                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 14-6710

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL D. PAHUTSKI,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00211-MR-1; 3:12-cv-00308-MR)

Submitted:   September 25, 2014          Decided:   September 30, 2014

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael D. Pahutski, Appellant Pro Se.        Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Melissa   Louise  Rikard,   Assistant  United   States  Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Michael      D.   Pahutski     seeks     to   appeal    the    district

court’s   April   21,    2014    order   denying     seven   motions      Pahutski

filed while his 28 U.S.C. § 2255 (2012) motion was pending.                     For

the reasons that follow, we dismiss this appeal.

           This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and

collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–

46 (1949).    In the underlying order, the district court rejected

Pahutski’s motions to withdraw his guilty plea, for sanctions,

to strike the Government’s response to his § 2255 motion, and

for an expedited ruling on his § 2255 motion.                       As to these

rulings, the appealed-from order is neither a final order nor an

appealable interlocutory or collateral order.                 Accordingly, we

dismiss this appeal in part for lack of jurisdiction.

           The    district      court    also   rejected     Pahutski’s       three

motions for release or bail pending adjudication of his § 2255

motion.   Although a district court’s denial of such a request is

an   appealable   collateral      order,     see,    e.g.,   Pagan       v.   United

States, 353 F.3d 1343, 1345-46 & n.4 (11th Cir. 2003) (adopting

rule and collecting cases), in light of the district court’s May

28, 2014 order denying the § 2255 motion, Pahutski’s appeal of

this aspect of the court’s order is now moot.                     See Incumaa v.

                                         2
Ozmint, 507 F.3d 281, 285-86 (4th Cir. 2007) (setting forth the

principles of appellate mootness).            We therefore dismiss the

remainder   of   this   appeal   as   moot.     We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                DISMISSED

                                      3


488 F.2d 551
*dNelsonv.Henderson
73-3389
UNITED STATES COURT OF APPEALS Fifth Circuit
1/3/74

1
E.D.La.

2
AFFIRMED***

*
 Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N

***
 Opinion contains citation(s) or special notations


                IN THE SUPREME COURT OF PENNSYLVANIA
                           WESTERN DISTRICT

DONALD KRIMM AND AUDREY KRIMM,           : No. 35 WAL 2017
HIS WIFE,                                :
                                         :
                 Petitioners             : Petition for Allowance of Appeal from
                                         : the Order of the Commonwealth Court
                                         :
           v.                            :
                                         :
                                         :
MUNICIPAL AUTHORITY OF                   :
WESTMORELAND COUNTY,                     :
                                         :
                 Respondent              :

                                    ORDER

PER CURIAM

     AND NOW, this 5th day of July, 2017, the Petition for Allowance of Appeal is

DENIED.

     Petitioner’s motion for post-submission communication is also GRANTED.


742 F.Supp.2d 126 (2010)
Michael L. BROWN, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
Civil Action No. 10-0247 (ESH).
United States District Court, District of Columbia.
October 7, 2010.
*127 Michael L. Brown, Tucson, AZ, pro se.
Benjamin George Birkhill, Judith A. Kidwell, Robin M. Fields, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Michael Brown has sued the U.S. Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff is an inmate at the United States Prison in Tucson, Arizona, and is proceeding pro se. Plaintiff seeks access to all records concerning a third party, Victor A. Caldwell. The FBI contends that records responsive to plaintiff's request are exempt from production under FOIA Exemptions (b)(6) and (b)(7)(C). As such, the FBI now moves for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant the FBI's motion for summary judgment.

BACKGROUND
On July 2, 2009, plaintiff submitted a "third-party request" seeking access to all records at FBI Headquarters ("FBIHQ") pertaining to Victor Caldwell.[1] (Decl. of *128 David M. Hardy ["Hardy Decl."] ¶ 5.) Plaintiff's request included a signed privacy waiver from Caldwell. (Id.; see also id., Ex. A.) The FBI advised plaintiff that it had received his request by letter on August 6, 2009. (Id. ¶ 6.) Plaintiff then submitted additional correspondence asking for access to all information on Victor Caldwell, including records at the Milwaukee Field Office. (Id. ¶¶ 7-8.)
On September 23, 2009, the Record/Information Dissemination Section ("RIDS") in the Records Management Division ("RMD") of the FBI initiated its standard protocol for verifying the privacy waiver from Caldwell submitted by plaintiff. (Id. ¶ 16.) According to David M. Hardy, the Section Chief of RIDS, the Section was concerned about the validity of Caldwell's signature on the privacy waiver based on its "institutional knowledge and prior experience dealing with similar requests." (Id.) As a result, RIDS personnel sent an electronic communication to the BI Chicago Field Office to ask that a Special Agent contact Caldwell to verify the validity of his signature. (Id. ¶ 17; see also Decl. of Special Agent Jeffrey B. Moore ["Moore Decl."] ¶ 3.) Special Agent ("SA") Jerry Moore was selected to contact Caldwell by telephone. (Hardy Decl. ¶ 17.) SA Moore was selected to communicate with Caldwell because SA Moore had established a prior relationship with Caldwell and was able to recognize his voice during telephone conversations. (Moore Decl. ¶ 3.)
In October 2009, SA Moore called Caldwell using a telephone number in SA Moore's records. (Id. ¶ 4.) Once he had recognized Caldwell's voice and confirmed his identity, SA Moore discussed the privacy waiver submitted by plaintiff. (Id.) SA Moore explained to Caldwell that the waiver meant that, upon request, plaintiff would be provided access to any of Caldwell's files that the FBI had in its possession. (Id.) According to SA Moore, although Caldwell indicated that he had signed the waiver, he had not been aware of what it meant to "waive his right to privacy of his FBI files." (Id. ¶ 5.) Hence, Caldwell "indicated that he did not want any FBI files released to anyone at th[at] time" and that "he wished to withdraw his consent to the privacy waiver." (Id. ¶ 6.) Another special agent from the Chicago Field Office, SA Frank Bochte, informed RIDS personnel of the content of the conversation between SA Moore and Caldwell on November 13, 2009. (Id. ¶ 7.)
On December 2, 2009, and again on March 31, 2010, the FBI informed plaintiff by letter that it would be unable to process his request for information on a third party because Caldwell had withdrawn his privacy waiver. (Id. ¶ 9.) The FBI stated that it had
determined that disclosure of the records [plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy pursuant to FOIA Exemption (b)(6), 5 U.S.C. § 552(b)(6); and could reasonably be expected to constitute an unwarranted invasion of personal privacy pursuant to FOIA Exemption (b)(7)(C), 5 U.S.C. § 552(b)(7)(C).
(Hardy Decl., Ex. J.) Plaintiff filed his complaint on February 18, 2010. The FBI filed a motion for summary judgment on June 4, 2010. Attached to defendants' motion are declarations from David M. Hardy and SA Jeffrey Moore.

ANALYSIS
The FBI contends that it has properly invoked appropriate FOIA exemptions in declining to process plaintiff's request for documents concerning Caldwell and that it acted in good faith in ensuring that Caldwell's *129 privacy waiver was valid before proceeding. (Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ["Def.'s Mem."] at 5-7, 9.) As such, it argues that it is entitled to summary judgment. Plaintiff opposes the FBI's motion on two grounds: 1) the FBI's bad faith in "attempting to influence Caldwell after confirming [his] signature on the release authorization"; and 2) the FBI's premature claims that records it has not searched for are exempted from production. (Opp'n to Def.'s Mot. for Summ. J. ["Opp'n] at 1, 4.") The Court will review these challenges in turn.

I. STANDARD OF REVIEW
"FOIA cases appropriately may be decided on motions for summary judgment." Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007). Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the nonmovant, that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fischer v. Dep't of Justice, 596 F.Supp.2d 34, 39-40 (D.D.C.2009) ("In a FOIA case, summary judgment may be granted to the government if `the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.'") (quoting Greenberg v. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C.1998)). To prevail in a FOIA action, the agency must show that it made "`a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990)).
A requester may challenge the government's showing by "set[ting] out specific facts showing a genuine issue for trial," Fed.R.Civ.P. 56(e), that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). However, agency affidavits "are afforded a presumption of good faith," and an adequate affidavit "can be rebutted only `with evidence that the agency's search was not made in good faith.'" Defenders of Wildlife v. Dep't of Interior, 314 F.Supp.2d 1, 8 (D.D.C.2004) (quoting Trans Union LLC v. Fed. Trade Comm'n, 141 F.Supp.2d 62, 69 (D.D.C.2001)). In other words, a requester cannot rebut the good faith presumption through "`purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). But "if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Weisberg v. Dep't of Justice, 627 F.2d 365, 370 (D.C.Cir.1980) (internal quotation marks omitted).

