This is my first post on developments in title insurance class actions.  One hot-button issue in this area is whether insureds are properly receiving discounts on title insurance policies when mortgages are refinanced.  In one of these cases, the U.S. District Court for the Western District of Washington recently denied class certification, although without prejudice to filing a new motion for certification.

In Boucher v. First American Title Insurance Company, the plaintiffs’ theory is that First American was purportedly supposed to provide a 50% discount from its filed rates where a mortgage was being refinanced, and failed to do so in some cases.  The court wrote a fairly lengthy opinion that essentially concludes that plaintiffs failed to take enough discovery to be able to accurately estimate the size of their proposed class or demonstrate a means by which the class could be identified.  The court, however, gives the plaintiffs another chance to take more discovery and then file another motion for class certification.

What puzzles me here is why the court was so generous to plaintiffs’ counsel.  By the time a motion for class certification has been fully briefed and argued (and in some cases an evidentiary hearing conduced), it should be rare that the plaintiffs are allowed another bite at the apple.  Discovery and briefing in these cases requires substantial efforts by both parties and the court, and to allow a “do-over” where the plaintiffs, after taking discovery, failed to even demonstrate a method to identify the class or the size of the class seems somewhat inequitable.  The opinion says that the parties will not have to re-brief issues that were previously briefed, but substantial new issues likely will be raised after further discovery.

There may be no way for an insurer to avoid this result where the court is inclined to be generous to plaintiffs’ counsel, but one way to try to avoid this is to encourage the court to set a schedule that provides for a clearly-defined cutoff for class-related discovery before a motion for class certification is filed.