereto.

ECF No. 264-28.

The RICO scheme alleged here relies on a determination that either, or both, of these
statements is a misrepresentation. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1415 (3d Cir. 1991) (explaining that a scheme or artifice to defraud under the mail fraud statute
“must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to
deceive persons of ordinary prudence and comprehension”). With the caution that the Court
should only delve into the merits of the case to the extent necessary to determine whether Rule
23 is met, see, e.g., In re Hydrogen Peroxide, 553 F.3d at 320-22, in mind, the Court turns to the
two alleged misrepresentations to determine whether Dockery can establish with common proof
that there was a misrepresentation for purposes of proving the predicate act of mail fraud.
aa. First Representation: Advising
Dockery claims that the representation “[t]hat the transferor/payee has been advised in
writing by the transferee to seek independent professional advice regarding the transfer” is false
in every instance. Therefore, Dockery claims, the issue of Defendants’ racketeering activity and
pattern thereof are capable of common proof. The proof required to determine whether this
statement was a misrepresentation is as follows: (1) the statement itself made by Heretick in the
petitions to the Portsmouth court; and (2) relevant statements and disclosures in the Purchase
Agreement paperwork between the Purchaser Defendants and the annuity sellers.

Based on the evidence in the record of petitions sent to the Portsmouth court on
Dockery’s behalf, Heretick’s representation was identical in each instance. See, e.g., ECF No.
262-29 at 2-3; ECF No. 262-30 at 2. Similarly, the statements made to Dockery in his
transactions with J.G. Wentworth are consistent across transactions. See e.g., ECF No. 262-28;
ECF No. 262-29; ECF No. 262-30. While the statements made to Dockery in his transactions
with purchasers other than Wentworth are slightly different, see ECF No. 25, the difference
between these statements are immaterial for purposes of whether Heretick’s characterization of
the statements made to annuity sellers was false. So, the statement is either false for all or false
for none, and the falsity is capable of common proof. See Dalton v. Lee Publications, Inc., 270

F.R.D. 555, 563 (S.D. Ca. 2010) (finding that plaintiff’s claim is subject to common proof based
on uniform contracts).
However, Dockery cannot premise his mail fraud claim on this statement because the
representation “that the transferor/payee has been advised in writing by the transferee to seek
independent professional advice regarding the transfer” was not false. Dockery premises his
argument on the Virginia Act, which requires the court to find that the “payee has been advised
in writing by the transferee to seek independent professional advice regarding the transfer and
has either received such advice or knowingly waived in writing the opportunity to seek and
receive such advice.” Va. Code § 59.1-476(2). “Independent professional advice” under the Act
is defined to mean “advice of an attorney, certified public accountant, actuary or other licensed
professional advisor.” Id. § 59.1-475.
According to Dockery, this section means that sellers must have been told that they
should receive the advice of either a lawyer, an accountant, a financial advisor, or another
licensed professional, and that the Purchaser Defendants must have given sellers the opportunity

to waive such advice. Dockery argues that, because sellers were not advised to seek independent
advice from any of a lawyer, accountant, financial advisor, or other licensed professional, but
were rather required to consult a lawyer and could not waive the right to do so, Defendants
stripped sellers of the rights to another type of advisor and the right to waive advice. And
Dockery further argues that Heretick’s representation stated that Defendants did what he alleges
Defendants did not do: make the statutorily required representations. These arguments miss the
mark.
While the statute defines “independent professional advice” to “mean[] advice of an
attorney, certified public accountant, actuary or other licensed professional advisor,” nothing in

the statute requires a seller to be explicitly advised of the opportunity to consult each or any of
those four types of professionals. As long as an individual is advised to consult one of those
types of professionals, the individual has been advised to seek “independent professional advice”
within the meaning of the statute. See generally 1A N. Singer, Sutherland on Statutes and
Statutory Construction, § 21.14 (4th ed. 1980) (noting that “[w]here a failure to comply with any
[statutory] requirement imposes liability, the disjunctive ‘or’ should be used”).
Nor does the fact that Wentworth required sellers to meet with a lawyer render the
representation that sellers were advised to seek independent professional advice a lie. As a
general matter, advising someone to seek advice is not mutually exclusive with requiring
someone to seek such advice in order to proceed with a transaction. Moreover, the disclosures in
Dockery’s purchase agreements demonstrate that Heretick’s representation was not false. In the
acknowledgment section of one of his Purchase Agreements, Dockery acknowledged that
Wentworth “advised you must obtain independent legal representation prior to executing this
agreement.” ECF No. 264-33 (emphasis added). And in the disclosure statement, Wentworth

noted that “You should consult your own counsel, accountant, or financial advisor regarding any
federal or state income tax consequences arising from the proposed transfer,” and that “[Y]ou are
strongly urged to consult with an attorney who can advise you of the potential tax consequences
of this transaction.” Id.
These disclosures and acknowledgements demonstrate that the Purchaser Defendants
advised sellers to seek independent professional advice. The fact that Wentworth did not allow
sellers to waive their right to advice does not negate that the advice to seek counsel was given.
Nor did Heretick falsely state that the Purchaser Defendants gave the sellers the option to waive
their right to advice.5 Therefore, this representation was not a lie and, therefore, the predicate act

of mail fraud is not capable of common proof via this representation.
bb. Second Representation: “Received Such [Independent
Professional] Advice”

Because Dockery cannot establish that a misrepresentation was made through common
proof via the first representation, he is left with attempting to demonstrate that sellers did not

