IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`JAMES WEAVER GAREY, et al.,
`on behalf of themselves and others similarly situated,
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`Plaintiffs,
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`JAMES S. FARRIN, P.C., et al.,
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`Defendants.
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`1:16CV542
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`MEMORANDUM OPINION AND ORDER
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`LORETTA C. BIGGS, District Judge.
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`Presently before the Court are Plaintiffs’ motion to certify a class pursuant to Federal
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`Rule of Civil Procedure 23, (ECF Nos. 184; 220 at 7–16), and Defendants’ related motions to
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`strike certain declarations filed in support of class certification, (ECF Nos. 202; 204). For the
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`following reasons, all three motions will be denied.
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`I.
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`BACKGROUND
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`In this action, Plaintiffs allege that Defendants violated the Driver’s Privacy Protection
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`Act (“DPPA”), 18 U.S.C. § 2721 et seq., by obtaining their names and addresses from
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`automobile accident reports and using that information for marketing purposes.1 (ECF No.
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`180.) In North Carolina, law enforcement officers are required to investigate automobile
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`                                                            
`1 The DPPA makes it “unlawful for any person knowingly to obtain or disclose personal information,
`from a motor vehicle record,” for any use other than the fourteen “[p]ermissible uses” enumerated in
`the statute. See 18 U.S.C. §§ 2721(b); 2722(a). Further, a person “who knowingly obtains, discloses
`or uses personal information, from a motor vehicle record, for [an improper purpose] shall be liable
`to the individual to whom the information pertains.” Id. § 2724(a).
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`accidents that are reported to them. N.C. Gen. Stat. § 20-166.1(e). Within twenty-four hours,
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`an investigating officer must “make a written report of the accident” to be furnished to the
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`state’s Division of Motor Vehicles (the “Division”). See id. The Division makes a standard
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`crash report form—the DMV-349—available to law enforcement agencies for this purpose.
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`(See ECF No. 220-13 at 9–15.) Among other information, the form has fields for identifying
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`each driver involved in the accident, including spaces for name, address, date of birth, and
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`license number. (See id. at 14.) It is also important to note here that, next to the address field,
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`the form asks “Same Address on Driver’s License?” and provides checkboxes for officers to
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`indicate “Yes” or “No.” (See id.)
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`According to their complaint,2 each of the six named Plaintiffs were involved in car
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`accidents in 2016. (ECF No. 180 ¶¶ 42–47.) Either local police officers or North Carolina
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`State Highway Patrol troopers investigated each of the accidents and recorded their findings
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`on a DMV-349. (Id.; see also, e.g., ECF No. 206-8 at 2.) To complete the form’s driver-
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`identification fields, the investigating officers first asked each Plaintiff for his or her driver’s
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`license, before then either (a) copying all of the needed information onto a paper form by
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`hand, (b) entering all of the information manually into an electronic version of the form, or
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`(c) auto-populating the form, either by typing the license number (only) into a computer or by
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`scanning a barcode on the back of the license. (See ECF No. 180 ¶¶ 50–51.) In each instance,
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`the investigating officers also asked the Plaintiff whether the information on his or her license
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`was still correct, and when each Plaintiff answered in the affirmative, the officer checked the
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`                                                            
`2 The complaint referenced throughout this opinion is the operative Second Amended and
`Supplemental Complaint, (ECF No. 180).
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`2 
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`affiliated “Yes” box mentioned above. (Id. ¶ 52.) The DMV-349 forms were then filed with
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`the Division. (Id. ¶ 53.)
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`Not long after their accidents, Plaintiffs began receiving unsolicited marketing materials
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`from various North Carolina attorneys and law firms, including Defendants, who had obtained
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`their names and addresses from their respective DMV-349s.3 (See, e.g., ECF Nos. 32-1 through
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`32-32; 180 ¶¶ 54–114.) The central question forming the basis of this lawsuit is whether, as
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`Plaintiffs allege, Defendants’ conduct in gathering accident reports and using the information
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`contained therein to market legal services violates the DPPA.