II. FBI'S COMMUNICATIONS WITH CALDWELL
Plaintiff contends that "[w]hile the FBI may corroborate the signature on a release authorization, nothing in FOIA authorizes FBI to continue explaining to the signatory FBI's interpretation of the implications of the release authorization." (Opp'n at 1.) As such, he argues that the act of the FBI in "continuing to hold Caldwell on the telephone, and to further inquire into Caldwell's actions and reasoningafter Caldwell had confirmed his signature *130 was impermissible and an act of bad faith on the agency's part." (Id. at 2.) He further maintains that SA Moore "did not contact Caldwell solely to confirm his signature," but to "influence Caldwell and thereafter provide a declaration in an attempt to induce this Court to ignore" the original signed privacy waiver. (Id. at 2-3.) Plaintiff then postulates that "FBI simply does not want to release these records" because they concern the FBI's handling of its informants (such as Caldwell). (Id. at 3-4.)
Plaintiff's speculation that the FBI impermissibly attempted to convince Caldwell to withdraw his privacy waiver, without any evidence of misconduct or bad faith on the part of defendant, is insufficient to overcome the presumption of good faith the Court must accord to the declarations from Hardy and SA Moore. See SafeCard Servs., Inc., 926 F.2d at 1200 ("Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'") (quoting Ground Saucer Watch, Inc., 692 F.2d at 771). Hardy states in his declaration that when RIDS is concerned with the validity of a third-party privacy waiver, it has a "standard protocol" for verifying the waiver, which it used in this instance. (Hardy Decl. ¶ 16.) There is nothing in the FOIA statute (nor does plaintiff cite any case law) suggesting that a government agency may not authenticate privacy waivers, or that it may not ensure that a signatory to such a waiver understands the implications of that waiver.[2] Plaintiff's argument that SA Moore has "provided no signed withdrawal of [Caldwell's] release" is similarly unavailing, as there is nothing in FOIA suggesting that the FBI may not implement a policy that allows someone who has signed a privacy waiver to revoke that signature verbally to an FBI agent. Nor is there any requirement that the FBI "prove" Caldwell's revocation via a signed document, absent any evidence of bad faith. SA Moore's signed declaration, describing his contact with Caldwell and stating that Caldwell "did not want any FBI files released to anyone at th[at] time" (Moore Decl. ¶ 6), is sufficient. See Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.Cir.2007) ("Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'") (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982), and Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.Cir.1979)).
"Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984). The Court finds that the declarations submitted by Hardy and SA Moore adequately demonstrate that Caldwell no longer consents to the release of his FBI records to plaintiff. Because plaintiff presents no evidence to refute the facts as set forth by these declarations, and because there is no indication that the FBI has acted in bad faith, plaintiff's speculation that the FBI improperly contacted or influenced Caldwell is unpersuasive.

*131 III. PREMATURE CLAIMS OF EXEMPTION
In its December 2009 response to plaintiff's request for documents concerning Caldwell, the FBI stated that because Caldwell had withdrawn his privacy waiver, defendant was "unable to process [his] request." (Hardy Decl. Ex. E.) In its March 2010 response, the FBI further stated that without a privacy waiver, "disclosure of the records [plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy pursuant to [FOIA Exemptions (b)(6) and (b)(7)][3]." (Id., Ex. J.) Plaintiff argues that because the FBI has not yet conducted a search for responsive records, its attempt to claim FOIA exemptions is premature. (Opp'n at 4.) Plaintiff further contends that in order to claim such exemptions, the "FBI must first conduct the search, explain the search terms utilized, describe the ... records systems searched, provide the number of records, indicate the records that are withheld-in-full, and reasonably produce records that are withheld-in-part." (Id.) He maintains that the FBI's failure to complete these steps means that plaintiff "has no basis to evaluate the claimed exemptions, nor does the Court have a basis to evaluate FBI's claims." (Id.)
The FBI's refusal to process plaintiff's request for records constitutes a "Glomar" response. "If an individual is the target of a FOIA request, the agency to which the FOIA request is submitted may provide a `Glomar' response: the agency may refuse to confirm or deny the existence of records or information responsive to the request on the ground that even acknowledging the existence of responsive records constitutes an unwarranted invasion of the targeted individual's personal privacy." Robinson v. Attorney General of the U.S., 534 F.Supp.2d 72, 82 (D.D.C. 2008) (citing Nation Magazine, 71 F.3d at 893, and Phillippi v. CIA, 546 F.2d 1009, 1014-15 (D.C.Cir.1976)); see also Gardels, 689 F.2d at 1103 ("We have ... agreed that an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception."). Here, the FBI contends that confirmation of the existence of the records requested by plaintiffto wit, any FBI files concerning Caldwellwould "constitute a clearly unwarranted invasion of personal privacy" of the type FOIA Exemptions (b)(6) and (b)(7)(C) were enacted to prevent. (Hardy Decl., Ex. J.)

A. Caldwell's Privacy Interest
Despite its stated goal of agency disclosure in enacting FOIA, Congress "underst[ood] that disclosure of records containing personal details about private citizens can infringe significant privacy interests." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 766, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Further, "the mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation," and the "privacy interests of the persons mentioned in [] investigatory files do not necessarily diminish with the passage of time." Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.1987). Thus, "Exemption 7(C) `affords broad[] privacy rights to suspects, *132 witnesses, and investigators.'" SafeCard Servs., Inc., 926 F.2d at 1205 (quoting Bast v. Dep't of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981)). "[P]ersons involved in FBI investigationseven if they are not the subject of the investigation'have a substantial interest in seeing that their participation remains secret.'" Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 233 (D.C.Cir.1987)). "Exemption 7(C) takes particular note of the strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity." Id. (internal quotation omitted). Accordingly, there is a significant privacy interest in the names and identifying information of parties contained in the FBI files at issue. Martin v. U.S. Dep't of Justice, 488 F.3d 446, 457 (D.C.Cir.2007) ("`[T]hird parties who may be mentioned in investigatory files' and `witnesses and informants who provide information during the course of an investigation' have an `obvious' and `substantial' privacy interest in their information.") (quoting Nation Magazine, 71 F.3d at 894).
Here, Section Chief Hardy states in his second declaration that "if [the FBI] had any information responsive to plaintiff's request, it is reasonably likely to be contained in criminal investigative files of the FBI's [CRS]" and that "no other record system within the FBI would reasonably contain information about Mr. Caldwell."[4] (Second Decl. of David M. Hardy ["Second Hardy Decl."] ¶ 8.) Given this information, the Court finds that Caldwell has a strong privacy interest in keeping his possible involvement with the FBI generally, as well as the information possibly contained in the documents specifically requested by plaintiff, private. As Section Chief Hardy notes, "a response from the FBI that either confirms ... the existence of records on Mr. Caldwell would associate him with criminal activity." (Id.) Consequently, confirmation of the existence of records concerning Caldwell in the FBI's files, even if the FBI did not release them, would constitute an unwarranted violation of his privacy. See Fitzgibbon, 911 F.2d at 767; Branch, 658 F.Supp. at 204.

B. Public Interest in Documents Concerning Caldwell
Upon a finding that there is a privacy interest in the withholding of documents responsive to a FOIA request, "[t]he government may nonetheless be required to disclose the documents if the individual seeking the information demonstrates a public interest in the information that is sufficient to overcome the privacy interest at issue." Boyd v. Criminal Div. of the U.S. Dep't of Justice, 475 F.3d 381, 386-87 (D.C.Cir.2007) (citing Reporters Comm., 489 U.S. at 762, 776, 109 S.Ct. 1468). "In order to trigger the balancing of public interests against private interests, a FOIA requester must (1) `show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,' and (2) `show the information is likely to advance that interest.'" Id. at 387 (quoting Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004)). "[P]rivacy interests are particularly difficult to overcome when law enforcement *133 information regarding third parties is implicated." Martin, 488 F.3d at 457 (citing Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468) ("privacy interest protected by Exemption 7(C) is ... at its apex while the FOIA-based public interest in disclosure is at its nadir" when requester seeks a private citizen's criminal history information within the government's control); see also Fitzgibbon, 911 F.2d at 768 (rarely does a public interest outweigh an individual's privacy interest when law enforcement information pertaining to an individual is sought).
Here, plaintiff has not attempted to articulate a public interest in the release of FBI documents concerning Caldwell. However, in earlier FOIA requests made by plaintiff to the FBI, plaintiff suggested that he was involved in "ongoing litigation(s)" and that the requested documents are responses to "possible questions about the government's integrity which affected public confidence." (Hardy Decl., Ex. A at 3.) Assuming that plaintiff seeks documents responsive to his request in order to challenge his conviction and/or bring to light possible government misconduct, the Court finds that plaintiff has not demonstrated that either of these reasons constitute a "significant" public interest in documents concerning Caldwell. There is no indication that responsive documents would reveal government wrongdoing. See Boyd, 475 F.3d at 388 (affirming withholding of documents pursuant to Exemption (b)(7)(C) where plaintiff made only "[u]nsubstantiated assertions of government wrongdoing" in support of his claim that FOIA disclosures were necessary because government had violated discovery obligations). Moreover, plaintiff's personal interest personal interest in obtaining potentially exculpatory documents in order to attack his conviction "does not count in the calculation of public interest." Oguaju v. U.S., 288 F.3d 448, 450 (D.C.Cir.2002), vacated and remanded on other grounds, 541 U.S. 970, 124 S.Ct. 1903, 158 L.Ed.2d 464 (2004), reinstated, 378 F.3d 1115 (D.C.Cir.2004); see also Engelking v. DEA, 119 F.3d 980, 980-81 (D.C.Cir.1997); Johnson v. U.S. Dep't of Justice, 758 F.Supp. 2, 5 (D.D.C.1991); Neely v. FBI, 208 F.3d 461, 464 (4th Cir.2000).
Consequently, the Court finds that there is no public interest in the release of FBI documents concerning Caldwell, if they exist. Absent a public interest to weigh against the private interest Caldwell has in the withholding of these documents, the Court finds that the FBI's Glomar response to plaintiff's request, declining to process his claim for documents concerning a third party, is appropriate.

