Nailta Amicus Brief

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case Nos. 08-56536, 08-56538 ____________________________________ DENISE P. EDWARDS, Individually and on Behalf of All Others Similarly Situated, Plaintiff/Appellant, v. THE FIRST AMERICAN CORPORATION, and FIRST AMERICAN TITLE INSURANCE COMPANY, Defendants/Appellees. ____________________________________ _____________________________________________________________ BRIEF OF NATIONAL ASSOCIATION OF INDEPENDENT LAND TITLE AGENTS AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL _____________________________________________________________ Gregory W. Happ* Ohio Supreme Court Reg. No. 0008538 Texas Supreme Court Reg.No. 0936500 238 West Liberty Street Medina, OH 44256 Telephone (330) 723-7000 Facsimile (330) 725-8804 e-mail [email protected]

Mary Dryovage Cal. State Bar No. 112551 Law Offices of Mary Dryovage 600 Harrison Street, Suite 120, San Francisco, CA 94107 Telephone: (415) 593-0095 Fax. (415) 593-0096 e-mail: [email protected]

Attorneys for Amicus Curiae, National Association of Independent Title Agents *Counsel of record. Petition for Admission pending.

TABLE OF CONTENTS

I.

INTERESTS OF AMICUS………………………………….. 1

II.

ARGUMENT………………………………………………..... 2

III.

A.

ESTABLISHMENT OF THE TITLE INDUSTRY AND FORMS OF TITLE INSURANCE……………………… 2

B.

THE GROWTH OF THE TITLE INSURANCE INDUSTRY AND THE CONSOLIDATION OF TITLE INSURANCE UNDERWRITERS……………………. 3

C.

THE DEVELOPMENT OF “REVERSE COMPETITION” …... 4

D.

THE GROWTH OF AN ANTI-COMPETITIVE TITLE INSURANCE INDUSTRY THROUGH “BUSINESS ARRANGEMENTS”………………………….. 7

E.

THE GROWTH OF “CAPTIVE TITLE INSURANCE AGREEMENTS” -- ANOTHER REFERRAL SCHEME ……………………………………. 9

F.

AN EXAMPLE OF HOW “CAPTIVE TITLE INSURANCE AGREEMENTS” HARM CONSUMERS ……………………………………. 12

CONCLUSION……………………………………………… 15 Certificate of Compliance…………………………………… 16 FRAP 26.1 Disclosure…...…………………………………… 17 Certificate of Service………………………………………… 20

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TABLE OF AUTHORITIES CASES: Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979 (6th Cir. 2009)

11, 12

Edwards v. First American Corp., 517 F. Supp. 2d. 1199, 1203 (C.D. Cal. 2007)

11

Kahrer v. Ameriquest Mortgage Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006)

8, 11, 12

Robinson v. Fountainhead Title Group Corp., 447 F. Supp. 2d 478 (D. Md. 2006)

11

STATUTES: 12 U.S.C. § 2607 (c)(4)

7

12 U.S.C. § 2607 (a)

7

12 U.S.C. § 2607 (b)

7

OTHER AUTHORITIES: Birnbaum, Birny, Report to the California Insurance Commissioner, “An Analysis of Competition in the California Title Insurance and Escrow Industry,” December 2005

6

Jack Guttentag, “Real Estate Settlement Services Take Bite Out of Borrowers,” Inman News, September 6, 2005

5

The Pricing and Marketing of Insurance: A Report of the Department of Justice to the Task Group on Antitrust Immunities, January 1977

5

Nelson Lipshutz, The Regulatory Economics iii

of Title Insurance, Praeger Press, Westport, CT, 1994

6

Ohio State Bar Association Report, Vol. 59, No. 48, Section One, December 15, 1986, p. 1968.

