The Pennsylvania Supreme Court issued its highly anticipated decision in Gregg v. Ameriprise Financial, Inc. at the end of last week.

In 1996, the General Assembly amended the catchall provision of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-2(4)(xi), to prohibit anyone who advertises, sells, or distributes goods or services from “engaging in any deceptive conduct . . . which creates a likelihood of confusion or misunderstanding” during a transaction.  Prior to that amendment, the catchall provision only prohibited “fraudulent conduct” creating a likelihood of confusion or misunderstanding and it was well-settled that a plaintiff would have to show all of the elements of fraud in order to prevail.  Since the 1996 amendment, the lower courts, state and federal, have struggled to ascertain and apply the necessary elements of a cause of action under the deceptive conduct prong of the catchall provision.  Some courts required a plaintiff to prove the state of mind of the defendant by showing either negligence or an intent to deceive.  Many plaintiffs also argued, though few courts agreed, that a plaintiff need not demonstrate justifiable reliance in order to prevail under the deceptive conduct prong.

In Gregg, a 4-3 majority of the Pennsylvania Supreme Court finally put these issues to rest.  First, citing its decision in Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), the Supreme Court explained that section 201-9.2 “creates a causation element, which requires a private plaintiff to demonstrate justifiable reliance . . . [r]egardless of which unfair method of competition a plaintiff challenges in a private cause of action, therefore, Section 201-9.2 requires the plaintiff to establish justifiable reliance.”

Second, as to whether the deceptive conduct prong required any showing of intent, the majority first recognized that the General Assembly intended the 1996 amendment to broaden the scope of liability under the catchall provision: “in 1996, the General Assembly expanded the unlawful conduct barred by the catch-all provision so as also to prohibit deceptive conduct.”  The majority then applied what it considered to be the plain language of the statute: “The plain language of the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding.  That is all that is required. . . [and] does not depend upon the actor’s state of mind.”  In short, the majority concluded that the deceptive conduct prong imposes “strict liability” for deceptive conduct that creates a likelihood of confusion or misunderstanding and upon which the consumer justifiably relies.

The dissent argued that by eliminating any state of mind requirement the majority rendered the fraudulent conduct prong “mere surplusage” and violated the rule of statutory construction that the General Assembly intends an entire statute to be effective.  The dissent explained: “The majority’s construction of Section xxi – imposing strict liability for deceptive conduct – obviates the need for a consumer to ever allege fraudulent conduct in order to prevail under this section.  By this interpretation, the legislature’s addition of the language ‘deceptive conduct’ effectively swallows Section xxi’s companion prohibition against fraudulent conduct which immediately precedes it, rendering that companion provision meaningless.” The majority brushed aside the dissent’s argument concluding that given the statute’s “plain language”, “our task is complete.”

As a result of Gregg, neither a private plaintiff nor the Attorney General need establish the defendant’s state of mind in order to prevail under the deceptive conduct prong.  A private plaintiff is also relieved of the burden of proving a uniform state of mind when seeking the certification of a putative class.  Gregg did not give the plaintiff’s bar everything it may have desired, however.  Plaintiffs, including those seeking to certify a class, will still need to demonstrate justifiable reliance.  That remains a difficult burden and a particular obstacle to class certification as the courts view the issue as highly individualized.

 

The Attorneys General of California, Illinois, and New York have filed their opposition to the OCC’s cross-motion for summary judgment in their lawsuit to enjoin the OCC’s final rule (Rule) purporting to override the Second Circuit’s Madden decision as to national banks and federal savings associations.  In their filing, the AGs also reply to the OCC’s opposition to their summary judgment motion.  The OCC must file its reply to the AG’s opposition to its summary judgment motion by February 25, 2021, and a hearing on the summary judgment motions is scheduled for March 19, 2021.