5 In none of the petitions to the Portsmouth court in the record involving a transaction with
Wentworth did Heretick represent that a seller had “received independent professional advice or
knowingly waived in writing the opportunity to seek and receive such advice.” In any event, the
statute’s waiver language does not create a right to waive advice that must be respected by any
purchaser, but rather creates a floor that purchasers are not prohibited from exceeding.
Plaintiff’s counsel appeared to concede as much at oral argument. See ECF No. 280 at 25 (“If
they had said to the court, we require this, we have not told people that they have the right to
waive, then I wouldn’t have this claim.”).
receive “independent professional advice” and that the Purchaser Defendants and Heretick knew
that Heretick’s representation that “independent professional advice” was given was false.
Dockery argues that he can show that the Estoppel Lawyers were per se not
“independent” because of the system Defendants constructed that affected every Estoppel
Lawyer in the same way. In his view, every Estoppel Lawyer was not independent because he or

she suffered from a conflict of interest by being paid on a contingent basis, because the
Purchaser Defendants controlled what the Estoppel Lawyers told the Portsmouth court via the
Estoppel Letters, because Estoppel Lawyers let their clients affirm to the Portsmouth court that
the transaction was in their best interest, and because the lawyers in the subclass had clients
referred to them by the Purchaser Defendants. See Reply Br. at 7. But he claims that the Court
need not decide at this stage whether this structure rendered lawyers per se not independent; all
the Court must do is determine whether the structure is capable of common proof.
Dockery’s theory of the case depends on a number of premises. First, Dockery assumes
that “independent professional advice” means advice given by a lawyer in compliance with

applicable rules of professional conduct. Specifically, he assumes that when Heretick told the
Portsmouth court that sellers received “independent professional advice,” he was telling the
Court that the Estoppel Lawyer in question did not suffer from any conflicts of interest as
articulated by the Virginia Rules. Those rules state in relevant part that a conflict of interest
exists if “there is significant risk that the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to . . . a third person or by a personal interest of the
lawyer.” Va. R. Prof’l Conduct 1.7(a)(2); see also Reply Br. at 25. So, Dockery’s theory of mail
fraud relies on the idea that the structure the Purchaser Defendants imposed created a significant
risk of material limitation to the Estoppel Lawyers’ representation, and that such risk (and
therefore conflict of interest and therefore lack of independence) exists regardless of the advice
given.
Inherent in that premise are two other premises. First, that the conflict of interest asserted
above is not waivable. Because if the alleged conflicts of interest were waivable, individual
inquiries into whether the conflict was disclosed and waived must be made. Second and

relatedly, Dockery assumes that complying with Virginia Rule 1.7 is something that can be
assessed objectively based on common risks. For if a lawyer’s subjective belief that his
representation was limited is relevant to determining whether he has violated Rule 1.7, then a
lack of “independence” could not be established by common proof.
Defendants argue that independence or lack thereof cannot be proven on a class-wide
basis. First, they attack the premise that Dockery can prove per-se non-independence with
common proof by arguing that the elements of the scheme cannot be proven on a class-wide
basis. The Purchaser Defendants also argue that the attorneys had ethical obligations to ensure
the statements they made in their Estoppel Letters were accurate. Therefore, this Court must

evaluate whether each of these Estoppel Lawyers violated his or her ethical obligations by
knowingly including false statements in their Estoppel Letters that the lawyers had acted as
independent counsel, and whether the Defendants nonetheless had the right to rely on the
statements in those letters. Purchaser Defendants’ Br. at 37-39. Heretick also argues that
whether the Estoppel Lawyers were independent turns on individualized inquiries, including the
nature and extent of advice provided. Heretick Br. at 43-45.
As a preliminary matter, Dockery has not pointed to any legal authority demonstrating
that the phrase “independent professional advice” has a coextensive meaning with “advice given
by a lawyer suffering from no conflicts of interest as defined by the Virginia Rules of
Professional Conduct.”6 Nor has the Court found any. Indeed, the Virginia Act defines
“independent professional advice” to mean “advice of an attorney, certified public accountant,
actuary or other licensed professional advisor” without mention of the adviser’s compliance with
his ethical responsibilities. Va. Code § 59.1-475.
Nonetheless, the Court does not find it necessary to resolve for purposes of class

certification the merits issue of whether Heretick’s statement about “independent professional
advice” reflects the lawyers’ compliance with their ethical responsibilities. Because Dockery’s
mail fraud claim is premised on the theory that Heretick was representing Estoppel Lawyers to
not have a conflict of interest, the Court will consider the proof required to evaluate that theory
and leave for summary judgment whether that theory succeeds under the law.
Dockery’s theory that a “significant risk that the representation of [a seller] will be
materially limited by the [Estoppel Lawyer’s] responsibilities to . . . [the Purchaser Defendants]
or by a personal interest of the lawyer,” Va. R. Prof’l Conduct 1.7(a)(2), is premised on the
alleged structural taint of each lawyer. Again, that alleged taint is that the lawyers were paid by

contingency fee out of the proceeds of the transaction; that the Purchaser Defendants told the
Estoppel Lawyers what to put in their Estoppel Letters and therefore directed what the Estoppel
Letters said to the Portsmouth court on behalf of their client; that the Estoppel Lawyers never
disclosed their function as an estoppel against their client to their client; that Estoppel Lawyers

6The Sioteco case both parties cite involved the California Structured Settlement Transfer Act.
See 321 Henderson Receivables Origination LLC v. Sioteco, 93 Cal.Rptr.3d 321 (Cal. Ct. App.
May 6, 2009). That Act has different requirements, including specific proscriptions against
advice from individuals whose compensation is affected by the occurrence of the sale or who
were referred by the purchaser. Cal. Ins. Code § 10134, subd. (f). Notably, the Virginia Act
does not include these caveats. In any event, Sioteco does not discuss rules of professional
responsibility in its discussion of the independent professional advice requirement.
allowed their client to sign an affidavit representing that the transaction was in the client’s best
interest; and that every seller in the Frequent Flyer subclass had an attorney who was referred to
them by the Purchaser Defendants and who received frequent referrals from them. However,
even if the existence of this structural taint could prove that the lawyers per se had conflicts of
interest and were therefore not independent, Dockery has not met his burden to show by the

preponderance of the evidence that this the structure exists in the same way for each lawyer.
First, one of the components of the alleged scheme is that the Estoppel Lawyers were
paid on a contingent basis. Dockery argues that the issue at this stage is not whether there was a
contingency fee arrangement, but whether the presence or absence of a contingency fee
arrangement is a class-wide question.
The Court concludes that Dockery has not met his burden to show that the presence or
absence of a contingency fee arrangement is capable of common proof. Dockery claims in part
that a fee is contingent if a lawyer is paid out of the proceeds of the transaction, knows in
practicality that she would only be paid if the transaction is approved, and agrees with the