14

Title Insurance Cost and Competition: Before the House Committee on Financial Services Subcommittee on Housing and Community Opportunity, 109th Cong., (2006) (testimony of J. Robert Hunter, Director of Insurance, Consumer Federation of America)

5

“Chapter XII The Title Assurance and Conveyance Industries” of Real Estate Closing Costs, RESPA, Section 14a, Volume II Settlement Performance Evaluation prepared by Peat, Marwick, Mitchell and Co. for the Department of Housing and Urban Development, October 1980

5

State of California Department of Insurance Bulletin 80-12, December 24, 1980, Subject: Insurance Code Section 12404 - Unlawful Rebates Title Insurance Advisory Committee Final Report to the State Board of Insurance, September 1986

5

INTERNET SOURCES: American Land Title Association, “Preliminary Third Quarter 2008 Market Share Family-Company Summary” at http://www.alta.org/industry/0803/Marketshare3rdQuarterfamcosummary.xls (last visited March 11, 2009)

4

American Land Title Association, Title Insurance: A Comprehensive Overview, at http://www.alta.org/about/TitleInsuranceOverview.pdf (last visited March 11, 2009)

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iv

I.

INTERESTS OF AMICUS

Amicus Curiae National Association of Independent Land Title Agents (NAILTA) is a national trade association consisting of state-licensed independent title insurance agents and state-licensed title insurance agencies, with associate membership extended to title insurance underwriters and title insurance industry stakeholders from across the United States. Amicus’ sole interest in this case is in the application of 12 U.S.C. §§ 2601, et seq. in order to promote and protect fair competition in the title insurance industry. Amicus believes that this brief will assist the Court in understanding the complexities of the title insurance industry and why anti-competitive practices such as that alleged in this case are harmful to our industry and the general public. NAILTA

is

a

non-profit,

member-supported

national

trade

organization working to protect the transparency, credibility and sanctity of the land title process. As part of that mission, NAILTA represents the interest of those industry stakeholders, both independent and affiliated alike, who have been negatively impacted by the rise of anti-competitive business practices in the title insurance industry. NAILTA works to protect the independence of the title insurance industry from its referral sources and the

Association advocates for fair competition in the industry and the removal of conflicts of interest from the real estate process. The issues presented by NAILTA are relevant to the current matter as it is clear to Amicus that the practices alleged in this case restrict competition, reduce the transparency of both the title insurance industry and the real estate process, and undermine the consumer’s choice of title insurance provider. Amicus supports reversal of two District Court Orders which denied the Appellant’s attempt at class certification due to the tremendous anticompetitive impacts employed by the Appellees on the land title insurance industry, the independent land title agents represented by Amicus NAILTA, and the title insurance consumers (i.e., homeowners, buyers and borrowers). II. A.

ARGUMENT

ESTABLISHMENT OF THE TITLE INSURANCE INDUSTRY AND FORMS OF TITLE INSURANCE In 1876 the first title insurance company was formed in Philadelphia,

Pennsylvania. This company was the first to issuance guarantees of title with specific indemnity clauses. From this early “Philadelphia System” arose the modern title insurance industry. In simplest terms, title insurance is a contract of indemnity that is designed to protect purchasers or mortgage lenders from unforeseen loss due 2

to title defects such as: liens or encumbrances upon, defects in, or the unmarketability of the title to real property for which the policy is issued. These contracts of indemnity have evolved into two types of recognized title insurance policies: (i) those policies issued to protect buyers of real estate (Owner’s Policy of Title Insurance); and (ii) those policies issued to lenders to protect the mortgage’s title, which secures the loan (Loan Policy of Title Insurance). The fundamental difference between land title insurance versus other types of casualty insurance (i.e., homeowners, automobile and commercial general liability insurance) has always been the commitment of the title insurance industry to seek “risk prevention” over “risk assumption.” The casualty insurance approach of “risk assumption” assures financial indemnity through a pooling of risks for losses arising out of an unforeseen future event such as death or accident. The title insurance approach of “risk prevention” has as its goal the elimination of risks and the prevention of losses caused by defects in title arising out of events that occurred in the past. B.

