# Opposition Brief — Laliberte v. Pacific Pacific Mercantile Bank (No. 07-160)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

No. 07-160

IN THE

Supreme Court of the United States

JAMES LALIBERTE, et al., for themselves individually,
and as representatives of all similarly situated persons,

Petitioners,
v.

PACIFIC MERCANTILE BANK,
Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
Court OF APPEAL OF THE STATE OF CALIFORNIA,
FourtH APPELLATE District, Division THREE

BRIEF IN OPPOSITION

ROBERT BEALL

Counsel of Record
KARIN DoUGAN VOGEL
SHEPPARD, MULLIN, RICHTER

& Hampton LLP

650 Town Center Drive

Fourth Floor

Costa Mesa, CA 92626-1925

(714) 513-5100

Counsel for Respondent

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COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

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II.

i

QUESTIONS PRESENTED

Whether the Court should grant review of the opinion
of the California Court of Appeal, Fourth Appellate
District, which affirms the trial court’s decision that
rescission class actions are not maintainable under the
Truth in Lending Act, 15 U.S.C. § 1601, et seg., where
the court of appeal’s opinion does not conflict with any
decision of a state court of last resort or of a United States
court of appeals, and the opinion does not implicate an
important federal question that needs to be settled by
this Court.

Whether the Court should grant review of the opinion
of the California Court of Appeal, which is consistent
with opinions of the First Circuit Court of Appeals and
the Fifth Circuit Court of Appeals, both of which have
found that under the Truth In Lending Act, 15 U.S.C.
§ 1601, ef seq., rescission is a personal remedy and not
subject to class action treatment.

ii

CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE 29.6

Respondent Pacific Mercantile Bank has the following
parent corporation: Pacific Mercantile Bancorp.

Pacific Mercantile Bancorp is the only publicly held
company that owns 10% or more of Pacific Mercantile Bank’s
stock.

eax

iii

TABLE OF CONTENTS

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Corporate Disclosure Statement Pursuant to Supreme
etary erp De

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Se re OD nk wccuseseteune
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Reasons for Denying the Petition ...............
I. A Circuit Split Does Not Exist On The Issue
Of Whether Rescission Is Available On A
Class-Wide Basis In TILA Claims ........

ll. The Circuit Courts Of Appeals And The
California Court Of Appeal Have Correctly
Construed TILA To Preclude Rescission On

Pe: CE IE aS ats bine bs vs coke cs

A. Congressional Intent, As Indicated From
b) 4,6 lg SB © eee

B. Congressional Intent As Apparent From
Legisimtive HISROSY. 2.0 ccc cece sccess

iv

Contents
Page
III. Class-Wide Rescission Under TILA Would
Abrogate The Policies Underlying TILA ... 10

(Run te PS oS OB SS oR AE ei ee 12

TABLE OF CITED AUTHORITIES

Page

Cases:
Andrews v. Chevy Chase Bank, FSB, 240 F.R.D. 612

(E.D.Wis. 2007), appeal docketed, No. 07-1326

ee GS OAR es 3 pera rear rp erereras 4
Belini v. Wash. Mut. Bank,

Ee FCA Gs I 60-5 0455 wh wee beaen 8
Cleveland v. United States,

329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12 (1946) ... 9
Gibbons v. Interbank Funding Group,

208 F.R.D. 278 (N.D.Cal. 2002) ......... ae Fe eae
In re Ameriquest Mortg. Co. Mortg. Lending

Practices Litigation, 2007 WL 1202544 (N.D.III.

NR he eat eh ee al a moe os te 4
James v. Home Constr. Co.,

Gee ae Pat Lees BORO) cece ect hesenss 3, 5, 10
Jefferson v. Security Pac. Fin. Servs.,

Ek Bye ey Bk ae 8) nr 3, FH
Johnson v. Transportation Agency,

480 U.S. 616, 107 S.Ct. 1442,

ee EE ie inns end oaaveeeies 9

Johnson v. West Suburban Bank,
Dae Oe SOO, BE bb iis ov iS beden’s &

vi

Cited Authorities

Page

Latham v. Residential Loan Ctrs. of Am., Inc.,

2004 U.S. Dist. LEXIS 7993, 2004 WL 1093315

(N.D.IIl., May 6, 2004, No. 03 C 7094) ........ 4
Mayo v. Sears, Roebuck & Co.,

148 F.R.D. 576 (S.D.Ohio 1993) ............. 3
MclIntosh v. Irwin Union Bank & Trust Co.,

Bee Peden 20 Cae ONO BOOS) 6 vse ce cereee re 4
McKenna vy. First Horizon Home Loan Corp.,