Purchaser Defendants that she would be paid out of the proceeds of the sale. Even assuming
such an arrangement could be a contingency fee arrangement under the law, Dockery’s purported
proof that the payments were contingent is that nothing in the record shows a lawyer being paid
when a transaction did not go through. But whether a lawyer knew that he would only be paid if
the transaction were approved cannot be proven on a class-wide basis; rather, as explained, it
would depend on what that individual lawyer knew and agreed upon with his client. Dockery
has also not established by the preponderance of the evidence his assumption that Estoppel
Lawyers agreed with Defendants that their compensation would be sent to them by Defendants
after court approval of the sale. See supra.
Second, Dockery’s expert opined that an attorney representing the seller of SSA
payments is not independent if he knowingly allows his client to testify to the Virginia court that
the transaction is in the client’s best interest unless the attorney has a good faith basis for
believing that the statement is true. See ECF No. 246-12 at 3. However, “best interest” does not
necessarily mean “receive the best deal possible,” and whether the transaction was in the seller’s

best interest is an individualized determination. The Virginia Act does not preclude courts from
approving a sale that does not meet a certain threshold discount rate. Rather, it requires courts to
determine that an SSA-rights transfer “is in the best interest of the [seller], taking into account
the welfare and support of the [seller’s] dependents.” Va. Code § 59.1-476. The second clause
makes clear that the “best interests” determination is not limited to whether the discount rate is
fair or comparable to other rates that may be available. Rather, it requires the consideration of, at
minimum, the long-term ramifications on a seller’s dependents of giving up a payment stream
over the course of many years in exchange for discounted present cash and, at maximum, the
totality of the circumstances of the transaction. Compare Va. Code § 59.1-476 (requiring a sale

to be in the best interest of a seller taking into account their dependents) with N.C.G.S. § 1-
543.12 (setting a discount rate threshold that must be met to approve an SSA sale in North
Carolina). An annuity seller’s representation that his annuity payment stream is in his “best
interest” similarly involves factors other than whether a more favorable rate for selling his
annuity stream exists. Therefore, determining whether Estoppel Lawyers allowed affiants to
represent something that is not true can only be done on a case-by-case basis.
Third, Dockery’s expert opined that an attorney representing a seller is not independent if
the attorney “[i]s selected for the client by the purchaser or if material facts regarding the
relationship between the purchaser and the attorney are known to the attorney but not disclosed
to the seller/client.” ECF No. 246-12 at 2. But whether a Frequent Flyer was actually selected
by a Purchaser Defendant for a seller in the subclass, as opposed to acquired in some other way,
cannot be determined on a class-wide basis. Wentworth’s 30(b)(6) designee testified that if a
seller needed help finding an attorney, Wentworth would suggest contacting a bar association or
referral service, offer to introduce customers to previous customers, or at times refer an attorney

if the customer had no one else to represent them. ECF No. 260-3 at 146. While two of the four
Frequent Flyers testified that they received referrals from Wentworth, see ECF No. 246-35 at 43;
id. 246-34 at 17, Wentworth admitted to referring attorneys, and the four Frequent Flyers
represented hundreds of sellers between them, individual inquiries would still need to be made
regarding whether each seller in fact received their Frequent Flyer attorney via referral versus
from another seller or another means.
To the extent that Dockery argues whether a particular seller received his or her Frequent
Flyer lawyer by referral is irrelevant because the Frequent Flyers, by virtue of receiving so many
referrals, had a conflict of interest in every instance, there are still individual inquiries that need

to be made. Namely, whether there are “material facts regarding the relationship between the
purchaser and the attorney” that are “known to the attorney but not disclosed to the seller,” as
Dockery’s expert assumed, could only be determined on a case-by-case basis because the
conflict would depend on whether the material facts were disclosed. Moreover, Professor Baker
admitted that, to analyze whether this criterion is met, “you would have to know what the
attorney knew about the relationship.” ECF No. 264-14 at 348.
Finally, another issue facing Dockery’s conflict-of-interest “independence” theory is
whether the alleged conflicts of interest faced by the Estoppel Lawyers are waivable. The parties
dispute this, although Dockery provides no support for his argument that the conflicts are not
waivable–a necessity for rendering his “independence” theory capable of common proof. The
Court concludes that the waiver issue also requires an individualized inquiry. Virginia Rule
1.7(b) allows lawyers to represent clients notwithstanding a conflict of interest if, in part, the
lawyer “reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client.” Va. R. Prof’l Conduct 1.7(b). This test “necessarily

includes an objective component.” Simms v. Deggeller Attractions, Inc., Nos. 7:12-00038, 7:12-
00161, 2013 WL 49756 (W.D. Va. Jan. 2, 2013) (discussing Va. R. Prof’l Conduct 1.7(b); see
also First Prof’ls Ins. Co. v. Sutton, 607 F. App’x 276, 283 (4th Cir. 2015) (explaining that the
comparable Rule 1.7 of the South Carolina ethical rules is measured under an objective test)
(citations omitted).7 The comments to Rule 1.7 explain that a client may consent to
representation notwithstanding a conflict unless “a disinterested lawyer would conclude that the
client should not agree to the representation under the circumstances.” Va. R. Prof’l Conduct
1.7, cmt. 19.
Because Dockery has not shown by the preponderance of the evidence that the

“circumstances,” as explained above, are uniform across the class, it is not possible to determine
on a class-wide basis that a disinterested lawyer would conclude that representation was
impossible under the circumstances. Moreover, Dockery’s expert suggests that at least two
elements of the alleged scheme are waivable. Professor Baker notes that contingency fee
agreements are allowed in Virginia as long as they are in writing, and he asserts that a lawyer in
this context must explain the potential conflict and obtain consent–suggesting that the purported
conflict is waivable. See ECF No. 246-12 at 13. Professor Baker also assumes that in no case

7 Therefore, contrary to the Purchaser Defendants’ argument, the issue is not merely a subjective
one based on what the Estoppel Lawyer himself believed.
was a client of a Frequent Flyer attorney told of the compromised independence–also suggesting
that any such purported conflict would be waivable. In short, the conflicts issue requires
individualized determinations. If the conflict is waivable, then individual issues regarding
whether the waiver was secured will arise. And Dockery cannot demonstrate by common proof
that conflicts are not waivable for the Estoppel Lawyers of the members of the Proposed Classes.