CONCLUSION
For the reasons stated above, the Court will grant defendant's motion for summary judgment. A separate Order accompanies this Memorandum Opinion.
NOTES
[1]  In particular, plaintiff seeks drug test results during and after Caldwall's incarceration and logs reflecting visitors he received. (Hardy Decl., Ex. A.)
[2]  FOIA criminalizes the use of "false pretenses" in the request or attainment of records under the statute, suggesting that falsification of records in support of a FOIA request does occur and that the FBI, the Department of Justice, and other agencies have an obligation to ensure that they do not release documents in reliance on such documents. See 5 U.S.C. § 552a(i)(3).
[3]  Exemption (b)(6) applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption (b)(7)(C) applies to "records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information .... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id., § 552(b)(7)(C).
[4]  Hardy's declaration also states that "[g]iven plaintiff's prior request for his own records as well as his current request, it is highly unlikely that any records on Mr. Caldwell would exist in FBI personnel files," but even if such personnel records did exist in the FBI's files, they "would still be exempt from disclosure pursuant to Exemptions 6 and 7(C)." (Second Hardy Decl. ¶ 8.)


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1074
                        ___________________________

                      Thomas E. Perez, Secretary of Labor

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

     Contingent Care, LLC; Endless Possibilities, LLC; Wolfgang J. Shields

                     lllllllllllllllllllll Defendants - Appellants
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                         Submitted: November 18, 2015
                             Filed: April 7, 2016
                                ____________

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
                        ____________

SHEPHERD, Circuit Judge.

      Wolfgang J. Shields, Contingent Care, LLC, and Endless Possibilities, LLC
(“Appellants”), appeal from the district court1 judgment under the Fair Labor
Standards Act (“FLSA”) in favor of the Secretary of Labor (“Secretary”) for

      1
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
$92,402.35 in unpaid wages, pre-judgment and post-judgment interest, as well as a
prospective injunction. Appellants assert that the court erred both in finding that
FLSA overtime requirements apply because Endless Possibilities is either not a
covered enterprise or Appellants’ employees are exempt, and in calculating the
amount of damages. Finding each argument without merit, we affirm.

                                        I.

       Contingent Care is located in Kansas City, Missouri and supplies employee
labor to Endless Possibilities, a day care which provides custodial care and
educational services to young children. Since 1998, Shields has been the 95% owner
of Endless Possibilities and 100% owner of Contingent Care. Between December
2008 and March 2014, Appellants employed over 100 workers. These workers
provided child care, planned lessons, and taught reading and math. Appellants
utilized a clock-in, clock-out system to track the hours each employee spent working
and to create weekly timecards. Timecards indicate that many employees frequently
worked over 40 hours per week.

      In 2005, Investigator Carol Puttroff of the Wage and Hour Division of the
Department of Labor (“DOL”) conducted an investigation of Endless Possibilities.
Puttroff found that Endless Possibilities had violated the FLSA by paying straight
time for work in excess of 40 hours per week. Puttroff informed Shields that such
work constituted overtime and must be compensated at a rate of one-and-a-half times
the hourly rate. Puttroff additionally explained to Shields the FLSA’s overtime and
recordkeeping requirements and provided Shields with written guidance on
complying with the FLSA. Shields entered a plan to pay the back wages owed and
agreed to correct the existing issues and comply with the FLSA in future.

     In 2008, Investigator Linda Gibbons of the Wage and Hour Division of the
DOL conducted another investigation of Endless Possibilities, which by that point

                                        -2-
included Contingent Care and Shields. The investigation again revealed
recordkeeping and overtime violations. Appellants had kept records of hours worked
on a monthly basis, and had continued to pay straight time for hours worked in excess
of 40 hours per week when the days fell on Saturday or Sunday. Gibbons explained
the violations and that future violations could result in assessment of FLSA civil
monetary penalties. Gibbons also provided written and verbal guidance on
complying with the FLSA. Again, Shields agreed to make changes to comply and to
pay back wages.

      In November 2010, Investigator Deann Alvarado of the Wage and Hour
Division began a third investigation into Appellants. Alvarado analyzed payroll
records, timecards, payroll detail sheets, and payday schedules. She interviewed
Shields, as well as current and former employees. Alvarado determined that there
were recordkeeping, overtime, minimum wage, and late payment FLSA violations.
Alvarado compiled the available data into spreadsheets and calculated that
$92,402.35 in back wages were owed. In September 2011, the Secretary filed a
lawsuit against Appellants alleging each type of FLSA violation that Alvarado had
discovered.

        At trial, the Secretary called five witnesses, Investigators Puttroff, Gibbons,
and Alvarado, and two former employees of the Appellants. The district court found
their testimony to be “coherent, logical, [] consistent, and [] corroborated by the other
evidence introduced at trial.” Alvarado presented spreadsheets, which the court
found to “accurately reflect[] available information, utilize[] reasonable and
conservative assumptions, and [be] based on a reliable methodology.”

                                          -3-
       The court held that Endless Possibilities2 was a covered enterprise under
29 U.S.C. § 203(s)(1)(B) as a “preschool,” because it established curricula, employed
lesson plan coordinators, gave employees the title of “teachers,” advertised that it
provided “Reading/Math Services,” and served children averaging three years of age.
The court also found that Appellants had failed to maintain timecards for various
periods of time. No timecards were available for the time period of December 2008
through April 2009. Appellants alleged that the timecards were destroyed by an
employee through no fault of their own, but no corroboration was provided, and the
district court did not find this explanation to be credible. Various other timecards
were missing, as well. Further, the court found that the available records provided
inaccurate and conflicting accounts of pay periods and pay dates.

       Finally, the court determined that Appellants had failed to compensate overtime
at the required one-and-a-half times the hourly rate, and that Appellants also re-
categorized part of employees’ regular hourly wages into “other pay,” in order to
avoid including part of employees’ hourly wages in the calculation of one-and-a-half
times the regular hourly rate required for overtime work. The court found other
violations, including failing to pay minimum wage and providing late payments to
employees.

      Appellants challenge the district court’s determinations. First, Appellants
argue that they are either not covered by these provisions of the FLSA because they
did not qualify as a “preschool” or if the court was correct that Endless Possibilities

      2
       The district court determined that Contingent Care and Endless Possibilities
operated as joint employers, and that based on a prior summary judgment ruling,
Shields was also an “employer” under the statute. Thus, the court ruled that all
Appellants were subject to FLSA coverage.

                                         -4-
is a “preschool,” their employees are exempt from overtime pay as “teachers.”3
Second, they argue that the court erred in relying on the Secretary’s determination of
wages because of calculation errors.

                                         II.

       FLSA overtime requirements apply to enterprises identified in the FLSA and
to other enterprises with qualifying annual revenue. Certain employees are exempt
from coverage. Appellants argue that if Endless Possibilities is covered by the
FLSA’s overtime requirements on the basis that it is a “preschool,” its employees
must be exempt “teachers.” See 29 U.S.C. § 203(s)(1)(B) (“preschools” are named
entities, covered by the FLSA); 29 U.S.C. § 213(a)(1) (exempt professionals include
“any employee employed in the capacity of . . . teacher in elementary or secondary
schools”).

       Whether an enterprise’s employees fall within the FLSA’s protection is a
question of law reviewed de novo. See Reich v. Stewart, 121 F.3d 400, 404 (8th Cir.
1997). Underlying factual findings are reviewed for clear error. See id. In applying
the FLSA, “we must liberally construe it ‘to apply to the furthest reaches consistent
with congressional direction’ in fulfillment of its humanitarian and remedial
purposes.” Brennan v. Plaza Shoe Store, Inc., 522 F.2d 843, 846 (8th Cir. 1975)
(citing Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 211 (1959)).

      3
       Appellants also argue that if they do not operate a “preschool,” they cannot be
subject to overtime requirements based on gross sales because their sales do not
exceed $500,000. See 29 U.S.C. § 203(s)(1)(A)(ii) (certain enterprises with gross
annual sales exceeding $500,000 are covered). The Secretary argues that this
argument is waived. Because Contingent Care is a covered “preschool,” we do not
address either contention.

                                         -5-
       We address first Appellants’ argument that their employees are exempt teachers
because Appellants waived this argument when they failed to raise it below. See
Davidson & Schaaff, Inc. v. Liberty Nat. Fire Ins. Co., 69 F.3d 868, 869 (8th Cir.
1995). Appellants even state in their Proposed Findings of Fact and Conclusions of
Law that “one must conclude that the employees do not qualify for the teacher
exemption under section 13(a)(1) of the FLSA.” Thus, their contention on appeal is
especially undeserving of our consideration. See id., 69 F.3d at 869 (“The rule that
we will not address arguments raised for the first time on appeal . . . applies even
more forcefully when the appellant took the opposite position in the district court.”).
Appellants have waived their argument that Contingent Care’s employees are exempt
as teachers.