2005 U.S. Dist. LEXIS 41491 (D.Mass., Nov. 10,

2005, Civ.A. No. 04-10370-RCL) ............ 5
McKenna v. First Horizon Home Loan Corp.,

475 F.3d 418 (1st Cir. 2007) ........... 3, 4, 7, 8, 10
Murry v. America’s Mortg. Banc, Inc.,

2005 U.S. Dist. LEXIS 11751, 2005 WL 1323364

(N.D.IIl. May 5, 2005, No. 03 C 5811) ........ 3
Nelson v. United Credit Plan, Inc.,

pee BB Ok OTe | a 9
Palmer v. Wilson,

SOe F.26 BGO Com Cit. 1974) oi ce cc sc cccess 1]

Rodash v. AIB Mortgage Co.,
0G OO PEGE CPI, BORE) occ cee iesecsses 7

vii

Cited Authorities
Page

Rodrigues v. Members Mortg. Co..,

226 F.R.D. 147 (D.Mass. 2005) .............. 2
United States v. Green,

SOT E56 S34 ist Cit. 00S) oc ccc ccecsceses 6
Williams v. Empire Funding Corp.,

183 F.R.D. 428 (E.D.Pa. 1998) ......0..000.. 4
Yamamoto v. Bank of New York,

Ra ee Se CO Es BUD ce vidbocewaveri 1]
Statutes:
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Cited Authorities
Page
Pub.L. 93-495, Title IV, § 407, 88 Stat. 1500,

OR BE, TRO: vi vikwe tec 0s 5b oep Leven r ie eek 8
Pub.L. 94-240, 90 Stat. 257, March 23,1976 ..... 8
Truth in Lending Class Action Relief Act of 1995,

Pub.L. No. 104-12, § 2, 109 Stat. 161, 161-162

inlaw eile tle Raw Ol Daa ene aan 7
Truth in Lending Act Amendments of 1995,

Pub.L. No. 104-29, § 3, 109 Stat. 271, 272-73 .. 7
Other Authorities:

REE SI, TR EOI. 6.066 cs wie sonesennnenes 7, 10
C5t CO FR ENON eb ec cessvecvaneuaveuns 7, 10
CGT CGE, TOE. BIASOE ove cevescccvatesesean 10

H.R. Conf. Rep. No. 93-1429 (1974) ............ 8

l

STATEMENT OF CASE

The plaintiffs, James Laliberte and Dennis and Jann
O’Connor (together, Laliberte and the O’Connors, or
Petitioners), all applied for closed-end refinance loans with
Pacific Mercantile Bank (PMS) in April 2002, secured by
their principal residences. Joint Appendix filed with the
California Court of Appeal (J.App.) 290-291. In connection
with the loans, PMB provided Laliberte and the O’Connors
with disclosure statements as required by the Truth in Lending
Act, 15 U.S.C. § 1601, et seg. (TILA). See J.App. 290-291.
Both Laliberte and the O’Connors claim their TILA
disclosure statements are incorrect because they do not
include a $450 closing fee as part of the “Finance Charge.”
See J.App. 292. Accordingly, both Laliberte and the
O’Connors informed PMB in writing that they were invoking
their right to rescind their loans. J.App. 295, 4 39; 296, 4 45.
PMB refused their requests. /d.

Laliberte and the O’Connors filed their Complaint
alleging individual causes of action against PMB on May
22, 2003. J.App. 1. They filed a first amended complaint
thereafter, adding class action allegations and seeking both
statutory damages and rescission for the alleged class. J.App.
15, 28-30. The trial court sustained PMB’s demurrer to the
first amended complaint with leave to amend, ruling the
motion to strike was therefore moot. J.App. 127-131.

Laliberte and the O’Connors filed a second amended
complaint, and PMB again demurred and filed a motion to
strike. See J.App. 132, 154, 179. The trial court again
sustained PMB’s demurrer and granted PMB’s motion to
strike, with leave to amend in part but without leave to amend
“to seek either rescission or a declaration of entitlement to
rescission on the class claims.” J.App. 278, 281. Persuaded

2

by the federal district court’s rationale in Gibbons v. Interbank
Funding Group, 208 F.R.D. 278, 285-286 (N.D.Cal. 2002),
the trial court concluded that “neither form of relief is
appropriate in a class action.” J.App. 281.