Because Dockery cannot prove that his Estoppel Lawyers were in violation of the
Virginia Rules of Professional Conduct with common proof, his theory of mail fraud will involve
a number of individual issues that will prevent class certification.
ii. Association-in-Fact Enterprise
To succeed with class certification, Dockery also needs to demonstrate that the enterprise
element of his RICO claim is capable of common proof. See Reyes v. Neteposit, 802 F.3d at 489.
Count I of Dockery’s claim includes three association-in-fact enterprises. Each of these
enterprises consist of Heretick, one of the Purchaser Defendants, and “other persons,” notably
including the Estoppel Lawyers. Judge Baylson previously determined that Dockery plausibly

alleged the existence of association-in-fact enterprises. ECF No. 108. But the question at this
stage is whether the enterprise element of Dockery’s first RICO count can be proven on a class-
wide basis.
Association-in-fact enterprises “must have at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.” In re Ins. Brokerage Antitrust Litig., 618 F.3d
300, 366 (3d Cir. 2010). In short, an association-in-fact enterprise is a “group of persons
associated together for a common purpose of engaging in a course of conduct.” Boyle v. United
States, 556 U.S. 938, 946 (2009). Such an enterprise “is proved by evidence of an ongoing
organization, formal or informal, and by evidence that the various associates function as a
continuing unit.” Id. at 945; see also id. at 946 (“The concept of association requires both
interpersonal relationships and a common interest.”) (citations omitted) (cleaned up). The
“existence of an enterprise is an element distinct from the pattern of racketeering activity, and
proof of one does not necessarily establish the other.” Id. at 947. However, “proof of a pattern of

racketeering may be sufficient in a particular case to permit a jury to infer the existence of an
association-in-fact enterprise.” Id.
Dockery alleges that the scheme at issue here was “designed not to advance the legitimate
legal interests of [Heretick’s] clients, the Purchaser Defendants, but instead solely and entirely to
defeat the . . . regulatory scheme, and to enable sales of the income streams from [sellers] on
terms that . . . would never be accepted by a beneficiary of an SSA if the beneficiary had been
advised by a well-informed and objective advisor; and . . . would never be approved after
meaningful judicial review.” SAC ¶ 12. His Revised RICO Case Statement asserted that “each
[association-in-fact] enterprise had a common purpose, to obtain the valuable income streams of

Mr. Dockery and the other SSA beneficiary victims of the scheme at prices that were grossly
below the market value of those income streams.” ECF No. 77 at 24.
To satisfy predominance, Dockery must demonstrate that the Purchaser Defendants,
Heretick, and Estoppel Lawyers were “associated together for a common purpose of engaging in
a course of conduct.” Boyle, 556 U.S. at 946. The Purchaser Defendants argue that the
enterprise element requires agreement between the various persons constituting the association-
in-fact, but have pointed to no case law demonstrating that something beyond a shared common
purpose is required to satisfy that aspect of the element. Nonetheless, the Court finds that
Dockery cannot demonstrate with common proof that the Estoppel Lawyers shared the common
purpose of ensuring class members received a below-market rate. Rev. RICO Case Statement,
ECF No. 77 at 24.
Violating Rule 1.7 of the Virginia Rules of Professional Conduct does not necessarily
mean that an Estoppel Lawyer acted with the purpose of ensuring his or her client received a
below-market rate for his or her SSA annuity. As explained, Rule 1.7 is violated if a lawyer has

a “significant risk” of “material representation,” and the lawyer has not received a waiver or does
not “reasonably believe[] that the lawyer will be able to provide competent and diligent
representation.” Va. R. Prof’l Conduct 1.7(b). Having a significant risk of a limitation and
failing to receive a waiver for that conflict does not mean a lawyer intended to exploit his client.
Therefore, proving whether an Estoppel Lawyer shared that purpose requires individual
inquiries. For example, record evidence from certain Estoppel Lawyers suggests that they likely
did not share the purpose of ensuring their clients sold their annuities at below-market rates. See
ECF No. 246-34 at 26 (“Did you feel as though you were acting as independent counsel to your
clients in representing them?” “Yes.”). For example, one lawyer testified that he would attempt

to negotiate better terms with Wentworth if his client desired him to do so–an action at odds with
the purported purpose of the enterprise. ECF No. 246-34 at 22. And another testified that he
told Dockery that if he could wait six or seven months, then he could get the whole amount
without selling to Wentworth. ECF No. 261-1 at 21. Moreover, while Dockery has suggested
narrowing the Proposed Classes’ definition to include only those who did not receive a market
rate as defined by Dockery’s expert, the truth of the “common purpose” allegedly shared by
Estoppel Lawyers is called into question by the fact that clients of many Estoppel Lawyers–
including the “Frequent Flyers” –received purportedly market-value discount rates under Mr.
Scherf’s methodology. See ECF No. 260-1. Thus, to determine whether any Estoppel Lawyer
acted with the purpose of ensuring their client sold their annuities at below-market values, there
would at minimum need to be individual inquiries into each Estoppel Lawyer’s relationship with
the Purchaser Defendants and what the Estoppel Lawyer understood that relationship to be,
whether the lawyer understood that he or she had a conflict of interest that had not been waived
or could not be waived and, most importantly, the advice that they gave their client.