      The DOL’s guidance indicates that Endless Possibilities qualifies as a
“preschool.” An opinion letter by the Wage and Hour Division of the DOL states:

      [A] preschool . . . provides for the care and protection of infants or
      preschool children outside their own homes during any portion of a 24-
      hour day. The term “preschool” includes any establishment or
      institution which accepts for enrollment children of preschool age for
      purposes of providing custodial, educational, or development services
      designed to prepare the children for school in the years before they enter
      the elementary school grades. This includes day care centers, nursery
      schools, kindergartens, head start programs and any similar facility
      primarily engaged in the care and protection of preschool children.

                                         -6-
       Opinion Letter Fair Labor Standards Act (FLSA), 1999 WL 1002394, at *1.4
The Sixth and Tenth Circuits have similarly found that custodial day care centers
qualify as “preschools.” See Reich v. Miss Paula’s Day Care Center, Inc., 37 F.3d
1191, 1195 (6th Cir. 1994) (finding day care centers “provide services to children
who are not yet required to attend school, i.e., children who are still ‘pre school.’”);
United States v. Elledge, 614 F.2d 247, 250 (10th Cir. 1980) (finding that “preschool”
includes custodial care providers, in part because § 203(s)(5) also includes custodial
care centers like hospitals and other care institutions); cf. Marshall v. Rosemont, Inc.,
584 F.2d 319, 321 (9th Cir. 1978) (restricting “preschool” within the FLSA to “an
institution of some kind which is a part of the school system.”). Because the covered
enterprises listed in § 203(s)(1)(B) include both those which provide custodial care
and those which provide educational services, and because the court found that
Endless Possibilities provides educational services to children of preschool age, the
court did not err in finding that Endless Possibilities fits within the meaning of
“preschool” as used in § 203(s)(1)(B).

                                           III.

      The district court did not err in calculating damages. Under 29 U.S.C. §
211(c), “[e]very employer subject to any provision of this chapter . . . shall make,
keep and preserve such records of the persons employed by him and of the wages,

      4
        The Secretary’s opinion letters are due the weight that is justified by “the
thoroughness evident in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which give it the power
to persuade.” See Reich v. Delcorp, Inc., 3 F.3d 1181, 1186 (8th Cir. 1993) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). “[W]hile not controlling upon
the courts by reason of their authority, [the rulings, interpretations and opinions of the
Secretary] do constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance.” Id. (quoting Skidmore, 323 U.S. at
140)).

                                           -7-
hours, and other conditions and practices of employment maintained by him.”
“[W]here the employer’s records are inaccurate or inadequate and the employee
cannot offer convincing substitutes . . . [, t]he solution . . . is not to penalize the
employee by denying him any recovery on the ground that he is unable to prove the
precise extent of uncompensated work.” Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946) (superseded by statute on other grounds as stated in Carter v.
Panama Canal Co., 463 F.2d 1289, 1294 (D.C. Circ. 1972)). “In such a situation . .
. an employee has carried out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” Id. “The burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the employee’s evidence.” Id.
at 687-88. “If the employer fails to produce such evidence, the court may then award
damages to the employee, even though the result be only approximate.” Id. at 688.
“The employer cannot be heard to complain that the damages lack the exactness and
precision of measurement that would be possible had he kept records in accordance
with the requirements of § 11(c) of the Act.” Marshall v. Van Matre, 634 F.2d 1115,
1119 (8th Cir. 1980) (quoting Anderson, 328 U.S. at 688). Under such circumstances
the court “should not hesitate to award damages based on the ‘just and reasonable
inference’ from the evidence presented.” Martin v. Tony & Susan Alamo Found., 952
F.2d 1050, 1052 (8th Cir. 1992) (citing Anderson, 328 U.S. at 687). The number of
hours an employee has worked is a factual question reviewed for clear error. Stewart,
121 F.3d at 404.

      The district court’s reliance on the Secretary’s calculations and determination
of wages owed do not appear to be in error. It was not error for the court to find
Appellants’ records inadequate and inaccurate. Investigator Alvarado testified that
records were missing and conflicting. Evidence established that a number of time

                                         -8-
cards were missing. Further, the district court found that the practice of decreasing
wages in the exact amount of newly granted “other pay” resulted in Appellants
miscalculating overtime pay due. Shields testified that the “other pay” was
completely unrelated to hours worked and that an employee had destroyed the time
cards, but the district court did not find this testimony credible. None of these
determinations are unreasonable. Based on the testimony provided, it was not error
for the court to find that Appellant’s records are inadequate or inaccurate.

       Thus, all that the Secretary was required to provide was sufficient evidence
upon which the court could draw reasonable inferences. See Anderson, 328 U.S. at
687. Here, Investigator Alvarado went through the available time cards and pay stubs
and matched them to determine what hours were worked and unpaid. Investigator
Alvarado testified, and the spreadsheets and calculations reflect, that she used a
Monday-Sunday week to determine wages due, despite Appellants’ arguments, raised
for the first time in their Reply Brief that, she did not. It was not unreasonable for the
district court to find based on the records and Investigator Alvarado’s testimony that
she matched the employer’s set Monday-Sunday workweek with the employer’s set
29 day pay periods, resulting in a conservative and accurate determination of wages
owed. Further, the pay periods, as illustrated by both parties’ references to employee
Crystal Charles, appear to be matched to the corresponding hours worked. Based on
the thorough calculations and organized information provided by Investigator
Alvarado, the court was able to make just and reasonable inferences to determine the
wages owed.

       Appellants argue that they rebutted the evidence put forth by the Secretary,
such that the evidence the district court relied on cannot form the basis of reasonable
inferences. This contention is unsupported. Appellants directed the court to the same
evidence relied on by the Secretary, but offered different explanations that the district
court did not find credible. Because Appellants’ failure to keep records in accordance

                                           -9-
with 29 U.S.C. § 211(c) created any difficulty that occurred in calculating the
damages, Appellants cannot be heard to complain that the damages lack exactness
and precision. See Anderson, 328 U.S. at 688. Appellants appear to have created a
confusing system, where hours worked would coincide with pay checks sometimes
given a month later, and through which Appellants denied employees overtime by
characterizing their hourly wages as “other pay.” At each stage of these proceedings,
Appellants have raised new arguments regarding how the Secretary erred in
calculating wages due, often contradicting their own previously offered theories of
how the calculations erred.5 This case illustrates well those circumstances under
which the court “should not hesitate to award damages based on the ‘just and
reasonable inference’ from the evidence presented.” See Tony & Susan Alamo
Found., 952 F.2d at 1052 (citing Anderson, 328 U.S. at 687). The court’s
determination of hours worked, based on reasonable inferences and detailed evidence
from the Secretary, does not equate to clear error. We do not find that the district
court was unreasonable in its determination of wages and interest owed.

      5
         In their brief, Appellants argue that the Secretary did not calculate wages by
the week, but rather using the assumption of a month containing 21 working days.
A monthly approach is prohibited by the FLSA because it would permit an employer
to fail to pay overtime wages where an employee worked overtime one week, but then
part-time the next, and thus permit for lower overall pay. The Secretary credibly
explained that the 21 working day periods for regular time were not months, but 29
calendar day pay periods created by Appellants. In either case, Appellants pivot in
their Reply to assert that the Secretary did use a work-week to calculate overtime, but
that it was the wrong week. “[W]e do not generally consider issues raised for the first
time on appeal in a reply brief.” In re Wireless Tel. Fed. Cost Recovery Fees Litig.,
396 F.3d 922, 932 (8th Cir. 2005).

                                         -10-
                                       IV.

      The district court did not err in relying on the Secretary’s evidence and
calculations, nor in determining that Appellants are covered by the FLSA’s overtime
provisions. We affirm the district court’s judgment.