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`Plaintiffs filed the instant motion for class certification on October 30, 2019.4 (ECF
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`No. 184.) The class definition proposed in the motion was sweeping in that it included
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`virtually every driver identified in a DMV-349 completed by local Raleigh, Greensboro, or
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`Charlotte law enforcement officers, or by State Highway Patrol troopers in Wake County,
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`between 2012 and 2016. (See id. at 1–9.) However, in light of objections raised by Defendants
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`in their response to the motion, Plaintiffs opted to refine the proposed class definition in their
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`reply brief.5 (See ECF No. 220 at 6.) Under the revised definition, the general class is first
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`restricted to those who meet the following criteria:
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`                                                            
`3 It appears that some Defendants collected information from Plaintiffs’ DMV-349s themselves,
`whereas others employed a third-party data aggregator to perform this task. (Compare, e.g., ECF No.
`220-1 at 24–25, with ECF No. 220-7 at 15–16.)
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` 4
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` “At an early practicable time after a person sues or is sued as a class representative, the court must
`determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A).
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` 5
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` Revising a proposed class definition in a reply brief is “procedurally appropriate, as the Court retains
`jurisdiction to modify the class until there is a decision on the merits.” See Jordan v. Commonwealth Fin.
`Sys., Inc., 237 F.R.D. 132, 136 n.3 (E.D. Pa. 2006) (citing Fed. R. Civ. P. 23(c)(1)(C)); Gulino v. Bd. of
`Educ. of City Sch. Dist. of City of New York, 201 F.R.D. 326, 330 n.3 (S.D.N.Y. 2001) (permitting revision
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`3 
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`1. A natural person[;]
`2. Who is identified as a driver on a DMV-349 accident report[;]
`3. Who is shown on said DMV-349 as:
`a. Holding a North Carolina Driver’s License; and
`b. Having the “Yes” box checked in response to “Same Address on
`Driver’s License?”; and
`4. Who is not among the following excluded persons:
`a. All counsel of record;
`b. All employees of the Court;
`c. All employees of White & Stradley, PLLC;
`d. All employees or principals of any Defendant; and
`e. All persons who are currently represented by any Defendant as
`of the date of certification;
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`(Id. at 7.) The definition then sorts potential class members into a set of ten subclasses (and
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`related sub-subclasses), so as to limit the class to only those individuals whose names and
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`addresses Defendants actually obtained from DMV-349 forms. For example,6 the “Crumley”
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`subclass is outlined as such:
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`The Crumley Class Spreadsheets are those spreadsheets obtained by
`Defendant Crumley Roberts from Digital Solutions of the Carolinas, a copy of
`each of which was in the possession of Defendant Crumley Roberts as of the
`date of its Rule 30(b)(6) deposition.
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`Crumley [Subclass] Definition:
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`1. Each person meeting the General Restrictions;
`2. Whose name appears on one or more of the Crumley Class
`Spreadsheets on the same line as an accident date;
`3. Whose name can be matched to a DMV-349 for an accident
`occurring on the date indicated on the line of the Class
`Spreadsheet where said person’s name appears;
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`                                                            
`to class definition via plaintiffs’ reply brief “in response to some of [the] objections found in
`defendants’ opposition briefs”).
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` 6
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` While the subclasses vary by Defendants, they are substantively similar enough that the Court need
`not list them all here. The full revised class definition, which consumes several pages, is available in
`its entirety in Plaintiffs’ reply brief. (See ECF No. 220 at 7–16.)
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`4 
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`4. Where said DMV-349 indicates that the accident was
`investigated by the Raleigh Police Department; and
`5. Whose accident occurred on or after May 27, 2012.
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`This Crumley Class applies only to Defendants Crumley Roberts and Chris
`Roberts.
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`(Id. at 13.) Having considered the parties’ briefs and the corresponding evidentiary record,7
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`the Court finds that the certification question is ripe for disposition.
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`II.
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`LEGAL STANDARD
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`Plaintiffs seeking class certification “must affirmatively demonstrate
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`[their]
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`compliance” with Federal Rule of Civil Procedure 23. Wal–Mart Stores, Inc. v. Dukes, 564 U.S.