To the extent that Dockery attempts to manufacture common failures of the attorneys’
advice to show that these Estoppel Lawyers shared the common purpose of ensuring their clients
received below-market rates, those alleged failures do not carry the day. For example, Professor
Baker opines that an attorney giving independent professional advice to a seller with respect to
an SSA sale necessarily also represents the seller in the Virginia court proceeding. ECF No.
246-3. He also opines that such a lawyer–if he believes the terms of the sale are not in the best
interest of his client–has an obligation to counteract his client’s affidavit stating the transaction is
in his best interest by informing the Court of his subjective belief to the contrary. Id. at 18.
But the Virginia Act does not require that the seller’s independent advisor believes the

transaction to be in the seller’s best interest–only the Court must so find. And as explained, the
‘best interest’ determination is broader than the financial terms of the sale, so Estoppel Lawyers
allowing their clients to sign affidavits stating that the transaction is in their best interest does not
necessarily mean that the lawyer violated their duty of candor. In short, because the Virginia Act
is not a guardian-ad-litem statute, the Act does not require that an individual’s advisor sabotage
the transaction if the advisee does not take his advice; in fact, the Virginia Rules of Professional
Conduct prohibit such actions. See Va. R. Prof’l Conduct 1.2(a) (“A lawyer shall abide by a
client’s decisions concerning the objectives of representation.”). Nor does the Virginia Act
require sellers’ independent advisors–whether they are attorneys, accountants, or financial
planners–to appear at the hearing on the sale. The fact that an Estoppel Lawyer did neither of
these things does not mean that the lawyer’s purpose was to ensure their client sold their
annuities at below-market value. Whether that purpose exists, then, can only be determined by
individual inquiries.8
To prove his RICO claims, Dockery must show that the enterprise-in-fact has a common

purpose. See Boyle, 556 U.S. at 946 (explaining that the concept of “association” “requires both
interpersonal relationships and a common interest”); see also Crabhouse of Douglaston Inc. v.
Newsday Inc., 801 F. Supp.2d 64, 77 (E.D.N.Y. 2011) (“[T]he purpose or purposes of the
enterprise must be common to all its members.”). Because of the individual inquiries required to
prove the enterprise element of Dockery’s first RICO claim, individual issues will predominate.
ii. Injury
Another element of establishing RICO liability is that the plaintiff must have suffered an
injury to his property or business by reason of a RICO violation. In re Ins. Brokerage, 579 F.3d
at 269-70; 18 U.S.C. § 1964(c). RICO injury requires “proof of a concrete financial loss, and not

mere injury to a valuable intangible property interest.” In re Avandia Mktg., Sales Practices &
Prod. Liab. Litig., 804 F.3d 633, 638 (3d Cir. 2015) (citations omitted). To establish liability,
Dockery must also show that the RICO violation was the but for and proximate cause of the
tangible injury suffered by the members of the proposed class. Reyes, 802 F.3d at 483 (citation
omitted). The proximate cause requirement dictates that there must be “some direct relation

8 Even if the alleged common purpose of the enterprise were to merely accomplish the sale,
rather than to ensure the client received a below-market rate deal–which is not the theory in
Dockery’s Revised RICO case statement–class certification would still not be appropriate.
Whether the Estoppel Lawyers shared that common purpose, rather than sought to accomplish
their client’s goals for the transaction or sought to provide them fair, unbiased advice regarding
the transaction independent of the result of that advice, is not capable of common proof for the
same reasons.
between the injury asserted and the injurious conduct alleged.” Id. (citing id.). To demonstrate
that relation, the “manipulation alleged must not be purely contingent on another event or
action.” St Luke’s Health Network, Inc. v. Lancaster Gen. Hosp., 967 F.3d 295, 300 (3d Cir.
2020). (citation omitted). This requirement “is employed in civil RICO as a limiting principle
intended to stymie a flood of litigation, reserving recovery for those who have been directly

affected by a defendant’s wrongdoing.” Id.
To satisfy predominance, the fact of damages must be susceptible to common proof, even
if the exact amount of damages cannot be proven on a class-wide basis. Reyes, 802 F.3d at 489.
Predominance has been satisfied in RICO cases when establishing an injury is not as conducive
to common proof as long as plaintiffs “have presented a plausible theory for proving a class-wide
injury as a result of the racketeering activities of the alleged enterprises at issue.” Id. (citations
omitted) (cleaned up). However, the injury requirement may require individual proof in some
cases. See In re Ins. Brokerage, 579 F.3d at 269-70.
Dockery argues that the class members were financially injured in two respects. First, the

Purchaser Defendants were able to charge a much higher discount rate than they would have
been able to charge if sellers had received independent advice. See ECF No. 280 at 26. Second,
sellers were forced to hire and pay attorney’s fees for the “pleasure” of receiving an estoppel
letter. ECF No. 246-1 at 33. And Dockery asserts that both injuries were proximately caused by
Defendants’ racketeering activity.
Higher Discount Rate. For the putative class’s first mode of injury, Dockery offers an
expert, Stephen Scherf, who created a methodology by which class-wide damages could
allegedly be determined. He opined that damages should be measured as the difference between
the amount the seller received when he sold his SSA payments and the amount he would have
received had the Virginia Act been properly followed, i.e., if the seller had received independent
professional advice. Scherf calculated that amount–the “appropriate market discount rate”–as
the prime rate plus six percent. ECF No. 246-37 at 6. He calculated this amount based on
different sources, including the rate AllState (an insurer with whom some class members had
annuities) charged to repurchase payment streams from its annuitants, the cost of capital to

Wentworth plus a reasonable cost of business operations and a profit margin, and the discount
rate mandated by the North Carolina SSA law. ECF No. 246-37.
Defendants argue that members of the class have suffered no injury under Scherf’s
methodology because well over 100 sellers in the Proposed Classes as originally defined
received more money than they would have using Scherf’s “appropriate market rate.” See ECF
No. 260-1. They also note that Scherf admitted in his deposition that a number of members of
the class would not have been injured under his methodology. Id. at ex. 41. Therefore, in
Defendants’ view, Dockery has not provided common proof that supports the proposition that
every member of the proposed classes has suffered RICO injury.