THE GROWTH OF THE TITLE INSURANCE INDUSTRY AND THE CONSOLIDATION OF TITLE INSURANCE UNDERWRITERS Prior to World War II, the growth of the title insurance industry had

been limited to local and regional title insurance underwriters. After World 3

War II the enormous demand and expansion of home ownership produced an equally expanded mortgage market which in turn fostered a corresponding growth in the demand for title insurance. Starting in the 1960’s the title insurance industry saw the emergence of national title companies which caused a decline in the local and regional title insurance underwriters. Combinations, consolidation, and mergers of title insurance underwriters in the national title insurance industry have left the industry with only four underwriter groups controlling over 92 percent of all title insurance business nationwide. 1 One of these groups includes the Appellee, First American Title Insurance Company, the nation’s second largest title insurance underwriter. This consolidation has greatly impacted competition among title insurance underwriters and has impacted the quality of the product and service being provided by the title insurance underwriters. C.

THE DEVELOPMENT OF “REVERSE COMPETITION” At least by the 1970’s, a recognized marketing trend in the title

industry developed where the providers of title insurance marketed their products not to the ultimate consumer, who either owned or was buying a

1

American Land Title Association, “Preliminary Third Quarter 2008 Market Share - Family-Company Summary” at http://www.alta.org/industry/0803/Marketshare3rdQuarterfamcosummary.xls (last visited March 11, 2009).

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home, but to third parties involved in the real estate transactions (i.e., real estate agents, mortgage brokers, lenders and developers). Marketing to these third parties for the issuance of title insurance became the dominant source of business for title insurance because of the third party’s access to the real estate transaction and that person’s general ability to refer or direct the consumer to a particular title insurance provider. The term “reverse competition” was applied to this title insurance industry marketing practice. 2 The issue of the high market consolidation in the title insurance industry caused by “reverse competition” has been well documented by numerous studies and articles. 3 The common theme in each of these studies

2

See The Pricing and Marketing of Insurance: A Report of the Department of Justice to the Task Group on Antitrust Immunities, January 1977, pages 250-274. 3

Title Insurance Cost and Competition: Before the House Committee on Financial Services Subcommittee on Housing and Community Opportunity, 109th Cong., (2006) (testimony of J. Robert Hunter, Director of Insurance, Consumer Federation of America) see also, Jack Guttentag, “Real Estate Settlement Services Take Bite Out of Borrowers,” Inman News, September 6, 2005; see also, The Pricing and Marketing of Insurance: A Report of the Department of Justice to the Task Group on Antitrust Immunities, January 1977, pages 250-274; “Chapter XII The Title Assurance and Conveyance Industries” of Real Estate Closing Costs, RESPA, Section 14a, Volume II Settlement Performance Evaluation prepared by Peat, Marwick, Mitchell and Co. for the Department of Housing and Urban Development, October 1980; State of California Department of Insurance Bulletin 80-12, December 24, 1980, Subject: Insurance Code Section 12404 - Unlawful Rebates; Title 5

and articles is the lack of competition that exists in the title insurance industry and the negative impact “reverse competition” has on title insurance underwriters, title insurance agencies, the title insurance consumers and the third-party attorneys and lending institutions involved in a real estate transaction. Due to the development and dominance of “reverse competition” in the title insurance industry, most title insurance underwriters and title insurance agencies compete with other underwriters and agencies for the attention of these third-party revenue-generating referral sources (i.e., real estate agents, mortgage brokers, lenders and developers). This competition for “referral sources” unfortunately led to widespread abuses and illegal referral activities in the title insurance industry. This, in turn, led to the enactment of the Real Estate Settlement Procedures Act of 1974, Pub. L. No. 93-533, 88 Stat. 1724 (1974) ("RESPA"), 12 U.S.C. §§ 2601, et seq. Section 8 of RESPA prohibited kickbacks and unearned fees. In relevant part, the statute states the following:

Insurance Advisory Committee Final Report to the State Board of Insurance, September 1986; Nelson Lipshutz, The Regulatory Economics of Title Insurance, Praeger Press, Westport, CT, 1994, page 5; Birnbaum, Birny, Report to the California Insurance Commissioner, “An Analysis of Competition in the California Title Insurance and Escrow Industry,” December 2005, page 57.