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`338, 350 (2011). Rule 23(a) requires that a prospective class satisfy four prerequisites to ensure
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`that the class claims are fairly encompassed by those of the named plaintiffs. See Fed. R. Civ.
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`P. 23(a). These prerequisites are often referred to as numerosity, commonality, typicality, and
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`adequacy. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019). The Fourth
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`Circuit has also recognized that Rule 23 “contains an implicit threshold requirement” of
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`“ascertainability”—that the members of a proposed class be “readily identifiable” by way of
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`reference to objective criteria. See id. at 654–55. If these initial requirements are met, the
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`plaintiffs must then demonstrate that the proposed class fits within at least one of the three
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`types of classes outlined in Rule 23(b). Id. at 655.
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`                                                            
`7 “When deciding a motion for class certification, . . . an evidentiary hearing is typically held on the
`certification issue.” See Monroe v. City of Charlottesville, 579 F.3d 380, 384 (4th Cir. 2009). However,
`nothing in the Federal Rules requires such a hearing where, as here, Plaintiffs—who bear the burden
`of proving that certification is proper—have not requested one. See L.R. 23.1(b); 5 Moore’s Federal
`Practice – Civil § 23.82[2]. The Court therefore proceeds based on the declarations, affidavits,
`deposition excerpts, and other evidence formally submitted into the record.
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`5 
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`Although it is Plaintiffs’ burden to demonstrate compliance with Rule 23, this Court
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`“has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the
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`prerequisites have been satisfied.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014)
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`(quoting Dukes, 564 U.S. at 350–51). As Rule 23’s criteria are often “enmeshed in the factual
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`and legal issues comprising the plaintiff’s cause of action,” this analysis may entail some
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`consideration of the merits of the underlying claims. See Dukes, 564 U.S. at 351. However,
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`“[m]erits questions may be considered . . . only to the extent . . . that they are relevant to
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`determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc.
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`v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
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`III. ANALYSIS
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`The parties primarily dispute whether Plaintiffs’ claims present questions in common
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`with, and are typical of, the class; whether Plaintiffs and their counsel can adequately represent
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`the interests of the proposed class; and whether the class can be properly certified under either
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`Rule 23(b)(2) or Rule 23(b)(3). The Court will begin with the threshold 23(a) prerequisites.
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`Two of the prerequisites, numerosity and ascertainability, require little discussion. The
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`numerosity of the proposed class is beyond dispute, as Defendants have testified that they
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`acquired names and addresses from hundreds, if not thousands of DMV-349s per week over
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`the course of several years. (See ECF No. 185 at 23 (consolidating deposition testimony).)
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`Furthermore, despite their number, the proposed class members are readily ascertainable. The
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`parameters of the class are based on (a) spreadsheets and client information in Defendants’
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`possession and (b) DMV-349s likely still on file with the Division. With those datasets in
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`hand, it would most certainly be “administratively feasible . . . for the court to determine
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`6 
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`whether a particular individual is a [class] member.” See Krakauer, 925 F.3d at 658; Kingery v.
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`Quicken Loans, Inc., 300 F.R.D. 258, 264 (S.D.W. Va. 2014) (finding class ascertainable even
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`though “some effort to sift through [defendant’s] data warehouse” would be required). The
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`remaining prerequisites of commonality, typicality, and adequacy of representation require
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`greater discussion.
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`A. Commonality
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`Certification is only appropriate if “there are questions of law or fact common to the
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`class.” Fed. R. Civ. P. 23(a)(2). Because “any competently crafted class complaint literally
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`raises common questions”—Were the drivers involved in car accidents? Was a DMV-349
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`form created by an investigating officer in each instance? Did the Defendants obtain those
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`accident reports?—what matters most to commonality is “the capacity of a class-wide
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`proceeding to generate common answers apt to drive the resolution of the litigation.” See Dukes,
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`564 U.S. at 349–50. Further, although Rule 23(a)(2) speaks of “questions,” plural, “[a] single
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`common question will suffice,” so long as it is “of such a nature that its determination ‘will
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`resolve an issue that is central to the validity of each one of the claims in one stroke.’” EQT,
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`764 F.3d at 360 (citing Dukes, 564 U.S. at 350, 359).