Laliberte and the O’Connors filed a third amended
complaint on May 5, 2005. J.App. 283. This time the trial
court sustained PMB’s demurrer to the class claims in the
third amended complaint without leave to amend, and
Laliberte and the O’Connors appealed from the court’s order.
J.App. 385-386, 388. The California Court of Appeal, Fourth
District, Division 3, affirmed the trial court’s ruling denying
the plaintiffs leave to amend to seek either rescission or a
declaration of entitlement to rescission on the class claims.
Laliberte v. Pacific Mercantile Bank, 147 Cal. App. 4th 1
(2007) (Laliberte). The California Supreme Court denied
review.

SUMMARY OF ARGUMENT

No compelling reason exists for the Court to grant review
of the Petition filed by Laliberte and the O’Connors.
The Petition is taken from a California intermediate appellate
court decision, the California Supreme Court denied review,
two United States courts of appeals have entered decisions
that are consistent with the California Court of Appeal’s
decision, and no United States court of appeals has decided
a case to the contrary.

Further, nothing is to be gained from the Petition.
The United States courts of appeals, and the California court
of appeal in this case, have all correctly interpreted the TILA
‘to preclude class-wide rescission relief. The statute on its
face, as well as in its legislative history, supports a conclusion

3

Congress never intended for class-wide rescission relief to
be available for TILA claims. The policy goals of the TILA,
of protecting consumer rights while at the same time
sustaining the viability of the mortgage lending industry, are
advanced by this interpretation of the TILA.

The Petition should be denied.
REASONS FOR DENYING THE PETITION

I. A Circuit Split Does Not Exist On The Issue Of
Whether Rescission Is Available On A Class-Wide
Basis In TILA Claims

To date, two federal circuit courts of appeals have
addressed the issue of whether class-wide rescission is
available for TILA claims, and both of those circuit courts
ruled consistently. See McKenna v. First Horizon Home Loan
Corp., 475 F.3d 418, 422-28 (ist Cir. 2007) (McKenna);
James v. Home Constr. Co., 621 F.2d 727, 730 (Sth Cir. 1980).
Like in the California court of appeal’s decision here, those
circuit court opinions found rescission under TILA is a
personal remedy and not susceptible to class-wide
application. (/d.) Pour district court decisions have also found
class-wide rescission is not available for TILA claims. See
Gibbons, 208 F.R.D. at 285-86; Murry v. America’s Mortg.
Banc, Inc., 2005 U.S. Dist. LEXIS 11751, 2005 WL 1323364
*10-11 (N.D.II]. May 5, 2005, No. 03 C 5811); Jefferson v.
Security Pac. Fin. Servs., 161 F.R.D. 63, 68-69 (N.D.IIL.
1995); and Mayo v. Sears, Roebuck & Co., 148 F.R.D. 576,
583 (S.D.Ohio 1993).

In contrast, Petitioners cite to six district court decisions
“allowing TILA rescission claims to be pursued, in some

4

fashion, as a class action.” Petition at 10-11, citing to In re
Ameriquest Mortg. Co. Mortg. Lending Practices Litigation,
2007 WL 1202544, *3 (N.D.III. 2007); Andrews v. Chevy
Chase Bank, FSB, 240 F.R.D. 612 (E.D.Wis. 2007), appeal
docketed, No. 07-1326 (7th Cir. Feb. 14, 2007); Rodrigues
v. Members Mortg. Co., 226 F.R.D. 147, 153 (D.Mass. 2005);
Latham vy. Residential Loan Ctrs. of Am., Inc., 2004 U.S.
Dist. LEXIS 7993, 2004 WL 1093315 (N.D.III., May 6, 2004,
No. 03 C 7094); McIntosh v. Irwin Union Bank & Trust Co.,
215 F.R.D. 26, 33 (D. Mass. 2003); and Williams v. Empire |
Funding Corp., 183 F.R.D. 428, 435-36 (E.D.Pa. 1998).