It is unclear what impact the change to a Biden Administration will have on the OCC Rule.  The OCC’s reply will be particularly significant because it will be the OCC’s first filing in the case since President Biden’s inauguration.  In a letter sent to then President-elect Biden in December 2020, House Financial Services Committee Chairman Waters called upon the Biden Administration to rescind the OCC Rule as well as the FDIC’s Madden-fix rule.  Although President Biden has not yet nominated a new Comptroller of the Currency, it is possible the OCC will want to revisit the Rule and decide to no longer defend it in the lawsuit.  (Similar uncertainty exists as to the OCC’s “true lender” rule and the FDIC’s Madden-fix rule which are also the subject of pending litigation.  While FDIC Chairman McWilliams, appointed by former President Trump, has indicated that she plans to remain in her position as Chairman until her five-year term ends in 2023, Democrats will hold a majority of FDIC seats.)

In their latest filing, the AGs make the following principal arguments:

  • The OCC failed to comply with the National Bank Act (NBA) provision (Section 25b), added by the Dodd-Frank Act, that only permits the OCC to issue a rule that preempts state law if the state law significantly interferes with a national bank’s exercise of its powers.  In response to the OCC’s claim that it did not make a preemption determination subject to Section 25b but instead construed the substantive scope and meaning of NBA Section 85, the AGs argue that the OCC’s interpretation of a statute can still be subject to Section 25b and that the OCC’s Rule interprets Section 85’s preemptive scope by stating that Section 85 applies to loan buyers.
  • The OCC only has authority to regulate the conduct of banks.  Because the OCC Rule only speaks to the interest that a loan buyer can charge after a bank transfers a loan, the Rule only governs the conduct of non-banks and therefore unlawfully exceeds the OCC’s authority.
  • The OCC Rule conflicts with the plain language of Section 85 and 12 U.S.C. §1463 which, respectively, speak only to interest that a national bank or federal savings association may charge.
  • The absence of language in Section 85 regarding loan buyers does not create a “gap” for the OCC to fill without a delegation of authority from Congress for the OCC to promulgate a rule regulating interest charged by non-bank buyers of national bank loans.
  • Unlike contract rights, Section 85 preemption is a statutory privilege that cannot be assigned.
  • The OCC Rule is arbitrary and capricious because it is based on speculation regarding Madden’s negative impact on credit markets and there is contradictory evidence indicating Madden did not have a significant negative effect on credit availability.  The OCC also failed to consider the Rule’s impact on facilitating predatory lending arrangements between national banks and non-banks.

We will report ensuing developments.

The OCC has issued a bulletin that includes a self-assessment tool for OCC-supervised banks to evaluate how prepared they are to address the risks arising from the expected cessation of the publication of the London Inter-Bank Offered Rate (LIBOR) next year.

In November 2020, the OCC, together with the FDIC and the Federal Reserve Board, issued a “Statement on LIBOR Transition” that encouraged banks to transition away from LIBOR as soon as possible, and in any event by December 31, 2021.  In the statement, the agencies indicated that the LIBOR administrator has announced it will consult on its intention to cease publication of the one week and two month U.S. Dollar (USD) LIBOR settings immediately following LIBOR publication on December 31, 2021, and the remaining LIBOR settings immediately following the LIBOR publication on June 30, 2023.  The agencies advised banks that new contracts entered into before December 31, 2021 should either use a reference rate other than LIBOR or have robust fallback language that includes a clearly defined alternative reference rate after LIBOR’s discontinuation.

In its new bulletin, the OCC indicates that in 2021, LIBOR exposure and risk assessments and cessation preparedness plans should be at least near completion with appropriate management oversight and reporting in place.  It also states that most banks should be working toward resolving replacement rate issues while communicating with affected customers and third parties, as applicable.

The assessment tool is a check list of questions divided into four sections.  (The OCC notes that not all sections or questions apply to all banks.)  The sections and their objectives are as follows:

  • Exposure assessment and planning.  The section contains questions for a bank to consider in assessing whether it (1) is managing LIBOR cessation from an appropriately detailed transition plan commensurate with the size and complexity of LIBOR exposures, and (2) has appropriate processes in place to implement LIBOR transition plans.
  • Replacement rates. The section contains questions for a bank to consider in assessing whether management has planned for identified appropriate replacement rates and spread adjustment methodologies.
  • Fallback language. The section contains questions for a bank to consider in assessing whether management has planned for and taken sufficient actions to ensure the appropriateness of fallback language in both existing and new contracts.
  • Progress and oversight.  The section contains questions for a bank to consider in assessing whether progress toward LIBOR cessation preparedness is sufficient given the size and complexity of risk exposure.