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`The instant suit raises (at least) three questions which, on their faces, are both central
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`to any member’s claim—and thus have the potential to unite class members under a “common
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`contention,” see Dukes, 564 U.S. at 350—but not so inherently sweeping as to necessarily
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`encompass differences that may impede common adjudication: (1) whether the name and
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`address information in class members’ DMV-349s was derived from “motor vehicle records”
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`(as that term is understood in the DPPA context); (2) whether Defendants knowingly obtained
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`7 
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`that information; and, (3) if so, whether they did so for an impermissible purpose. Based on
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`the materials submitted, the latter two questions appear well-suited to common resolution—
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`an answer of “yes, they did” or “no, they did not” will apply equally to all class members and
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`“resolve an issue central to the validity” of each member’s DPPA claim. Thus, the Court finds
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`that their existence is sufficient to meet Rule 23(a)’s threshold commonality requirement.
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`The first question, however—whether each class member’s information was obtained
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`from a “motor vehicle record”—warrants further discussion; if not for commonality (which
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`has been met), then for the related requirements of typicality (under 23(a)(3)) and
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`predominance (under 23(b)(3)), as discussed below. See 1 Newberg on Class Actions §§ 3:25–
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`3:27 (5th Ed. 2020) (hereinafter “Newberg”) (noting overlap among these requirements). The
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`DPPA only imposes liability for personal information that has been obtained “from a motor
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`vehicle record.” See 18 U.S.C. § 2722(a). “The origin of the information is thus crucial to the
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`illegality of [Defendants’ conduct]—the statute is agnostic to the [use] of the very same
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`information acquired from a lawful source.” Dahlstrom v. Sun–Times Media, LLC, 777 F.3d 937,
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`949 (7th Cir. 2015). Put another way: the validity of any DPPA claim hinges not just on the
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`kind of information at issue, but the source of that information as well.
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`Plaintiffs have failed to persuade the Court that this central merits question—Where
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`did the information come from?—can ultimately be answered with class-wide proof. The
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`DPPA defines a “motor vehicle record” as “any record that pertains to a motor vehicle
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`operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued
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`by a department of motor vehicles.” 18 U.S.C. § 2725(1). In light of that definition, no party
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`has argued that accident reports are themselves “motor vehicle records.” Rather, Plaintiffs
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`8 
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`proceed under the theory that, when an accident occurs, the investigating officer gathers name
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`and address information from either a driver’s license or a database operated by the Division,
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`and that that information retains a motor-vehicle-record character even as it becomes part of
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`another document.8 (See, e.g., ECF Nos. 185 at 2; 220 at 25.)
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`The evidentiary problem with this theory is twofold. First, the record shows that name
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`and address information included in DMV-349s sometimes comes from sources other than
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`driver’s licenses or Division databases. For example, “on occasion, a trooper might respond
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`to an accident and discover that a driver does not have his license.” (ECF No. 185-10 at 5.)
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`In those cases, the driver might “orally give the trooper the information to input into the
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`accident report, such as the driver’s name, address, and license number.” (Id.; see also ECF
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`Nos. 206-2 at 19; 206-4 ¶ 3.) Alternatively, “[a]n officer could also have the driver write her
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`name and address, or provide a school ID, work ID, credit card, or other government ID.”
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`(ECF No. 206-4 ¶ 4.) These non-motor-vehicle-record sources can, of course, serve as a
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`starting point for an officer to auto-populate a DMV-349 with information by using a
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`Division-run database. However, the record shows that there are instances in which the auto-
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`population function is unavailable; perhaps due to a poor internet connection, or because the
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`database itself is down.9 (See ECF Nos. 185-10 ¶ 12; 185-11 ¶ 8.) In short, the names and
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`                                                            
`8 The parties disagree as to whether a driver’s license—in possession of its owner, but relinquished at
`the request of an investigating officer—is, in fact, a “motor vehicle record.” (See ECF Nos. 206 at 8–
`10; 220 at 27.) However, because the instant motion for class certification does not depend on
`resolution of that question, the Court declines to answer it at this time.
