In Ubaldi v. SLM Corp., No. 11-01320, 2014 U.S. Dist. LEXIS 38587 (N.D. Cal. Mar. 24, 2014), the plaintiffs sued student-loan institution Sallie Mae for allegedly imposing unenforceable choice-of-law provisions on some of its borrowers, as well as charging improper late fees and "usurious" interest.

The trial court denied certification on a number of grounds, including problems with the class definition and individualized issues that predominated. But I want to focus in on another of its reasons: the often-underused typicality requirement.

The defendant argued that at least one of the named plaintiffs (Chanee Thurston) was not typical of the subclass she sought to represent (the "Usury Subclass") because the interest on her loans was not usurious. (One loan was arbitrable, and so excluded from the class; another was below the cutoff; and the named plaintiff had paid nothing on the remaining loans.)

The plaintiffs responded by arguing that the unpaid loans made Ms. Thurston typical because she sought declaratory relief that the interest rates were excessive. The court, however, was not convinced. As it ruled:

Not only must Thurston be a member of the Usury subclass to satisfy the typicality requirement, but her claims must be "reasonably coextensive" with those of absent class members. Because Thurston only has a claim for declaratory relief for usury, her claim is not reasonably coextensive with any class members who paid usurious interest and would have damages.

(Emphasis added.) In other words, if the relief a plaintiff seeks is substantially different from the majority of the proposed class, she is not typical of the class. Given the difficulties plaintiffs’ counsel often have finding issue-free representatives, this is a particular issue that defendants would do well to look harder at.