These six district court decisions do not create a “split”
in the law, requiring Supreme Court review. Two of these
six are Massachusetts district court decisions that preceded
the First Circuit’s recent decision finding class-wide relief
is not available for TILA rescission claims. See McKenna,
475 F.3d at 418 (reversing a Massachusetts district court
decision). The Massachusetts district court cases have no life
after McKenna. Two more of the six were decided by a single
district court in Northern I[llinois. Finally, Andrews is slated
for decision by the Seventh Circuit later this year. See Petition
at 10, fn. 2. At best, three different district courts throughout
the country disagree with the decisions of two circuit courts
of appeals, four district courts, and the California appellate
court’s decision here — certainly not a “conflict” of sufficient
magnitude to warrant Supreme Court intervention. '

' Ifaconflict in the circuits is created when the Seventh Circuit
decides the Andrews appeal, the parties in that case will have the
opportunity to petition this Court for review. Until a conflict between
the circuits exists, however, review is not warranted.

5

Il. The Circuit Courts Of Appeals And The California
Court Of Appeal Have Correctly Construed TILA To
Preclude Rescission On A Class-Wide Basis

The Fifth Circuit was the first circuit court to hold that
rescission class actions are not maintainable under the TILA.
See James, 621 F.2d at 730-31. The court’s opinion in James
focused almost exclusively on the individual nature of the
rescission remedy under TILA. A number of district court
decisions followed the Fifth Circuit’s lead in James, including
a federal district court decision from Northern California.
See Gibbons, 208 F.R.D. at 280-86. The court of appeal’s
decision here relied on this federal precedent, but also
disagreed with a Massachusetts district court case that was
argued by Laliberte and the O’Connors, where the district
court allowed a class action rescission claim under TILA.
See Laliberte, 147 Cal. App. 4th at 8-11, disagreeing with
McKenna v. First Horizon Home Loan Corp., 2005 U.S. Dist.
LEXIS 41491 (D.Mass., Nov. 10, 2005, Civ.A. No. 04-10370-
RCL). Four days after the court of appeal issued its decision
in this case, the First Circuit Court of Appeals reversed the
district court decision in McKenna. Expanding on the analysis
from James, the First Circuit rested its holding primarily on
its conclusion “that Congress did not intend rescission suits
to receive class-action treatment.” McKenna, 475 F.3d at
423-27.

A. Congressional Intent, As Indicated From The
Face Of The TILA

The main indication of congressional intent is found on
the face of the TILA. The TILA provides for two remedies
for violations of its provisions: damages (15 U.S.C.
§ 1640(a)(2)(B)) and rescission (id. § 1635). Section 1640,

6

dealing with damages, specifically addresses class actions.
Id. § 1640(a)(2)(b). Indeed, § 1640 is entitled “Civil liability”
and the relevant subsection thereto is entitled “Individual or
class action for damages; amount of award; factors
determining amount of award.” /d. § 1640(a). Substantively,
§ 1640 provides separate limits on the damages available in
individual actions ($2,000) and in class actions (the lesser
of $500,000 or 1 per centum of the creditor’s net worth).
Id. § 1640(a)(2)(A), (B).

Section 1635, dealing with rescission, makes no
comparable mention of the class action mechanism.
See id. § 1635. Section 1635’s failure to make any mention
of class actions could mean one of two things: either Congress
intended rescission to be unavailable as a class remedy for
TILA claims or it intended rescission to be available without
restraint in a class action. It is illogical that Congress would
limit the recovery of damages available on a class basis, while
at the same time allowing unlimited rescission claims.
A creditor’s exposure in rescission cases easily could be
significantly greater than the cap on damages in class action
cases. This distinction between the two remedy sections of
the TILA strongly supports a conclusion that Congress did
not intend for the rescission remedy to apply on a class-wide
basis. See United States v. Green, 407 F.3d 434, 443 (1st Cir.
2005) (ordinarily, inclusion of specific provision in one part
of statute and exclusion of similar provision in another part
should be treated as deliberate).

B. Congressional Intent As Apparent From
Legislative History

Congressional intent is also apparent from the legislative
history of the TILA. The damages section of the TILA

7

(15 U.S.C. § 1640) was amended twice in 1995, as a response
to the Eleventh Circuit’s decision in Rodash v. AIB Mortgage
Co., 16 F.3d 1142 (11thCir. 1994). In Rodash, a case filed
by an individual debtor, the Eleventh Circuit held that a
creditor’s violation of TILA by selecting an incorrect form
for disclosure of rescission rights justified rescission of a
mortgage loan. /d. at 1147. Responding to Rodash, Congress
first enacted a moratorium on class actions brought based
on relatively minor technical infractions under TILA.
See Truth in Lending Class Action Relief Act of 1995, Pub.L.
No. 104-12, § 2, 109 Stat. 161, 161-162 (amending
15 U.S.C. § 1640 by adding subsection (i)). During the
moratorium, Congress amended the TILA to provide for
increased tolerance of honest mistakes in certain disclosure
requirements. See Truth in Lending Act Amendments of 1995,
Pub.L. No. 104-29, § 3, 109 Stat. 271, 272-73.”