                      ______________________________

                                       -11-


878 F.2d 1432
Powellv.Bowen*
NO. 88-6209
United States Court of Appeals,Fifth Circuit.
JUN 23, 1989

1
Appeal From:  E.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


50 Haw. 73 (1967)
431 P.2d 296
JAMES GUY FAIRFIELD
v.
CLARA TEXEIRA MEDEIROS AND ALVIN EMORY MEDEIROS, AND EDWIN P. MURRAY, FRANK E. MIDKIFF, ATHERTON RICHARDS, RICHARD LYMAN, JR., HERBERT K. KEPPELER (Trustees under the Will and of the Estate of Bernice P. Bishop, Deceased).
No. 4457.
Supreme Court of Hawaii.
August 25, 1967.
RICHARDSON, C.J., MIZUHA, MARUMOTO, ABE AND CIRCUIT JUDGE CORBETT IN PLACE OF LEVINSON, J., DISQUALIFIED.
V. Thomas Rice for defendants-appellants.
Robert A. Franklin for plaintiff-appellee.
OPINION OF THE COURT BY MIZUHA, J.
The principal question raised by this appeal is whether there is sufficient evidence to support the imposition of a constructive trust on a leasehold estate assigned by plaintiff-appellee, James Guy Fairfield, to defendants-appellants, Clara Texeira Medeiros and Alvin Emory Medeiros.
Defendant Alvin Medeiros and plaintiff first became acquainted in 1951 or 1952 when plaintiff's construction company hired defendant Medeiros to do hauling work. For approximately four years plaintiff and defendant Alvin Medeiros had been together constantly and practically everyday. In 1954, plaintiff's construction company went into bankruptcy. In March 1955, plaintiff and his wife were divorced. The two men became even closer friends after the bankruptcy and divorce.[1]
*74 After the bankruptcy and prior to the assignment of the leasehold estate the two men engaged in two business deals. There is substantial evidence in the records to show that a close business relationship existed between the two as well as a close personal and social relationship; and that during this period plaintiff was emotionally mixed up over the bankruptcy and divorce and drinking heavily.
The leasehold was acquired by plaintiff in 1949. After the divorce in 1955, plaintiff became the sole owner of the property. Prior to the assignment to defendant Clara Medeiros on February 13, 1956, plaintiff found himself in financial trouble. Plaintiff owed Bacon & Company approximately $2,400.00 and a suit was filed. There was a federal tax lien on the leasehold property and plaintiff was behind on his mortgage payments.
It was during this period that the subject of the assignment *75 of lease came up between the plaintiff and defendant Alvin Medeiros. Plaintiff testified as follows:
"Q When was the first time you ever had any discussion with Mr. Medeiros relative to your property at Waialae-Kahala?
"A Well, I had my divorce that was bothering me, and I had this bankruptcy before that, and I had Bacon & Company on my neck, and I was back in payments on my house for a few months, and Mr. Medeiros knew all my business, and he said, `Jim, why don't you just let Clara take care of this property?' `She will take care of it for you and turn it back to you any time you wanted it.' I said, `That's the only thing I have left that's mine, and I want it for my children.' And he says, `Well, then ____' In other words, he kept after me, `Why don't you just sign it over to Clara and she will take care of it for you?'"
The actual value of the property in February 1956, was $23,000.00 At the time of the transfer, there was approximately $11,000.00 owed on a mortgage and was rented for $250.00 a month. Mortgage payments were $86.50 a month. On the same day as the assignment, both defendants assumed plaintiff's debt to Bacon & Company at the compromise figure of $1,600.00, payments to be $50.00 per month. Plaintiff paid to defendant Clara Medeiros "$1,000 to clear up arrearages." During the trial defendants abandoned the defense that the leasehold estate was a gift from plaintiff to defendants.
Plaintiff testified that although he had tried on several occasions to have the property transferred back to him, he had not been successful, and thus was forced to bring this suit to recover the leasehold property. The trial court found that plaintiff "has established fairly, substantially and clearly that the parties never intended that this be an actual sale of the property but that the property was to be turned over to the Medeiroses at a time when the plaintiff Fairfield was not at his physical best and at a time when he was suffering financial reverses," and concluded that a constructive trust should be "imposed against this property and that the defendants, Alvin Medeiros and Clara Medeiros, be declared constructive trustees; that the property be reconveyed to the plaintiff Fairfeld; ...."
"H.R.C.P., Rule 52(a) provides that `Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' The question before this court is whether we are *76 left with a definite and firm conviction that a mistake has been committed by the trial court and that the findings of the trial judge are `clearly erroneous'. Miller v. Loo, 43 Haw. 76; Lum v. Stevens, 42 Haw. 286; Hawaii Builders Supply Co. v. Kaneta, 42 Haw. 111; Lima v. Tomasa, 42 Haw. 478." Peine v. Murphy, 46 Haw. 233, 238-239, 377 P.2d 708, 712.
It is our opinion that the findings by the trial court are fully supported by the evidence which clearly and convincingly showed that a confidential relationship existed between plaintiff and defendants and a subsequent breach of confidence by defendants to sustain the trial court's decision to impose a constructive trust on the leasehold property. Meheula v. Hausten, 29 Haw. 304, 313; Jones v. Jones, 30 Haw. 565; Wery v. Pacific Trust, 33 Haw. 701; De Mello v. De Mello, 34 Haw. 922.
We have carefully considered other specifications of error and find them without merit.
Affirmed.
NOTES
[1]  Defendant Alvin Medeiros testified in answer to questions asked by his own counsel:

"Q Did you ever become a personal or social acquaintance of Mr. Fairfield?
"A Yes, I did.
"Q And when was that?
"A Well, I used to get along with Fairfield since I started working with Fairfield Construction right up to the present time of 1962.
"Q Was there any particular time when you developed any close friendly personal relationship socially aside from business?
"A Well, I took care of him. In 1955 when he got his divorce Jim called me and told me that he needed help ...
* * * * *
"Q Go ahead. You say at the time of the divorce ____?
"A Jim called me one day at my office and told me that he had to move out so I went down and found a place for him to stay. That happened in the latter part of 1955. I found a place for him to stay. I found an apartment up at Pensacola Street. Moved all his furniture there and all his clothing and stuff that he had, his belongings, and from that time on helped him in every way that I could.
"Q Well, was he having any problems at that time?
"A Yes, Jim was all mixed up; he was getting a divorce; he had somebody else's obligations plus the bankruptcy, and all of this stuff that he was having, so I tried to help him as much as I can, and I think I did.
"Q What did you do to help him, just generally?
"A Well, we used to take him for breakfast, going down and taking him for dinner, and in any other way that he needed help.
"Q What was the reason for feeding him?
"A Well, Jim was in a position that he was all mixed up, and he was starting to drink a lot. I encouraged Jim to lay off of that liquor and try to keep on my side, and I tried it and kept on trying and kept on trying but he wouldn't listen, so I still gave him another chance."


390 F.Supp. 1130 (1975)
Elliot POSTOW and Joan L. Postow, Plaintiffs,
v.
ORIENTAL BUILDING ASSOCIATION, Defendant.
Civ. A. No. 2017-73.
United States District Court, District of Columbia.
March 14, 1975.
*1131 Benny L. Kass, Washington, D.C., for plaintiffs.
Thomas S. Jackson, Washington, D. C., for defendant.

MEMORANDUM AND ORDER
WILLIAM B. JONES, District Judge.
This action involves purported violations of the Consumer Credit Protection Act (hereinafter "Act"), 15 U.S.C. § 1601 et seq., and Regulation Z,[1] in connection with the financing of real property. In essence, the complaint alleges that defendant wrongfully failed to disclose the cost of the owner's title insurance which it required as a condition of issuing a mortgage loan and, furthermore, that defendant wrongfully failed to make timely Truth in Lending disclosures. The matter is presently before the Court on defendant's motion for summary judgment and plaintiffs' motion and application for class action determination.
In August, 1972, plaintiffs entered into a sales contract to purchase a house in Rockville, Maryland. This contract was contingent upon plaintiffs obtaining a first deed of trust purchase money mortgage. On or about September 19, 1972, defendant, by means of a "Commitment Letter," approved plaintiffs' application for a loan. This letter set forth, inter alia, the following terms and conditions. Defendant agreed to lend plaintiffs the principal amount of $27,300 at 7% interest secured by a first deed of trust on the property. A mortgagee's title insurance policy issued by a title insurance company acceptable to the defendant was required. Furthermore, the "commitment and consummation *1132 of the loan transaction" was made contingent upon plaintiffs paying the principal in cash for the security property at the time of settlement. Finally, plaintiffs were required to pay a "stand-by fee" of $305.00 which would be forfeited if the loan was not consummated within the time parameters set forth in the agreement (November 6, 1972 to January 26, 1973). On September 26, 1972, plaintiffs acknowledged receipt of a copy of the commitment letter, accepted its terms and conditions, agreed, acknowledged and affirmed that the agreement was executed by them prior to the execution of the contract of indebtedness, and remitted the $305.00 stand-by fee. Plaintiffs' acceptance and remittance were received by defendant on September 28, 1972.
On November 8, 1972, approximately one hour prior to the actual settlement proceeding, plaintiffs met with a representative of defendant. At that time, defendant provided plaintiffs with a Truth in Lending disclosure statement which indicated an annual percentage rate of 7% per annum and a charge of $194.50 for title insurance premiums which was included in the amount financed but not in the "finance charge." It was at this time that plaintiffs were informed, allegedly for the first time, that defendant would require them to purchase owner's title insurance as a condition of closing the loan. Plaintiffs expressed a desire to forego this coverage but defendant's representative insisted that it was required by defendant. Plaintiffs therefore, after consulting with their counsel, purchased the additional coverage, indicating on the "Notice to Purchaser of Right to Obtain Owner's Title Insurance Policy"[2] that it was desired "insofar as it [is] required by the lender, Oriental Building Association." Plaintiffs' Exhibit F to the Complaint; Affidavit of Wendell B. Tascher, President of defendant Oriental Building Association, dated September 10, 1974. Settlement was subsequently effected at the offices of District-Realty Title Insurance Corporation in the District of Columbia.
Section 106(e) of the Act, 15 U.S.C. § 1605(e), provides:
The following items, when charged in connection with any extension of credit secured by an interest in real property, shall not be included in the computation of the finance charge with respect to that transaction:
(1) Fees or premiums for title examination, title insurance or similar purposes.
*   *   *   *   *   *
Section 226.4(e) of Regulation Z additionally requires that the charges be "bona fide, reasonable in amount, and not for purpose of circumvention or evasion of this part." 12 C.F.R. § 226.4(e) (1974). Count I of the complaint alleges that the references to "title insurance" relate solely to mortgagee's, not owner's, title insurance and, accordingly, that defendant wrongfully failed to disclose the premium cost as part of the finance charge. In addition, this count of the complaint alleges that defendant, in requiring plaintiffs to purchase owner's title insurance, violated Maryland law, Ann.Code Md. Article 48A, § 486-1, which requires certain disclosures with respect to title insurance, and § 228(a) and (b), which proscribes "tie-in" arrangements between lenders and insurers. Thus, it is alleged that the insurance premiums were not "bona fide" and did not, therefore, fall within the exclusionary provision of 12 C.F.R. § 226.4(e) (1974). Count II of the complaint relates to the timing of the required disclosures.
Both counts allege violations of § 129 of the Act, 15 U.S.C. § 1639, and the regulations promulgated pursuant thereto. Compensatory as well as injunctive relief is sought.