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` It appears that some law enforcement agencies make non-Division databases available for auto-
`populating accident report forms. (See, e.g., ECF No. 185-9 ¶¶ 4, 7 (“When completing DMV-349
`reports, [Greensboro Police Department] officers may seek to verify the identity of the drivers and
`vehicles through the Department’s [Records Management System].”).) Whether these databases rely
`on or call up Division-based records is unclear.
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` 9
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`9 
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`addresses found in DMV-349s do not necessarily originate from a driver’s license or Division-
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`run database.
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`That the identifying information in DMV-349s comes from multiple sources—some
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`“motor vehicle records,” some not—wouldn’t present a serious issue if the source of the
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`information in each form could be easily known. Were that the case, Plaintiffs could further
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`refine the proposed class to include only those individuals whose information was derived
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`from DPPA-protected sources. However, herein lies the second facet of the problem: once a
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`DMV-349 is completed and submitted, there is no way to tell the source of the information
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`on the form. (See, e.g., ECF Nos. 185-9 ¶¶ 8–9; 185-10 ¶ 16; 206-2 at 19; 206-4 ¶¶ 3, 5.)
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`Because a DMV-349 which includes DPPA-protected information appears indistinguishable
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`from one that doesn’t, the question of whether the information obtained by Defendants came
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`“from a motor vehicle record” does not lend itself to a common answer.
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`Plaintiffs argue that, by limiting their proposed class to only those individuals whose
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`DMV-349s have the “Yes” box checked next to the “Same Address on Driver’s License?”
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`prompt, the “from a motor vehicle record” element “can be proved on a class-wide basis with
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`common proof.” (See ECF No. 220 at 20–25.) In essence, their argument is that North
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`Carolina has a “uniform procedure” for completing DMV-349s, (id. at 21), pursuant to which
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`investigating officers are trained to mark the “Yes” box “only if the officer has compared the
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`current address to the license or to a [Division] database,” (id. at 23). Thus, they contend, a
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`class limited to only those individuals with their “Yes” boxes checked is a class whose DMV-
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`349 information “is the same as the information on [their] license[s] or in [their] record[s] in the
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`[Division] database.” (Id. at 30.)
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`10 
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`In response to this “verification” argument, Defendants first suggest that the policy of
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`checking the “Yes” box to signal confirmation may not, in fact, be uniformly followed across
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`all North Carolina law enforcement agencies. (See ECF No. 232 at 5–6.) However, even
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`assuming that all investigating officers follow the same procedure—only checking “Yes” if
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`they have actually verified a driver’s information against either her license or a Division
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`database—Plaintiffs’ theory faces another hurdle. Information flowing from a non-DPPA-
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`protected source does not automatically garner statutory protection whenever it is confirmed
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`to be “the same as” information in a “motor vehicle record.” As explained above, “[a] plain
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`reading of the DPPA makes clear that the Act was intended to prohibit only the disclosure or
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`redisclosure of information originating from [motor vehicle records].” See Siegler v. Best Buy Co.
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`of Minn., Inc., 519 F. App’x 604, 605 (11th Cir. 2013). The record, here, however, makes clear
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`that answering “Yes” to the “Same Address on Driver’s License?” question in no way alters
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`the source of the information on a DMV-349; rather, it merely signals to the Division “whether
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`its internal records have the driver’s most current address.” (See ECF No. 185-10 ¶ 11); see also
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`New Richmond News v. City of New Richmond, 881 N.W.2d 339, 356 (Wis. Ct. App. 2016)
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`(concluding that “information that is obtained from another source and subsequently verified
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`using DMV records is not subject to the DPPA, as long as, upon verification, the information
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`is not substantively altered to conform to the DMV records”).
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`Thus, Plaintiffs have not yet shown that the common and also crucial question of
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`whether each class member’s information was obtained “from a motor vehicle record” can be
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`answered “in one stroke.” Rule 23(a) commonality is still satisfied here, as the class members
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`are united by the two other common questions of law and fact discussed above. However, as
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`11 
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`explained further below, the inability to readily determine the source of any given class
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`member’s DMV-349 information weighs heavily against certification.