Thus, in reacting to an abuse in the application of the
TILA that was becoming readily apparent, Congress enacted
legislation directed at the core of the issue by narrowing the
scope of various disclosure requirements to avoid liability
for technical infractions. By not correcting the problem by
expressly exempting class action rescission claims, Congress
did not impliedly create a class right of action for rescission
claims. As stated by the court in McKenna, “[w]e would not

2 In the Congressional Record, the chairman of the Banking
Committee explained the legislation was motivated by a concern
that the banking industry would be overrun with liability due to
wholesale rescissions of mortgage loans based on relatively minor
violations of the TILA. See 141 Cong. Rec. $14566, 14567 (Statement
of Sen D’Amato, expressing an awareness that the “threat of
wholesale rescissions presents a real danger to our modern system
of home financing: potential liability that could reach into the
billions.”).

8

expect Congress expressly to exempt from class-action rules
a process for which it never fully delineated an individual
right of action.” McKenna, 475 F.3d at 425-26. On the
contrary, the TILA’s rescission provision presumptively
anticipates individual exercise of the rescission remedy, “with
the creditor and debtor working out the logistics of a given
rescission.” Jd. at 421; see also 15 U.S.C. § 1635.°

Earlier, the legislative history of the TILA shows
Congress amended 15 U.S.C. § 1640 in 1974 to set the cap
on the damages recoverable in a class action under the TILA.
Initially, Congress set the cap at the lesser of $100,000 or 1
per centum of the net worth of the creditor (Pub.L. 93-495,
Title IV, § 407, 88 Stat. 1500, Oct. 28, 1974), but it raised
the cap two years later to the lesser of $500,000 or 1 per
centum of the creditor’s net worth (Pub.L. 94-240, 90 Stat.
257, March 23, 1976). See 15 U.S.C. § 1640(a)(2)(B).
The purpose of the cap on damages was “to protect small
business firms from catastrophic judgments.” H.R. Conf.
Rep. No. 93-1429 (1974), quoted in Johnson v. West
Suburban Bank, 225 F.3d 366, 372 (3d Cir. 2000).
Significantly, at neither time (nor at any time thereafter) did
Congress make a comparable amendment to the rescission
provision in the TILA.

Petitioners make an overstated argument that an
inference of congressional intent from congressional inaction
misapplies the rules of statutory construction. Petition at
12-18. It is true that the ability to infer congressional intent
from congressional inaction is an area open to dispute.

> See also Belini v. Wash. Mut. Bank, 412 F.3d 17, 25 (Ist Cir.
2005) (the TILA’s rescission provision “is written with the goal of
making the rescission process a private one, worked out between
creditor and debtor without the intervention of the courts.”).

9

Compare Cleveland v. United States, 329 U.S. 14, 17-18, 67
S.Ct. 13, 22-23, 91 L.Ed. 12 (1946) (Rutledge, J., concurring,
finding congressional inaction unpersuasive) with Johnson
v. Transportation Agency, 480 U.S. 616, 629 fn. 7, 671, 107
S.Ct. 1442, 1450, 1472-73, 94 L.Ed. 2d 615 (1987) (majority
opinion applying rule of inaction to infer congressional intent;
Scalia, J., dissent, opining “vindication by congressional
inaction is a canard”). However, this is not the case for the
Supreme Court to sort out the viability of that rule.

Suffice it to say that if the rule is applied, it favors a
finding Congress never intended for rescission claims to
proceed as class action lawsuits. As the court of appeal in
this case logically noted: “We .. . find it difficult to believe
that Congress would carefully balance the deterrent effect of
class actions under TILA against the potential harm to
businesses in the context of statutory damages, and yet allow
class action rescission to proceed without any safeguard for
the affected business.” Laliberte, 147 Cal. App. 4th at 11.
Answering further the question of why Congress might cap
recovery on class actions under 15 U.S.C. § 1640 and not do
so under § 1630, the court found the answer “in the status of
case law in 1974 and 1976, when the cap was enacted and
increased. During this time period, numerous cases
recognized that class actions seeking damages under § 1640
were appropriate, but class actions seeking rescission were
virtually nonexistent.” Laliberte, 147 Cal. App. 4th at 11.'