*1133 A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

1. COUNT I OF THE COMPLAINT
Section 106(e) of the Act, 15 U.S.C. § 1605(e), excludes fees or premiums for title insurance from the computation of a finance charge in connection with any extention of credit secured by an interest in real property. It is plaintiffs' first allegation in Count I of the complaint that this exclusion should be construed to relate solely to mortgagee's title insurance and not to owner's title insurance. Plaintiffs have failed to direct the Court's attention to any specific language in the Act, the Act's legislative history, or Regulation Z which supports such a narrow, restrictive interpretation. The Court's own investigation has likewise failed to disclose evidence supportive of such a construction.
In Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944), reh'g denied, 323 U.S. 809, 65 S.Ct. 27, 89 L.Ed. 645 (1944), the Supreme Court was called upon to construe a portion of the Fair Labor Standards Act exempting certain agricultural laborers within "the area of production" from the provisions of that Act. The action of the Administrator of the Wage and Hour Bureau, Department of Labor, which purported not only to designate territorial bounds for purposes of exemption but also to except establishments from such exemption according to the number of workers employed, was challenged. In overruling the Administrator's interpretation, the Court, per Frankfurter, J., stated:
For the ultimate question is what has Congress commanded, when it has given no clue to its intentions except familiar English words and no hint by the draftsmen of the words that they meant to use them in any but an ordinary sense. The idea which is now sought to be read into the grant by Congress to the Administrator to define `the area of production' beyond the plain geographic implications of that phrase is not so complicated nor is English speech so poor that words were not easily available to express the idea or at least to suggest it. After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.
Id. 322 U.S. at 617-618, 64 S.Ct. at 1221. That language, while obviously written in a different factual context, is nevertheless relevant here. "Title insurance," as it is generally understood, does not take on such a restrictive connotation as plaintiffs urge. It has been defined as:
Insurance against loss or damage resulting from defects or failure of title to a particular parcel of realty, or from the enforcement of liens existing against it at the time of the insurance. This form of insurance is taken out by a purchaser of property or one loaning money on a mortgage. . . .
Black's Law Dictionary 944 (4th ed. 1968); see also Webster's Third New International Dictionary 2400 (3d ed. 1963) (no distinction made between mortgagee's and owner's title insurance). The term "title insurance" is not so complicated "nor is English speech so poor that words were not easily available to express the idea [plaintiffs assert] or at least to suggest it." Addison v. Holly Hill Fruit Products, Inc., supra. Accordingly, defendant is entitled to summary judgment and Count I of the complaint shall be dismissed insofar as it alleges liability grounded upon a construction of "title insurance" which restricts the meaning of that phrase solely to mortgagee's title insurance.
The second theory of the complaint's first count also relates to the Act's exclusion of title fees or premiums from the computation of a finance charge in connection with any extension of credit secured by an interest in real property. This second theory is predicated upon the added requirement of *1134 Regulation Z that the charges, to be excludable, must be "bona fide, reasonable in amount, and not for purpose of circumvention or evasion of this part." 12 C.F.R. § 226.4(e) (1974). In their complaint, plaintiffs allege that the charges for title insurance were not bona fide because they were imposed in violation of Maryland law. Plaintiffs, however, have subsequently failed to substantiate in any manner these allegations of unlawful conduct. To the contrary, plaintiffs' own Exhibit F, attached to the complaint and entitled "Notice To Purchaser of Right to Obtain Owner's Title Insurance Policy," which was executed by plaintiffs at settlement on November 8, 1972, demonstrates compliance with Ann.Code Md. Art. 48A, § 486-1. With respect to the alleged violation of Ann. Code Md. Art. 48A, § 228(a) and (b), it is the uncontroverted sworn statement of the President of defendant that:
7. At no time did Oriental, its agents, or employees, require as a condition of making the first Deed of Trust loan to plaintiffs that they purchase title insurance from District-Realty Title Insurance Corporation, or any other given agent, broker or insurer, as proscribed by Article 486-1(a) [sic] of the Annotated Code of Maryland.
8. At no time did Oriental, its agents, or employees, solicit the purchase by plaintiffs of title insurance from any particular agent or broker as proscribed by Article 486-1(b) [sic] of the Annotated Code of Maryland.
9. At no time did Oriental, its agents, or employees, receive, directly or indirectly, any share of the insurance premiums paid by plaintiffs to District-Realty Title Insurance Corporation, or any form of inducement for referral.
Affidavit of Wendell B. Tascher, President of defendant Oriental Building Association, dated September 10, 1974, at 3. Plaintiffs apparently concede that no proscribed relationship existed between defendant and the District-Realty Title Insurance Corporation, but argue that, as a practical matter, disclosure of the added requirement of owner's title insurance on the date of settlement de facto required the borrowers to purchase that policy from District-Realty in violation of Maryland law. Plaintiffs again have submitted no evidence to substantiate this assertion. More importantly, the pertinent Maryland statutes require certain disclosures, which were made here, and proscribe certain relationships, which did not exist here. They do not proscribe the disclosure of a requirement of owner's title insurance on the date of settlement.
Without amendment to their complaint, plaintiffs have argued in subsequent pleadings that the charge for owner's title insurance was not bona fide for other reasons: (1) the loan commitment did not require owner's title insurance; (2) the requirement was only disclosed on the date of settlement, thereby preventing the borrowers from comparing the costs of credit from other institutions in derogation of the express public policy of the Truth in Lending Act;[3] (3) the lender did not benefit from the requirement; (4) defendant, to the best of counsel for plaintiffs' knowledge, is the only local lender which requires borrowers to purchase owner's title insurance. Even assuming arguendo that these assertions are all true, none individually, nor all collectively, establish that the charges for owner's title insurance were not bona fide. They simply do not approach that level of conduct which constitutes bad faith, fraud or deceit.[4] The Court thus concludes that the charges for owner's title insurance herein may not be characterized as "non bona fide" in character and that defendant, therefore, is entitled to summary *1135 judgment with respect to Count I of the complaint in its entirety.