On February 2, 2021, the Federal Reserve (“Fed”) announced that the launch date for its instant payments platform—FedNow—would be sooner than originally expected.  The announcement narrows the delivery timeframe by a full year.

FedNow provides interbank clearing and settlement, which enables funds to be transferred between banks and credited to accounts in near real-time.  The Fed’s move-up of the anticipated launch date appears to be prompted by criticism that the U.S. is lagging behind other countries with respect to instant payments platforms.  It is expected that FedNow will be particularly appealing to smaller and mid-sized financial institutions that need an entre-point to instant payments platforms.

FedNow’s initial launch will include core clearing and settlement functionality and key value-added features, such as a request-for-payment capability and tools to support participants in their handling of payment inquiries, reconcilements and certain exceptions.  The Fed plans to supplement FedNow’s core functionality in subsequent releases.

Before FedNow is released, it will be extensively tested to ensure that it is market-ready.  In the first quarter of this year, the Fed plans to finalize FedNow’s ISO specifications, an international standard for payments messaging.  The Fed is also considering adding cross-border payment capabilities after the initial launch.

The latest announcement is significant because of its focus on interoperability.  The ISO specifications are an important tool for financial institutions, processors, and others to understand how to interface and send messages on the system.  The Fed is also working to integrate FedNow with the RTP Network offered by The Clearinghouse so that the two systems can effectively operate alongside one another.

According to Kenneth Montgomery, first vice president and chief operating officer at the Federal Reserve Bank of Boston, the Fed does not yet have an estimate for the ultimate cost of the system.  Before its launch, FedNow will also need to devise a pricing structure, which will need to ensure that the service can recover the network’s development costs.

What is our 101 take on FedNow and RTP Network? The United States is a relatively new player in the real-time payments space.  The Clearing House launched the RTP Network back in November 2017 and is currently the only RTP rail servicing the United States.  The Fed’s entry into the real-time payments space could mean more opportunities for participants in the U.S. payments ecosystem to allow them access to real-time payments for a variety of use cases, from real-time access to wages for gig workers to a transformation of treasury and payroll services for corporations (no more costly checks!) and increase overall certainty in payments.

For more information, see our article “Will COVID-19 Fraud Issues Impact the Use of Real-Time Payments” and podcast “An Introduction to Real-Time Payments” on the topic of real-time payments and related issues.

 

In Part I of our two-part podcast, we are joined by special guest former CFPB Director Richard Cordray.  After discussing the process of transitioning to new leadership, Mr. Cordray shares his thoughts on how Mr. Uejio and, if confirmed by the Senate, Mr. Chopra, are likely to approach their new leadership roles at the CFPB and their expected priorities.

Ballard Spahr attorney Alan Kaplinsky hosts the conversation.

Click here to listen to the podcast.

As we reported, Acting CFPB Director Dave Uejio recently shared a blog post in which he directed the Bureau’s Consumer Response Unit to prepare and publish a report highlighting companies with a poor track record of responding to consumer complaints. He stated that “senior leadership of these companies can expect to hear from me.” Acting Director Uejio also expressed concern about “disparities in some companies’ responses to Black, Brown, and Indigenous communities” found by consumer advocates, but he did not name those consumer advocates or the studies that may have prompted his comments.

First, with regard to Acting Director Uejio’s comments about responsiveness to consumer complaints, the CFPB’s own website currently indicates that 97% of all companies provide timely responses to consumer complaints. Based on that statistic, U.S. companies regulated by the CFPB appear to take consumer issues reported to the Bureau seriously, and if any are slow to respond, it would be a small fraction of only 3% of CFPB-regulated entities.

Second, we are aware of several studies that might have prompted Uejio’s comments about racial disparities in company complaint responses – some of which are older and others that are more recent. For example, back in 2013, the National Community Reinvestment Coalition issued a study alleging that people in minority communities were more likely to submit complaints to the CFPB than those in predominantly white areas, and that banks were more likely to address concerns of consumers from predominantly white neighborhoods than those from minority areas.