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`B. Typicality
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`The next prerequisite is that “the claims or defenses of the representative parties are
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`typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality does not
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`require “that the plaintiff’s claim and the claims of class members be perfectly identical or
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`perfectly aligned”—some minor variation between a named plaintiff’s individual claim and
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`those of the class members she aims to represent is to be expected. See Dieter v. Microsoft Corp.,
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`436 F.3d 461, 467 (4th Cir. 2006). However, courts will readily deny class certification “when
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`the variation in claims strikes at the heart of the respective causes of actions.” See id. That is
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`the case here. According to the complaint, the officer investigating each of the named
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`Plaintiffs’ accidents asked for (and was given) the Plaintiff’s driver’s license, then used that
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`license to complete a DMV-349. (See ECF No. 180 ¶¶ 50–51.) However, as explained above,
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`this experience is not necessarily typical.10 Not all DMV-349s are completed using a driver’s
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`license, and, sometimes, officers may not gather information “from a motor vehicle record”
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`at all.
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`In another DPPA case involving accident reports and the marketing of legal services,
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`the Northern District of Illinois declined to certify a proposed class based, in part, on its
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`finding that typicality was lacking. See Pavone v. Meyerkord & Meyerkord, LLC, 321 F.R.D. 314,
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`                                                            
`10 In fact, not even all of the named Plaintiffs appear to have shared this experience. Contradicting
`the complaint, Plaintiff Justin Blakeslee testified in his deposition that the officer investigating his
`accident did not actually ask him for his driver’s license or registration. (See ECF No. 206-5 at 11.)
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`12 
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`323 (N.D. Ill. 2017). There, as here, the evidence revealed that police officers throughout the
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`state prepared accident reports “using various sources of information and not necessarily from
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`a driver’s license,” as had been the case for the named plaintiff. Id. In light of that variability,
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`the court concluded that the named plaintiff’s DPPA claims “d[id] not have the same essential
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`characteristics as the class claims” and were therefore not typical.11 See id. This Court reaches
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`the same conclusion and finds that Plaintiffs have not demonstrated typicality.
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`Because the prerequisite of typicality is absent here, certification is inappropriate. This
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`would generally end the Court’s inquiry; however, because of the Court’s obligation to conduct
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`a “rigorous analysis” of Rule 23’s criteria, and to avoid arguments raised but not addressed
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`serving as the basis of future litigation, the Court, in the interest of judicial economy, will
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`discuss the remaining arguments for and against certification.
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`C. Adequacy of Representation
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`Representative parties and class counsel must “fairly and adequately protect the
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`interests of the class.” Fed. R. Civ. P. 23(a)(4), (g)(4); see also Sharp Farms v. Speaks, 917 F.3d
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`276, 290 & n.7 (4th Cir. 2019). Defendants challenge the adequacy of both Plaintiffs and their
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`counsel, White & Stradley, PLLC, to represent the proposed class. (See ECF Nos. 201 at 14–
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`22, 35–39; 206 at 15–18; 232 at 12–16.) In order to properly consider their arguments,
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`                                                            
`11 In Wilcox v. Swapp, the Eastern District of Washington certified a class whose members had likewise
`had their personal information obtained from accident reports by a law firm. See 330 F.R.D. 584, 589,
`599 (E.D. Wa. 2019). The distinguishing feature of that case, however, was that the class was limited
`to “drivers identified in Police Traffic Collision Reports whose Personal Information, as defined by the
`DPPA, was derived from a Department of Licensing record (e.g. license, registration or database)” and
`obtained by the defendant firm. Id. at 589–90 (emphasis added). Because every class member’s
`information, by definition, was derived “from a motor vehicle record,” the court determined that the
`class “[did] not suffer from the same typicality deficiencies that the proposed classes in Pavone . . .
`presented.” Id. at 592.
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`13 
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`however, the Court must first address two pending motions, filed by Defendants, to strike
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`certain declarations which specifically relate to the question of adequacy. (ECF Nos. 202;
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`204.)