2. COUNT II OF THE COMPLAINT
Count II of the complaint challenges the timeliness of the Truth in Lending disclosures. Section 129(b) of the Act, 15 U.S.C. § 1639(b), prescribes:
Except as otherwise provided in this part, the disclosures required by subsection (a) of this section shall be made before the credit is extended, and may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor.
Regulation Z requires that disclosure be made "before the transaction is consummated." 12 C.F.R. § 226.8(a) (1974). It further provides:
A transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.
12 C.F.R. § 226.2(cc) (1974). Disclosure, therefore, must be made at a time prior to the existence of a contractual relationship between the borrower and lender. Bissette v. Colonial Mortgage Corp. of D. C., 155 U.S.App.D.C. 360, 477 F.2d 1245 (1973). Plaintiffs and defendant are in agreement that the law of the District of Columbia applies in determining whether a contractual relationship arose. They further agree, or at least defendant does not dispute, that plaintiffs' acceptance on September 26, 1972 of the offer extended in defendant's commitment letter created a binding contractual relationship between the parties.[5] Likewise, it is undisputed that full Truth in Lending disclosures were not made until November 8, 1972. Defendant argues, however, that plaintiffs are not entitled to judgment for two reasons. First, it contends that the words "contractual relationship" as used in 12 C.F.R. § 226.2(cc) (1974) refer to the contractual relationship of indebtedness and not to the contractual relationship arising from a commitment to make a loan. Second, defendant maintains that the violation, if there was one, was not continuing in nature and, therefore, that Count II is barred by the one year statute of limitations imposed by Section 130(e) of the Act, 15 U.S.C. § 1640(e).
A close reading of the Court of Appeals decision in Bissette v. Colonial Mortgage Corp. of D.C., supra, is sufficient to dispose of defendant's first argument. The factual pattern arising there was remarkably similar to that confronting the Court here:
In June of 1970 Mr. and Mrs. Calvin Bissette signed an agreement to purchase a house from the Ardon Corporation, contingent on procurement of adequate financing. On 9 September 1970 they met with an officer of Colonial Mortgage for the purpose of discussing the necessary loan. At that time they filled out an application for FHA insurance. On 23 November 1970 Colonial Mortgage notified the Bissettes that FHA had issued a firm commitment to insure suitable financing. Whether at that time Colonial Mortgage committed itself to issue the loan is hotly debated and was not resolved by the District Court's disposition of the case. After entering into a pre-possession agreement with Ardon, the Bissettes moved into the house on 2 December 1970. Finally, on 23 December 1970, `closing' or final settlement took place. At that time full Truth in Lending Act *1136 disclosures were made and the mortgage instruments were executed. (Emphasis in original.)
Id. at 361, 477 F.2d at 1246. Defendant argues that support for its argument may be found in the Court's observation that the Federal Reserve Board was amending Regulation Z to require disclosure not later than 10 days prior to the date on which the customer executes the note or other evidence of indebtedness.[6] Defendant contends that the Court then reasoned that the very need for the amendment implied that disclosure was not required earlier. The Court's reasoning in this regard, however, contained a very important qualifier: "Of course, the very necessity for a proposed `amendment' implies that the Board feels no disclosure is required prior to the date of closing (or an earlier contract) under current law." (emphasis added). Id., 155 U.S.App.D.C. at 362, 477 F.2d at 1247. Defendant apparently characterizes as dictum the Court's reference to "an earlier contract." The Court's final holding refutes any such characterization:
We hold that the applicable and binding regulations merely required disclosure at any time prior to the existence of a contractual relationship between borrower and lender. Since the District Court made no finding on the essential issue of when such a contract arose, we must remand for that determination and for further proceedings consistent with this opinion.
Id. at 363, 477 F.2d at 1248. A reading of the statement of facts recited above leads to the inescapable conclusion that the Court's later reference to "the essential issue" related to the question of whether Colonial Mortgage committed itself to issue the loan, a question which had been "hotly debated" before, but left unresolved by, the District Court. Thus, it clearly appears that the Court of Appeals in its controlling Bissette opinion deemed disclosure necessary prior to the creation of the contractual relationship arising from the commitment to make a loan[7] and not merely that relationship *1137 arising from the contract of indebtedness.[8]
Having established that the Truth in Lending disclosures were required prior to the September 26, 1972 creation of a contractual relationship between the parties, the question remains whether this action, instituted on November 6, 1973, is barred by the Act's one year statute of limitations.[9] This, in turn, requires a determination of whether defendant's failure to render the required disclosures was a singular misdeed occurring on September 26, 1972, or, to the contrary, was a continuing omission and a continuing violation until November 8, 1972, when the credit was extended.
The Act's language does not disclose exactly when a violation is deemed to have occurred and legislative history is not helpful. Few reported cases have dealt with the question of whether a Truth in Lending violation is continuing in nature. One, Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (E. D.N.Y.1973), involved an action against a retail furniture chain store in which the creation of the contractual relationship between the parties occurred simultaneously with the extension of credit. There, the court recognized the existence of authority in support of the continuing violation theory of the statute of limitations relating to certain substantive classes of wrongs[10] but distinguished those cases from the one before it on the basis of a lack of any showing "that defendant continually reaped illegal benefits, or that plaintiff continually sustained injuries during the entire period covered by the contract, resulting from the failure to make the required disclosures." Id. at 107. Consequently, the Court concluded that, without some Congressional intent to the contrary, it should not increase the defendant's liability beyond the one year from the date of the execution of the contract. Another case, Stevens v. Rock Springs National Bank, 497 F.2d 307 (10th Cir. 1974), involved an action brought more than one year after the execution of a purchase agreement, promissory note and security agreement made in connection with the purchase of a mobile home. In this instance the Tenth Circuit concluded:
. . . we . . . agree generally with the proposition that violation of the disclosure requirements, with the possible exception of those respecting the limited right of rescission under 15 U.S.C. § 1635, occurs at a specific time from which the statute will then run. Thus it does not necessarily become a continuing failure or breach.
Id. at 309. Again, however, there existed no time interval between the creation of the contractual relationship between the parties and the extension of credit. *1138 Several other cases not involving mortgages secured by an interest in real property or a gap period between the contracting for and the extension of credit have barred without discussion of the continuing violation theory claims arising out of contracts which were executed more than one year prior to the commencement of the action. See e.g., Ben v. General Motors Acceptance Corp., 374 F.Supp. 1199 (D.Colo.1974) (action alleging violations of Truth in Lending Act with respect to physical damage insurance required in connection with purchase of automobile brought one year and nine days after final renewal of policy); Alpert v. U. S. Industries, Inc., 59 F.R.D. 491 (C.D.Cal.1973) (claims arising out of execution of contracts for membership in health spa).
In Wachtel v. West, 344 F.Supp. 680, 681 (E.D.Tenn.1972), aff'd 476 F.2d 1062 (6th Cir. 1973), cert. denied. 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973), a case involving the alleged non-disclosure of credit terms in relation to a loan secured by a second mortgage on the plaintiffs' residence, the trial court found the Act to "contemplate that `a violation' occurs at the moment a loan transaction is consummated; accordingly that the limitation of 15 U.S.C. § 1640(e) commences to run at that moment." On appeal, the Sixth Circuit framed the issue:
The narrow question presented on appeal is whether a violation of the duty to disclose information to a borrower occurs at the time such disclosure is first required to be made, or whether it is a continuing violation until such time as the disclosure is actually made.
Id., 476 F.2d at 1063. It then affirmed, holding:
It thus appears that a credit transaction which requires disclosures under the Act is completed when the lender and borrower contract for extension of the credit. The disclosures must be made sometime before this event occurs. If the disclosures are not made, this violation of the Act occurs, at the latest, when the parties perform their contract. The provisions with respect to the right of recission seem to contemplate a continuing violation when the disclosures are not made, but such is not the case when damages are sought. (emphasis added).
476 F.2d at 1065. Plaintiffs have seized upon this seeming recognition of a limited, continuing violation (between the times of execution and performance) as supportive of their position that the Count II violation herein continued until November 8, 1972. Their heavy reliance is misplaced, however, as it does not appear that a gap period between execution and performance existed in Wachtel. The Sixth Circuit's discussion, therefore, appears to be no more than dictum. Other statute of limitation cases involving loans secured by an interest in real property likewise have been brought more than one year after the extension of credit. See, e. g., Chevalier v. Baird Savings Assoc., 371 F.Supp. 1282 (E.D.Pa.1974) (absent showing of fraud, action barred when brought more than four years after mortgage agreement executed); Munn v. American General Investment Corp., 364 F.Supp. 110 (S.D.Tex.1973) (Action barred when brought sixteen months after consummation of loan secured by deed of trust on real property); Gillis v. Fisher Hardware Co., 289 S.2d 451 (Fla.App.1974) (counterclaim barred where asserted more than twenty-one months after contractual agreement entered into and mortgage covering appellants' home executed); Reyes v. Carver Federal Sav. & Loan Ass'n., 74 Misc.2d 323, 344 N.Y.S. 2d 501 (1973) (action by house purchasers barred where brought approximately twenty-nine months after assumption of loan).
It thus appears that no reported case has considered the meaning of the statute of limitations provision of the Act as applied to the circumstances here where the action was instituted more than one year after execution of the contract to make a loan but less than *1139 one year after the extension of credit. A review of cases recognizing the continuing violation theory of the statute of limitations as related to other substantive classes of wrongs, supra n. 10, suggests several relevant factors which should be considered in determining whether defendant's conduct constituted a continuing violation, thereby barring application of the Act's statute of limitations. With respect to the defendant, was its misconduct in the nature of a specific, singular misdeed or, in the alternative, could it more aptly be characterized as an ongoing, improper relationship existing throughout the period between the execution of the contract and the extension of credit? If the latter characterization is more accurate, did that relationship constitute a prolonged and continuing invasion of the rights of the borrowers? See Baker v. F & F Investment, supra, 420 F.2d at 1200. From plaintiffs' point of view, did defendant's misconduct inflict upon them a continuing and accumulating harm during the ensuing forty-three days or was their injury, if suffered at all, incurred at one specific point in time? See Hanover Shoe, Inc. v. United Shoe Mach. Corp., supra, 392 U.S. at 502 n. 15, 88 S.Ct. 2224; Schokbeton Products Corp. v. Exposaic Indus., Inc., supra, 308 F.Supp. at 1367-1368. A final point requires consideration. While legislative purpose may not be substituted for the plain language of the statute and regulations, it may be usefully employed where, as here, a portion of the statute is ambiguous and its import unclear. Cf. Bissette v. Colonial Mortgage Corp. of D. C., supra. Section 102 of the Act, 15 U.S.C. § 1601, declares that purpose to be the assurance of "a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit."
In light of the Act's intended purpose, the Court is of the opinion that defendant's misconduct may best be characterized as an improper relationship which continually, from execution of the contract to make a loan to performance thereof, deprived plaintiffs of their statutory right to know the credit terms of their loan. While specific harm caused by ignorance of the credit terms may have been suffered by plaintiffs when they executed the contract on September 26, 1972, they continued to suffer from an inability to readily compare various credit terms and avoid the uninformed use of credit throughout the ensuing period of time. Defendant's nondisclosure, therefore, constituted a continuing violation which existed until credit was extended on November 8, 1972. Plaintiffs' action was instituted on November 6, 1973, within one year from the date of the occurrence of the violation. It follows that Count II of the complaint is not barred by Section 130(e) of the Act, 15 U.S.C. § 1640(e), and that defendant's motion for summary judgment with respect thereto must be denied.[11]