While Dockery suggested he would narrow the class to include only those who received a
rate worse than Dockery’s expert’s floor, this narrowing of the Proposed Classes does not fix the
RICO standing issue. Dockery has repeatedly represented to the Court that the actual advice or
lack thereof given by estoppel lawyers is irrelevant to his claim. See Tr. of Oral Argument at 23.
Again, Dockery’s position is that counsel were per se not independent advisors because the
Defendants’ scheme gave them conflicts of interest; therefore, the representations to the
Portsmouth court were false no matter how the lawyers advised their clients, and the Defendants
therefore committed mail fraud each time they submitted a petition with Heretick’s allegedly
false statement during the class period. And because the Portsmouth court allegedly relied on
Heretick’s statement to approve the transactions, class members were injured by having their
below-market-rate transactions approved through Defendants’ fraud. But even under that theory
of racketeering activity, for the reasons that follow, individual inquiries will be required to
determine whether receiving a discount rate worse than the prime rate + 6 percent was
proximately caused by Defendants’ RICO violation.

While Dockery’s theory of mail fraud may not depend on how a lawyer advised his
client, his theory of financial injury assumes that, because of the presence of a conflict of
interest, each Estoppel Lawyer did not provide the advice that an independent lawyer would
have. For example, Dockery’s damages expert assumed for purposes of his analysis that
estoppel lawyers did not try to negotiate better deals for their clients or tell their clients that they
should shop their deal or look for other funding alternatives. ECF No. 264-22 at 253.
But whether an Estoppel Lawyer did not provide the advice that a lawyer who did not
have any conflicts of interest would have simply cannot be known without inquiring into the
conversations between estoppel lawyers and their clients. The record at this point already shows

that advice deviated lawyer-to-lawyer. Compare ECF No. 246-35 at 69-70 (“I wanted to do
what I could for them, including calling Wentworth in many cases to try to improve the deal,”
and “my procedure . . . included a thorough discussion about how to get money other than do
this”) with ECF No. 246-34 at 62 (“[W]hen these came to me, all the negotiations had already
taken place with the company” and “I don’t recall speaking about alternatives.”). Nor, as
explained supra, does the alleged common deficiencies in the lawyers’ representations–allowing
sellers to sign affidavits, not appearing at the court proceeding, and not sabotaging their client’s
objectives–render the deficiency of advice capable of common proof. Therefore, whether
receiving a high discount rate was proximately caused by the RICO violation depends on
whether the defendants’ scheme in fact impacted the advice given, rather than merely created a
risk of doing so.
Additionally, the wishes of each seller are relevant to whether the alleged RICO violation
proximately caused the rate sellers received. As explained, the best interest determination under
the Virginia Act involves more than a seller getting the best discount rate possible for his

annuity. See Va. Code § 59.1-476. An annuity seller’s goals for his transaction similarly can be
more complex than receiving the best deal possible. If advice to shop one’s deal or to negotiate
with the Purchaser Defendants was given and the seller ignored that advice and decided to
proceed with his initial offer from the Purchaser Defendants, then the fact he received a rate
worse than prime + 6 percent was not an outcome proximately caused by Defendants’ alleged
efforts to skirt the requirements of the Virginia Act. In other words, Dockery’s theory assumes
that each seller’s primary goal was to receive the best rate possible from their annuity purchaser.
But irrespective any conflicts allegedly created by the scheme, an individual may have been
“injured”–i.,e, received a rate worse than the prime rate plus six percent–because he had a

different priority for his transaction like convenience, speed, or working with a known company.
For these reasons, whether receiving a rate worse than the prime rate + 6 percent was
proximately caused by Defendants’ RICO violation would require individual inquiries into the
discussions between estoppel lawyers and their clients, the clients’ goals for their transaction,
and, relatedly, the clients’ best interests. Without such inquiries, a seller would not be able to
prove proximate cause, which requires that an injury “must not be purely contingent on another
event or action.” St. Luke’s, 967 F.3d at 301. Therefore, Dockery has failed to show by the
preponderance of the evidence that receiving less than prime plus 6 percent is an injury
proximately caused by Defendants’ RICO violation.9
Attorney’s Fees. Seeking another method of proving class-wide injury, Dockery argues
that each class member was injured, and has quantifiable damages, by being required to pay
attorney’s fees for the “pleasure” of having an estoppel letter written by a non-independent

attorney. Pl.’s Br. at 32. The Purchaser Defendants argue that this alleged injury does not
satisfy RICO standing because the fees were not caused by the alleged predicate acts and
because sellers would have incurred the attorney’s fees regardless of whether they received
quality or the allegedly substandard advice. Purchaser Br. at 32-33.
Defendants’ arguments miss the mark here. Plaintiff’s theory of the case is that the
requirement to seek a lawyer plus the structure that made the lawyer’s advice not independent
together exploited SSA beneficiaries by inducing them to transfer payment streams on terms that
would not otherwise have been accepted or approved. While the Court has determined that
requiring a lawyer was permissible and that no misrepresentation was made in this respect, the

requirement of hiring a lawyer is a necessary element of the scheme Dockery alleges. And as
both parties recognize, once Wentworth stopped requiring individuals to hire lawyers, sellers
typically waived their right to independent counsel. See Pl.’s Br. at 39. Therefore, by the
preponderance of the evidence, the attorney fees charged here suffice as tangible injury
proximately caused by the RICO violation. See In re Ins. Brokerage., 579 F.3d at 269-70.

9 For this reason, the Court does not find it necessary to resolve the dispute between the experts
as to whether the prime rate + 6 percent is the “appropriate market rate.” See Amgen, 568 U.S. at
466 (“Merits questions may be considered to the extent – and only to the extent – that they are
relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).
The Purchaser Defendants’ caselaw does not support their argument that the attorney’s
fees are an incidental injury separate from the RICO violation. In The Knit With v. Knitting
Fever, plaintiffs attempted to show RICO injury through, in part, attorney’s fees and the costs of
lost profits. See The Knit With v. Knitting Fever, No. 08-4221, 2012 WL 2938992, at *10 (E.D.
Pa., July 19, 2012), aff’d 625 Fed. App’x 27 (3d Cir. 2015). There, the alleged injuries

(attorney’s fees and other expenses incurred by discovering and mitigating the RICO scheme)
were incidental to the RICO scheme, or “at best, ‘indirect’ injury which plaintiff did not
automatically incur, but chose to incur, in mitigating the effect of Defendants’ conduct.” Id. at
*9 (citation omitted); see also Strates v. Amusements of Am., 379 F. Supp. 2d 817 (E.D.N.C.
2005) (fees incurred in preparing disputed bids that would have been incurred regardless of the
alleged racketeering activity). Here, while the attorney’s fees charged were not themselves
illegal or the purpose of the scheme, they were charged in furtherance of the scheme to deprive
victims of independent advice. Therefore, they are not merely “indirect” injuries that sellers
chose to incur or injuries that they would necessarily have incurred regardless of the scheme.