Over the past three years, two academic studies have used the CFPB complaint database for empirical research and a 2018 FTC study leveraged the Consumer Sentinel database, which contains millions of consumer complaints filed with the FTC, CFPB and other federal and state government agencies. In each study, the researchers used proxy data based on matching addresses or zip codes to U.S. Census data to determine race, ethnicity and socioeconomic demographics. A brief synopsis of each study follows below:

  • A 2021 study by two Boston College researchers, entitled “The Financial Restitution Gap in Consumer Finance: Insights from Complaints filed with the CFPB”, found that complaints from low-income zip codes or zip codes that have a larger share of African American population are approximately 30% less likely to receive financial restitution than complaints from high-income and low-African American representation by zip codes. They also found that complaints filed during the Trump Administration were 30% less likely overall to result in restitution than during the Obama Administration.
  • In a study entitled “Color and Credit: Race, Regulation, and the Quality of Financial Services” published in 2020, professors Taylor Begley and Amiyatosh Purnanadam looked at the “quantity versus quality” tradeoff in consumer financial services. The authors reviewed instances of fraud, mis-selling and poor customer service (indications of quality) for mortgage products by reviewing CFPB consumer complaints during the period 2012-2016. The authors found substantially more complaints in zip codes with lower than average income and educational attainment and higher percentages of minority populations. The authors concluded that although the quantity of financial products and services has increased, the quality of the offerings greatly decrease for lower-income, minority borrowers.
  • A 2018 FTC study authored by Devesh Raval (“Which Communities Complain to Policymakers?”), which used the Consumer Sentinel database, found disparities in complaints submitted to the FTC, Better Business Bureau and CFPB. The study found that complaints vary across communities, but that higher complaint rates exist in more heavily black, college educated, and urban communities, whereas lower complaint rates were found in more heavily Hispanic and higher household size communities. The demographics of complaints were quite different for the CFPB, however, with much higher rates of complaints from black and college educated areas compared to the FTC or Better Business Bureau. Significantly higher rates of finance-related complaints came from black communities across all three complaint sources (CFPB, FTC and Better Business Bureau).

Certain limitations underlie all three studies, however.  For example, the CFPB does not collect protected class information in accepting consumer complaints, so any studies of consumer complaint data must of necessity rely on proxy data to determine race and ethnicity.  Proxies have been shown to be inherently unreliable with high error rates. In addition, the CFPB’s complaint database contains limited, summary information about complaints that only shows zip code (and sometimes only the first 3 digits to protect privacy), together with an indicator variable of whether the complainant is elderly or a servicemember/veteran.  So as a threshold matter, relying in part on abbreviated zip code information from the CFPB’s consumer complaint database does not represent solid empirical data.

In addition, none of the studies attempts to control for variables that might impact the outcome of a complaint, such as the subject matter or complexity of the complaint, or even whether the complaint was well-founded in the first place. We doubt that such variables can be controlled for in an analysis, but without them, there is no way to avoid comparing apples and oranges within the complaint population. Treating them all as fungible, however, seems to us to be an unfounded starting point for these analyses.

Given the limitations of these studies, if the CFPB thinks there are racial or ethnic disparities in company responses to consumer complaints (timeliness, quality of customer service, restitution, etc.), we believe the Bureau should conduct its own independent study rather than rely on third-party studies. The CFPB has all of the data from the original complaints that it can draw upon to provide better data for such an analysis.

What does all of this mean for regulated financial institutions and financial services companies? Based on the title of Acting Director Uejio’s blog post (“Consumers and their experiences to be at the foundation of CFPB policymaking”) and the content, which indicates the CFPB will “mak[e] sure that consumers who submit complaints to [the Bureau] get the response and the relief they deserve,” it is clear that consumer complaint management has suddenly taken on heightened attention under new CFPB leadership. This will play out not only in the way the CFPB interacts with financial institutions and financial services companies through its complaint portal about individual complaint responses, but also in the way that complaint information is used to inform the Bureau’s policymaking, supervision and enforcement approach. Consumer complaints will be used as a key source for targeted examinations, investigations and enforcement, as well as to drive the CFPB’s rulemaking process and issuance of guidance.