B. PLAINTIFFS' MOTION AND APPLICATION FOR CLASS ACTION DETERMINATION
Pursuant to Rule 23, Fed.R.Civ.P., plaintiffs have moved that the Court determine that this action be maintained as a class action and that the class be determined to be all persons who have received loans from the defendant and who have entered into contractual relations with the defendant in the nature of a first deed of trust on their property since July 1, 1969, and within one year last passed from the institution of this action. Plaintiffs have also proposed that notice pursuant to Rule 23(c)(2), Fed.R.Civ.P., be given individually by certified mail from, and at the expense of, defendant to each member of the class within sixty (60) days from the *1140 date that the membership of the class is ascertained.
P.L. No. 93-495, 88 Stat. 1500 (1974), contains certain amendments to Section 130 of the Act with respect to class actions. Specifically, section 408, in pertinent part, provides:
(a) Section 130(a) of the Truth in Lending Act (15 U.S.C. 1640(a)) is amended to read as follows:
"(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this chapter or chapter 4 of this title with respect to any person is liable to such person in an amount equal to the sum of
"(1) any actual damage sustained by such person as a result of the failure;
"(2) (A) in the case of an individual action twice the amount of any finance charge in connection with the transactions, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; or
"(B) in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery in such action shall not be more than the lesser of $100,000 or 1 per centum of the net worth of the creditor; and
"(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court.
In determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor's failure of compliance was intentional."
*   *   *   *   *   *
(e) The amendments made by sections 406, 407, and 408 shall apply in determining the liability of any person under chapter 2 or 4 of the Truth in Lending Act, unless prior to the date of enactment of this Act such liability has been determined by final judgment of a court of competent jurisdiction and no further review of such judgment may be had by appeal or otherwise.
Section 408 represents a legislative response to those judicial decisions denying the availability of class actions in Truth in Lending cases.[12] At the same time, it places an aggregate limitation on a creditor's class action liability for violations not involving actual damages, thereby mitigating the potential for enormously large recoveries that led several courts to deny class action treatment.[13]
As defendant notes at page 2 of its Reply to Supplemental Memorandum in Support of Plaintiffs' Application for Class Action Determination, section 408 "by no means requires or even recommends class action, but properly leaves such determination to the sound discretion of the courts." Exercising that discretion, the Court finds that, with respect to Count II of the complaint, it appears at this time that (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of both law and fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately *1141 protect the interests of the class. Rule 23(a), Fed.R.Civ.P. The Court further finds, again only with respect to Count II of the complaint, that the questions of both law and fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Rule 23(b)(3), Fed.R. Civ.P. This action, therefore, will be maintained as a class action with the class consisting of all persons who have received loans from defendant Oriental Building Association and who have entered into contractual relations with the defendant in the nature of a first deed of trust on their property since July 1, 1969, and within one year previous to November 6, 1973, the date on which this action was commenced. Once the class has been ascertained, the Court will entertain motions for appropriate orders concerning further procedures, including notice, to be followed.
In accordance with and for the reasons set forth in the foregoing memorandum, it is this 14th day of March, 1975,
Ordered, that the motion of defendant, Oriental Building Association for summary judgment be, and the same hereby is, granted insofar as it seeks dismissal of Count I of the complaint herein; and it is
Further ordered, that the motion of defendant Oriental Building Association, for summary judgment be, and the same hereby is, denied insofar as it seeks dismissal of Count II of the complaint herein; and it is
Further ordered, that Count II of the complaint herein be maintained as a class action and that the class is to consist of all persons who have entered into contractual relations in the nature of a first deed of trust on their property with and received loans from, defendant Oriental Building Association since November 6, 1972, and who were not provided with the disclosures required by the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and the regulations promulgated pursuant thereto, 12 C.F.R. § 226 et. seq., prior to entering into such contractual relations with defendant Oriental Building Association.
NOTES
[1]  Regulation Z, found at 12 C.F.R. § 226, et seq. (1974), was promulgated by the Federal Reserve Board pursuant to its authority and obligation to implement the Act. 15 U.S.C. § 1604; see Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973).
[2]  The execution of this document is required by Ann.Code Md. Art. 48A, § 486-1(a) and (b).
[3]  A discussion of the timing of all disclosures follows infra.
[4]  "Bona fide" is defined as "made in good faith without fraud or deceit." Webster's Third New International Dictionary 250 (3d ed. 1963).
[5]  This contract to lend money may be characterized as an "alternate" or "option" contract with the $305.00 stand-by or commitment fee distinguished from liquidated damages because its forfeiture could be accomplished without judicial action. See D. Dobbs, Handbook on the Law of Remedies 823-825 (1973). Had defendant breached this contract, plaintiffs would have been entitled to money damages or, under exceptional circumstances, specific performance. See generally 5A A. Corbin, Corbin on Contracts § 1152 (2d ed. 1964); Restatement of Contracts § 343 (1932); 11 S. Williston, Williston on Contracts § 1411 (3rd ed. 1968).
[6]  References have been made by the parties in this action to certain amendments to the Truth in Lending Act found in the recently enacted P.L. No. 93-495, 88 Stat. 1500 (1974). Section 409 of that Act, entitled "Full Statement of Closing Costs," provides:

Section 121 of the Truth in Lending Act (15 U.S.C. 1631) is amended by adding at the end thereof a new subsection as follows:
`(c) For the purpose of subsection (a), the information required under this chapter shall include a full statement of closing costs to be incurred by the consumer, which shall be presented, in accordance with the regulations of the Board
`(1) prior to the time when any down-payment is made, or
`(2) in the case of a consumer credit transaction involving real property, at the time the creditor makes a commitment with respect to the transaction.
The Board may provide by regulation that any portion of the information required to be disclosed by this section may be given in the form of estimates where the provider of such information is not in a position to know exact information.'
Unlike sections 406, 407 and 408 of that Act, which apply unless prior to the date of enactment "liability has been determined by final judgment of a court of competent jurisdiction and no further review of such judgment may be had by appeal or otherwise," id. at § 408(e), section 409 does not take effect until the expiration of one year after the date of enactment. Id. at § 416. This amendment was "basically technical" in nature and "designed to improve the administration of the Truth in Lending Act." H. Conf.Rep't No. 93-1429, 92d Cong., 2d Sess. (1974) at 37, U.S.Code Cong. and Admin. News, 1974, p. 6152.
[7]  With respect to problems arising from the indefiniteness of some required disclosures prior to closing, the Court of Appeals had this to say:

Colonial Mortgage protested that any disclosure requirement before closing would be impossible to meet because the actual terms of credit would not be settled until that time. Although we are not faced with that issue here, an absence of absolute certainty on terms appears to pose no insurmountable problems because approximations are allowable where exact amounts are unavailable at the time disclosures must be made. See 12 C.F.R. § 226.6(f).
Bissette v. Colonial Mortgage Corp. of D.C., supra at 362 n. 4, 477 F.2d at 1247 n. 4.
[8]  Defendant has cited two cases which it argues are supportive of its position. Foster v. Maryland State Savings & Loan Assoc., 369 F.Supp. 843 (D.D.C.1974); Stavrides v. Mellon National Bank & Trust Co., 353 F.Supp. 1072 (W.D.Pa.1973), aff'd, 487 F.2d 953 (3rd Cir. 1973). Both are factually distinguishable as in both cases the required disclosures were made prior to closing on the loans at issue and in neither case was an antecedent contractual relationship between the parties (based upon a commitment to make a loan or otherwise) shown to exist.
[9]  Section 130(e) of the Act, 15 U.S.C. § 1640(e), provides:

Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.
[10]  See Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (Sherman Anti-Trust Act Violations); Baker v. F & F Investment, 420 F.2d 1191 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970) (continual enforcement of an illegal contract in violation of civil rights); Katz v. N.L.R.B., 196 F.2d 411 (9th Cir. 1952) (violation of N.L.R.A.); Schokbeton Products Corp. v. Exposaic Industries, Inc., 308 F.Supp. 1366 (N.D.Ga. 1969) (Clayton Act violation); Baxter v. Curtis Industries, Inc., 201 F.Supp. 100 (N. D.Ohio 1962) (Copyright infringement).
[11]  Plaintiffs have not as yet sought partial summary judgment with respect to Count II of their complaint. Thus, while the Court perceives "no just reason for delay," it is presently precluded from expressly directing entry of judgment in favor of plaintiffs as contemplated by Rule 54(b), Fed.R.Civ.P.
[12]  For cases holding class action treatment to be either proper or improper, see, e. g., Katz v. Carte Blanche Corp., 496 F.2d 747, 763 n. 9 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 340-341 n. 13 (10th Cir. 1973).
[13]  See, e. g., Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412 (S.D.N.Y. 1972).


841 F.2d 397
Kentucky Central Lifev.Webster
NO. 87-7082
United States Court of Appeals,Eleventh Circuit.
FEB 17, 1988
Appeal From:  N.D.Ala., 651 F.Supp. 935

1
REVERSED.