Finally, this analysis of Congressional intent, apparent
from both the face of the statute as well as its legislative

* The court of appeal cited to Nelson v. United Credit Plan,
Inc., 77 F.R.D. 54, 58, (E.D.La. 1978) wherein the court noted that
at that time “there is not a single precedent in which class certification
was broached, much less granted or denied, in a case where rescission
pursuant to 15 U.S.C. § 1635 was the relief prayed for.”

10

history, is consistent with the practicalities of the litigation
process. In the words of the court in McKenna, the “highly
individualized character of [the rescission] process and the
range of variations that may occur render rescission largely
incompatible with a sensible deployment of the class-action
mechanism.” McKenna, 475 F.3d at 424-25.

III. Class-Wide Rescission Under TILA Would Abrogate
The Policies Underlying TILA

No doubt, Congress recognizes the delicate balance that
must be maintained between applying the TILA sufficiently
to provide vital consumer protection, and applying the TILA
too stringently, resulting in financial disaster for the mortgage
industry. See 141 Cong. Rec. $14566-14568. In protecting
this balance, courts have concluded Congress intended
rescission under the TILA to be a “purely personal remedy”
~— a Status inconsistent with class action recovery. See, e.g.,
James, supra, 621 F.2d at 731. The rescission steps laid out
in the statute are steps that are personal, to be taken by an
individual obligor and the creditor, and not steps that can be
taken by a group of obligors, in the aggregate.’ See 15 U.S.C.
§ 1635; see also James, 621 F.2d at 731. Further, unlike
damages claims, the TILA does not subject rescission claims
to an aggregate statutory cap, so that rescission class actions,
if allowed, could easily render a creditor insolvent.
See McKenna, 475 F.3d at 423; Gibbons, 208 F.R.D. at 285-
86. On the other hand, the availability of substantial monetary
recoveries and attorneys’ fees in individual r°scission cases

5 As the court of appeal stated in this case, “[uJnlike class
actions seeking damages or an injunction, rescission under TILA
creates obligations between both the lender and the borrower.”
Laliberte, 147 Cal. App. 4th at 10.

11

makes the availability of the class-action vehicle in the TILA
context unnecessary. See, e.g., Jefferson, 161 F.R.D. at
68-70.

Petitioners argue that the courts’ and Congress’s fears
about the catastrophic effect class action rescission claims
could have on the home mortgage industry are overstated.
Petition at 18-19. In particular, Petitioners claim that upon
rescission, lenders will not lose their security interest prior
to the restoration of their principal because a court may
require that the borrower restore the principal to the lender
as a prerequisite to rescission. /d. (relying on Palmer v.
Wilson, 502 F.2d 860, 862 (9th Cir. 1974) and Yamamoto v.
Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003).)
The law on the equitable remedies available to a court in
granting rescission under TILA, as developing in the Ninth
Circuit, is not so broad as Petitioners assert, and is consistent
with limiting TILA claims for rescission to individual actions.
The court in Palmer noted that “[t]he propriety of such a
conditional decree of rescission, of course, will depend on
the equities present in a particular case ...” Palmer, 502
F.2d at 862; see also Yamamoto, 329 F.3d at 1173
(emphasizing that the inquiry as to the appropriate equitable
relief is a factual inquiry that must be resolved on a “case-
by-case” basis). The case-by-case, factual nature of whether
a conditional decree of rescission is appropriate, is not
consistent with the basic premise of a class action, that it is
available only where common issues of fact predominate.

12

CONCLUSION

Petitioners have not established any compelling reasons
for this Court to grant their Petition. Therefore, Respondent
respectfully requests that the Petition be denied.

Respectfully submitted,

RoBert BEALL

Counsel of Record

KARIN DOUGAN VOGEL

SHEPPARD, MULLIN, RICHTER & Hampton LLP
650 Town Center Drive, 4" Floor

Costa Mesa, California 92626-1925

(714) 513-5100

Counsel for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1286%3A2. Public record. Not legal advice.