Although the thrust of Dockery’s claim is that sellers were exploited to receive terms
worse than they would have received with independent advice, which requires a multitude of
individual inquiries, the Court is nonetheless “satisfied that the plaintiff[] ha[s] presented a
plausible theory for proving a class-wide injury as a result of the racketeering activities of the
alleged enterprises at issue,” In re Ins. Brokerage Antitrust Litig., 579 F.3d at 269-70.
Therefore, predominance is not defeated by the RICO standing issue.
iv. Statute of Limitations
Defendants also argue that individual issues predominate in this case because whether
class members’ causes of action are time barred is not capable of common proof. Civil RICO
actions are subject to a four-year statute of limitations. See Forbes v. Eagleson, 228 F.3d 471,
483 (3d Cir. 2000). Because the class period extends from 2000 to some point in 2009, and the
instant complaint was not filed until 2017, the statute of limitations is a significant issue facing
the class’s claims. The questions the Court must confront at this stage are whether the statute of
limitations issue can be resolved by common proof and, if not, how that affects the

predominance requirement of Rule 23(b)(3).
Dockery and Heretick discuss the RICO discovery rule in their briefs, agreeing that a
RICO claim begins to “accrue[] when plaintiffs knew or should have known of their injury.”
Cetel Kirwan Fin. Grp., 460 F.3d 494, 507 (3d Cir. 2006). A claim accrues (1) “no later than
when the plaintiffs themselves discover their injuries” under the subjective component of the
test, Mathews v. Kidder Peabody & Co., 260 F.3d 239, 252 (3d Cir. 2001), or (2) when plaintiffs
should have known, which “depends on whether [and when] they had sufficient information of
possible wrongdoing to place them on ‘inquiry notice’ or to excite ‘storm warnings’ of culpable
activity,” Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d

396, 400 (3d Cir. 2006) (alterations in original).
The Court finds that the accrual of the RICO claims poses individual issues. When
individuals subjectively knew of their claims could only be determined by individual proof of
what that person knew when. Additionally, whether sellers had enough storm warnings of
culpable activity to be put on notice of their injury and who caused it, see Forbes, 228 F.3d 471,
will depend upon the circumstances surrounding each seller’s transaction and whether those
circumstances should have put them on notice. Each seller will be presumed to know the terms
of his or her purchase agreements, see Done v. Option One Mortg., No. 09-4770, 2011 WL
1260820, at *8 n.5 (E.D.N.Y. Mar. 30, 2011), and each seller should be aware that their
attorney’s fees were taken out of the proceeds they received from the transaction. Members of
the subclass would also be aware of how they received their lawyers.
But whether these activities amounted to “storm warnings” would depend on the sellers’
discussions with the estoppel lawyers. If–assuming that the Estoppel Lawyers had not disclosed
and sought waivers of any conflicts–the sellers received the type of advice a lawyer who was not

subject to a conflict of interest may give, then that seller may not have any reason to suspect that
their lawyer had a conflict of interest. See Va. R. Prof’l Conduct 1.7. In any event, Dockery,
who holds the burden at the class certification stage, has not put forth a proposal for how the
discovery rule issue could be determined on a class-wide basis.
If a statute of limitations has accrued, the running of the statute may nonetheless be
equitably tolled. Dockery argues that statutes of limitations are subject to equitable tolling if a
divided loyalty of an adviser impedes the investigation that would permit discovery of his claim.
Pl.’s Br. at 50. Whether or not Estoppel Lawyers had a divided loyalty that would toll the statute
is, in Dockery’s view, a common, class-wide question. The Purchaser Defendants argues that

Dockery cannot show that the elements of equitable tolling are satisfied with common proof.
Equitable tolling allows a plaintiff to sue after the time period for filing a complaint has
run if certain criteria are met. It may apply where “(1) [] the defendant has actively misled the
plaintiff respecting the plaintiff’s cause of action, (2) [] the plaintiff in some extraordinary way
has been prevented from asserting his or her rights, or (3) [] the plaintiff has timely asserted his
or her rights mistakenly in the wrong forum.” In re Cmty. Bank, 795 F.3d at 400. “In addition, a
litigant will not receive the benefit of tolling in any of these situations unless she exercised due
diligence in pursuing and preserving her claim.” D.J.S.-W. by Stewart v. United States, 962 F.3d
745, 750 (3d Cir. 2020).
Dockery argues that the divided loyalty of his Estoppel Lawyers prevented him from
asserting his rights, a claim which would fall within the second category. The Third Circuit has
recognized that this equitable tolling test “is the same test that the Supreme Court uses to assess
whether a petitioner may be entitled to equitable tolling in the habeas context.” D.J.S.-W. by
Stewart, 962 F.3d at 751 (citing Holland v. Florida, 560 U.S. 631 (2020)). In Holland v.