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`In support of their motion, Plaintiffs submitted a set of twelve affidavits and
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`declarations. (ECF Nos. 185-1 through 185-12.) Six of those declarations belonged to the
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`named Plaintiffs—one attributable to each—and, except for some minor differences, were
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`substantively identical. (See ECF Nos. 185-1 through 185-6.) A seventh, relevant here, came
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`from Plaintiffs’ attorney, J. David Stradley. (ECF No. 185-12.)
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`Defendants move to strike the seven described declarations on two main grounds.
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`First, they contend that Plaintiffs’ declarations are “improper attempt[s] to contradict . . . prior
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`deposition testimony.” (See, e.g., ECF No. 226 at 14.) During their depositions, Plaintiffs
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`sometimes displayed a questionable understanding of their responsibilities as potential class
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`representatives. (See, e.g., ECF Nos. 206-9 at 46; 206-14 at 8; 206-15 at 11.) However, their
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`declarations—signed just a few days later—state in no uncertain terms that all Plaintiffs are
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`“prepared to fulfill” the specific duties required of class representatives. (See, e.g., ECF No.
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`185-1 ¶¶ 7–10.) Based on these differences, Defendants argue that the depositions and
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`declarations conflict to such a degree that the latter should be stricken entirely. (See, e.g., ECF
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`No. 205 at 4–8.)
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`It is true that “a party cannot create a genuine issue of fact . . . simply by contradicting
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`his or her own previous sworn statement . . . without explaining the contradiction or
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`14 
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`attempting to resolve the disparity.”12 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
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`(1999). However, Plaintiffs assert that the purpose and effect of their declarations is not to
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`reverse prior statements of fact, but rather to demonstrate that they recall (or have since more
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`fully learned about about) their fiduciary responsibilities to the proposed class. (See ECF No.
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`219 at 3.) Having compared the depositions and declarations, the Court finds this explanation
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`satisfactory.
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`Defendants’ second argument is that all of the declarations should be stricken because,
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`in their original form, they did not include language stating that they were true and accurate
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`under penalty of perjury. (See, e.g., ECF No. 205 at 2–4.) However, Plaintiffs readily
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`acknowledged this defect, (see ECF No. 219 at 2), and have since filed supplemental
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`declarations which include the words “I declare under penalty of perjury that the foregoing is
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`true and correct,” (see, e.g., 220-18 ¶ 18). Defendants do not dispute that this change brings
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`the declarations into technical compliance with 28 U.S.C. § 1746, the statute governing
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`unsworn affidavits. Further, although the supplemental declarations were submitted two-and-
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`a-half months after the deadline to move for class certification, (see id. at 5; July 6, 2019 Text
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`Order), it is within this Court’s discretion to consider them, see Monroe, 579 F.3d at 384
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`(deferring “to the right of a district court to set and enforce . . . filing deadlines” related to
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`class certification).
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`                                                            
`12 This “sham-affidavit” rule usually arises in the summary judgment context. See, e.g., Kinser v. United
`Methodist Agency for the Retarded–W. N.C., Inc., 613 F. App’x 209, 210 (4th Cir. 2015). However, other
`district courts have applied the rule when striking flatly contradictory evidence at the class certification
`stage. See, e.g., Alig v. Quicken Loans Inc., No. 5:12-CV-114, 2017 WL 5054287, at *13 (N.D.W. Va. July
`11, 2017).
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`15 
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`For these reasons, Defendants’ motions to strike will both be denied, and the Court
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`will scrutinize the declarations alongside Plaintiffs’ deposition testimony as it conducts its
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`adequacy analysis.
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`i.
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`Plaintiffs’ knowledge and involvement.
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`The adequacy inquiry entails an investigation into the representatives’ knowledge—
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`both of the case and of their duties to the proposed class—as well as their credibility and
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`integrity. See generally id. at 385; Newberg §§ 3:67–3:68. Certification may be inappropriate
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`where the named plaintiffs demonstrate so little understanding of their case, or take so light a
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`hand in its direction, as to raise doubts about their ability to protect the interests of the class.
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`See 1 McLaughlin on Class Actions § 4:29 (16th ed. 2019). “Generally,” however, “the
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`representative’s understanding of the basic facts under