Financial institutions and financial services companies supervised by the CFPB should view Acting Director Uejio’s blog post as a warning to prepare for additional scrutiny of consumer complaints. Now is the time to revisit consumer complaint management programs, policies and procedures and processes to ensure that they meet current CFPB expectations and can withstand close examination. Ensuring a timely, substantive and complete response that fully addresses a consumer’s concern and treating all complainants fairly and consistently are critical objectives. Under the CFPB’s Company Portal Manual, regulated entities are required to respond to a complaint within 15 calendar days and resolve the complaint within 60 calendar days.

For a more in-depth discussion of this issue, as well as a discussion of best practices for an effective consumer complaint management program, please tune into our podcast which will air on March 8, 2021.

Effective January 1, 2021, California’s revamped consumer protection agency—the Department of Financial Protection and Innovation (DFPI)—has new, sweeping power over consumer financial services providers in the most populous U.S. state.  To help clients navigate this new regulatory authority, Ballard Spahr’s nationally recognized Consumer Financial Services Group has created a California “Mini-CFPB” team.  The new team draws on our long history of counseling clients whose businesses are governed by government regulatory agencies, including the Consumer Financial Protection Bureau—the model for the DFPI—as well as the DFPI’s predecessor agency, the California Department of Business Oversight.

Since the DFPI gained its expanded authority last month, we have been hired to represent clients in connection with two of the first waves of DFPI investigations. In addition to handling enforcement matters, our DFPI-related capabilities include helping clients with agency examinations, licensing issues, and rulemaking proposals.  Our team is closely monitoring all regulatory, supervisory, and enforcement developments relating to the DFPI.

To provide one location where members of the consumer financial services industry can access key information, we have created a California Consumer Financial Protection Law Resource Center that can be accessed on our blog, Consumer Finance Monitor.  Additional insights will be highlighted in our Consumer Finance Monitor podcast, where guests have included DFPI General Counsel Bret Ladine.

 

Last week, HUD’s Acting Assistant Director for Fair Housing and Equal Opportunity issued a memorandum directing HUD’s Office of Fair Housing and Equal Opportunity to take a series of actions “to administer and fully enforce the Fair Housing Act to prohibit discrimination because of sexual orientation and gender identity.”

The memorandum is intended to implement President Biden’s Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (Executive Order).  The Executive Order cites the U.S. Supreme Court’s decision last year in Bostock v. Clayton County, Georgia, in which the Court ruled that firing an employee for being homosexual or transgender constitutes discrimination based on the employee’s sex in violation of Title VII of the Civil Rights Act. Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”

The Executive Order states that “under Bostock’s reasoning, laws that prohibit sex discrimination—including Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act, along with their respective implementing regulations—prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.” (citations omitted).  The Executive Order directs the heads of every federal “agency” to assess all agency actions that were taken “under Title VII or any other statute or regulation that prohibits sex discrimination” and “consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and [the Biden Administration’s policy to prevent and combat discrimination on the basis of gender identity or sexual orientation, and fully enforce Title VII and other laws that prohibit such discrimination.]”

By its terms, the Executive Order does not apply to agencies defined as an “independent regulatory agency” by 44 U.S.C. Sec. 3502(5).  Despite the U.S. Supreme Court’ Seila Law decision making the CFPB Director removable at will by the President, the CFPB continues to be included as an “independent regulatory agency” by Sec. 3502(5).

Nevertheless, it is likely that the CFPB under the Biden Administration will take steps to implement the Administration’s policy goals, including making discrimination on the basis of gender identity or sexual orientation a focus of fair lending supervision and enforcement.  The ECOA makes it “unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract).”  Under former Director Cordray’s leadership, the CFPB began to build a case for extending ECOA protection to discrimination based on gender identity or sexual orientation.  While the CFPB under former Director Kraninger’s leadership did not publicize any efforts to extend ECOA protections to sexual orientation or gender identity, the CFPB continued to maintain information about credit discrimination on its website containing the following statement: “Currently, the law supports arguments that the prohibition against sex discrimination also affords broad protection from discrimination based on a consumer’s gender identity and sexual orientation.”  Also, in lieu of holding a symposium on ECOA issues, the CFPB issued a request for information in July 2020 seeking comment on various issues relating to the ECOA and Regulation B.   Among such issues is whether the Supreme Court’s Bostock decision should affect how the CFPB interprets the ECOA’s prohibition of discrimination on the basis of sex, and if so, in what ways.