Florida, the Supreme Court explained that a habeas petitioner “is entitled to equitable tolling
only if he shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” 560 U.S. at 634.
Therefore, both extraordinary circumstances and diligence must be satisfied for putative class
members to be eligible for tolling in this case. Id. According to Dockery, Holland v. Florida
stands for the principle that a claim of divided loyalty will – as a bedrock, black law matter –
justify equitable tolling. Pl.’s Br. at 50. That being the case, Dockery asserts, whether or not
Estoppel Lawyers had a divided loyalty that would toll the statute is a common, class-wide issue.
But the Supreme Court has not held that “divided loyalty” per se tolls the statute of

limitations. In Holland v. Florida, the Court was reviewing a decision by the Eleventh Circuit
Court of Appeals, which had articulated a standard that “when a [habeas] petitioner seeks to
excuse a late filing on the basis of his attorney’s unprofessional conduct, that conduct, even if it
is . . . grossly negligent, cannot rise to the level of egregious attorney misconduct that would
warrant equitable tolling unless the petitioner offers proof of . . . divided loyalty . . . or so forth.”
Holland v. Florida, 560 U.S. at 634 (citation omitted) (internal quotation marks omitted). The
Supreme Court held that “this standard is too rigid,” id., and that extraordinary circumstances
“are not limited to those that satisfy the test that the Court of Appeals used in this case,” id. at
652. Dockery takes this holding to mean that proof of divided loyalty per se tolls the statute,
even if it was too rigid to say less egregious activities do not as a matter of law. But in its
analysis, the Supreme Court emphasized that it had previously held that the “exercise of a court’s
equity powers . . . must be made on a case-by-case basis.” Id. at 649 (citation omitted)
(collecting cases); see also id. (noting “equity’s resistance to rigid rules”). Based on these
precepts, this Court does not read Holland to adopt a rigid rule that divided loyalty per se tolls

the statute. And in any event, regardless of the “extraordinary circumstance,” a plaintiff must
have diligently pursued his claim. Id. at 649.
Because the “extraordinary circumstance” prong requires a flexible approach, it cannot be
demonstrated by common proof in this case. The putative class’s RICO claim is premised in part
on the Estoppel Lawyers’ lack of independence, purportedly evidenced by estoppel letters, the
method in which the lawyers were paid, among others, and–in the case of the subclass–the
referral scheme. All of these factors were known or knowable to class members when they were
referred to attorneys, paid their attorneys, or saw their approved transfer petitions. So, it would
have to be something else in the context of the discussion between the Estoppel Lawyer and his

client that would constitute an “extraordinary circumstance” to toll the statute.
But even if “extraordinary circumstances” could be determined by common proof here,
the reasonable diligence element of equitable tolling cannot be. The Third Circuit recognizes
that “reasonable diligence is generally a fact-specific inquiry.” In re Cmty. Bank, 795 F.3d at
404. True, “when a wrongful scheme is perpetrated through the use of common documentation,”
. . . sometimes participation in the process that used the common documentation can alone be
sufficient to establish due diligence. Id. In other words, if due diligence can be proven by
something common, like participating in all aspects of a loan mortgage transaction, then the due
diligence element will not “cause the issue of equitable tolling to predominate over issues
common to the class.” Id.
Contrary to situations where signing loan paperwork can establish due diligence,
however, no such common proof is available here. Dockery does not offer any common proof as
to how the diligence element can be met or determined on a class-wide basis. But given the

general rule that reasonable diligence is fact-specific, the Court would need to examine whether
each seller diligently pursued his or her potential RICO claim based on his or her particular
interaction with his Estoppel Lawyer. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(“Due diligence does not require the maximum feasible diligence, but it does require diligence in
the circumstances.”). Accordingly, due diligence cannot be demonstrated with class-wide proof.
Dockery argues that even if individual questions exist regarding the statute of limitations
and equitable tolling, the caselaw is clear that such questions would not preclude the Court from
determining the predominance element of Rule 23(b)(3) is met. To support this argument,
Dockery relies in part on the principles articulated in In re Linerboard Antitrust Litig., 305 F.3d

145 (3d Cir. 2002). There, the Circuit held that plaintiffs’ attempt to toll the statute of limitations
based on a fraudulent concealment conspiracy did not raise individual issues that precluded class
certification because common issues of concealment predominated over individual ones related
to the statute of limitations. Id. at 161-62. Therefore, the predominance element of Rule
23(b)(3) was not defeated by the statute of limitations issue. Id. at 163. Moreover, the Court
reasoned, “any individualized facts of fraudulent concealment may be adjudicated in the same
fashion and at the same time as individual damages issues.” Id. The Court noted that “[m]any
courts faced with similar circumstances have certified class status with the expectation that
individual questions concerning fraudulent concealment can be resolved at a later damages
phase.” Id. (collecting cases).
The Court is not persuaded by Dockery’s argument in the context of this case. While the
Circuit held that individual issues relating to the statute of limitations did not defeat the
predominance element of Rule 23(b)(3), it did so where common issues also predominated in the

equitable tolling analysis, which is not the case here. To be sure, the Circuit also favorably cited
a principle that “we reject any per se rule that treats the presence of [individualized statute-of-
limitations] as an automatic disqualifier” and that “variations in the sources and application of
statutes of limitations will not automatically foreclose class certification” if “a sufficient
constellation of common issues binds class members together.” Linerboard, 305 F.3d at 162
(citing Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000). But the
Court also did not say that that individual issues regarding statutes of limitations could never
foreclose class certification. And here, where individual issues predominate in the discovery rule
and equitable tolling analysis and where the claims of every single class member may need to be

equitably tolled, individual inquiries into the relationship between particular estoppel lawyers
and their clients predominate. Thus, the Court concludes that individual inquires as to the statute
of limitations would predominate over any common issues facing the class as a whole.
v. The Predominance Element
In sum, the Court recognizes that the mere existence of individual issues do not defeat the
predominance element. See, e.g., In re Prudential, 148 F.3d at 314. However, the numerous
individual inquiries that proving class members’ RICO claims would require–including into
interactions between lawyers and clients, with their attendant privilege issues–for both liability
and timeliness issues, individual issues necessarily predominate over any common to the class.
Therefore, for this reason alone, class certification is not warranted.
C. Superiority

Rule 23(b)(3) also requires that a class action be superior to other available means of
adjudicating the claims of the class. Fed. R. Civ. P. 23(b)(3). The factors relevant to this
analysis include: (a) the class members’ interest 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.
Dockery claims that a class action is superior because it is the only feasible way of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401750. Public record. Not legal advice.