Companies should also be mindful of the fact that numerous state laws already prohibit discrimination in credit transactions on the basis of sexual orientation or gender identity.  Companies that have not already revised their policies, procedures, and fair lending analyses to incorporate discrimination based on sexual orientation or gender identity should not delay in giving attention to this issue.

 

The CFPB’s final rule on the role of supervisory guidance was published in last Friday’s Federal Register.

On January 20, 2021, President Biden’s Chief of Staff Ronald Klain issued a memorandum to the heads of executive departments and agencies setting forth the terms of a regulatory freeze.  The memorandum included the requirement for a rule that had been sent to the Federal Register but not yet published to be immediately withdrawn from the Office of the Federal Register and approved by a department or agency head appointed by President Biden.

The CFPB’s final rule on the role of supervisory guidance was issued on January 19, 2021.  Accordingly, assuming the CFPB is now considered an executive agency as a result of the U.S. Supreme Court’s Seila Law decision making the CFPB Director removable at will by the President, Mr. Klain’s memorandum would have required the CFPB to withdraw its rule for approval by Acting Director Uejio.  The publication of the CFPB’s final rule in the Federal Register presumably means that Acting Director Uejio has approved the final rule.

 

 

The Eleventh Circuit has joined the Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting administrative feasibility as a prerequisite for class certification. The decision reverses unpublished Eleventh Circuit authority and deepens a circuit split with the First, Third, and Fourth Circuits on the issue.

In Cherry v. Dometic Corporation, 18 owners of gas-absorption refrigerators manufactured and sold by Dometic Corporation sued the company over alleged product defects. The plaintiffs sought to represent a class consisting of “all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997.” At the class-certification stage, the parties each addressed whether the proposed class satisfied Rule 23’s ascertainability requirement. Plaintiffs argued, among other things, that the proposed class was ascertainable because the class definition relied on objective criteria. Dometic asserted that ascertainability requires proof of administrative feasibility, which the plaintiffs failed to satisfy. The district court denied certification. Relying on unpublished Eleventh Circuit decisions, the district court concluded that administrative feasibility is an element of Rule 23’s ascertainability requirement, and the plaintiff had not satisfied it.

Plaintiffs appealed, arguing that administrative feasibility is not required to satisfy ascertainability or otherwise certify a class. The Eleventh Circuit agreed. As explained by Chief Judge Pryor, ascertainability – i.e., the requirement that class membership is capable of determination – is an implied prerequisite of Rule 23.” Yet “[a]dministrative feasibility is not an inherent aspect of ascertainability,” as class “membership can be capable of determination without being capable of convenient determination.” Nor is administrative feasibility required for class certification under circuit precedent or Rule 23’s text. Accordingly, “[p]roof of administrative feasibility cannot be a precondition for certification.”

While administrative feasibility is no longer a prerequisite for certification in the Eleventh Circuit, it remains relevant to Rule 23(b) classes. A district court may consider administrative feasibility as part of Rule 23(b)(3)(D)’s manageability criterion. “But because Rule 23(b)(3) requires a balancing test, it does not permit district courts to make administrative feasibility a requirement.” Chief Judge Pryor further cautioned that “[a]dministrative feasibility alone will rarely, if ever, be dispositive, but its significance will depend on the facts of each case.”

It remains to be seen whether the Cherry decision will prompt more class actions in the Eleventh Circuit, especially in light of the appellate court’s recent rejection of incentive awards for named plaintiffs. For those lawsuits that are filed, plaintiffs may be trading a hurdle to certification for practical difficulties with identifying and notifying members of an unwieldy class.