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(a)

Business referrals No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.

(b)

Splitting charges No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed. 4

D.

THE GROWTH OF AN ANTI-COMPETITIVE TITLE INSURANCE INDUSTRY THROUGH “BUSINESS ARRANGEMENTS” By the 1970’s the title insurance industry saw the development of

another business marketing activity involving title insurance agency business arrangements with their third-party “referral sources” (i.e. real estate brokers, real estate agents, mortgage brokers, and mortgage lenders). These business arrangements became known as “affiliated business arrangements” and “controlled business arrangements.” These “arrangements” involved the “referral source” becoming a part owner of a title insurance agency who participated directly in the profits of 4

12 U.S.C. § 2607(a)-(b).

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the agency. Often the referral source had no active participation in the agency’s business but due to the “referral” of business to the title insurance agency, of which it was a part, the referral source received a significant profit. The profit in some instances was determined from the gross income and not net profits. Questions began to be raised whether or not these “arrangements” were nothing more than a scheme to circumvent Section § 8 of RESPA. “In the years following RESPA's enactment, however, it became clear that the provision "failed to account for 'controlled business arrangements' . . . whereby an entity could provide a referral without the direct payment of a referral fee." 5 Indeed, in 1982, a House Committee Report noted that such practices could result in harm to consumers beyond an increase in the cost of settlement services: ‘[In controlled business arrangements] the advice of the person making the referral may lose its impartiality and may not be based on his professional evaluation of the quality of service provided if the referror or his associates have a financial interest in the company being recommended. . . . [Because the settlement service industry] almost exclusively rel[ies] on referrals … the growth of controlled business arrangements effectively reduce the kind of healthy competition generated by independent settlement service providers.’” 6

Edwards v. First American Corp., 517 F. Supp. 2d. 1199, 1203 (C.D. Cal. 2007). 6 Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 2009 U.S. App. Lexis 1288 (6th Cir. 2009) (citing Kahrer v. Ameriquest Mortgage Co., 418 F. Supp. 2d 748 (W.D. Pa. 2006) (citing H.R. Rep. No. 97-532, at 52 (1982) (emphasis added))). 5

8

These “affiliated business arrangements” and “controlled business arrangements” were designed to control the referral of business and by their very nature were anti-competitive.

These arrangements are currently

permitted under RESPA but only under tightly-controlled circumstances. The subject transaction between First American and Tower City is not such an arrangement. E.

THE GROWTH OF “CAPTIVE TITLE INSURANCE AGREEMENTS” -ANOTHER REFERRAL SCHEME. Similar to title insurance agencies establishing “affiliated business

arrangements” or “controlled business arrangements” to exclusively secure the “business” of a “referral source,” the title insurance industry has also seen the growth of title insurance underwriters utilizing “Captive Title Insurance Agreements” (hereafter “CTIA” or “CTIAs”) to glean market share within the title insurance industry to the exclusion of other title insurance underwriters. 7 The importance of these captive agreements to the title insurance consumer is instantly apparent considering that, in a real estate purchase or refinance, it is the title insurance agency and not the title insurance consumer involved that makes the referral to the title insurance underwriter. Birnbaum, Birny, Report to the California Insurance Commissioner, “An Analysis of Competition in the California Title Insurance and Escrow Industry,” December 2005, page 60.

7

9

A CTIA occurs when a title insurance underwriter purchases a financial interest in a previously independent title insurance agency, who may already represent multiple title insurance underwriters, and who has a significant share of a particular localized title insurance market. As part of the purchase transaction, the title insurance underwriter is referred all or substantially all of the title insurance agency’s title business to the exclusion of all other title insurance underwriters who, prior to the agreement, received referral of title business from the now “captive” title insurance agency. Prior to the acquisition of interest, the independent title insurance agent or agency had the power to exercise its independent judgment as to which title insurance underwriter was best suited for a particular real estate transaction, i.e. land purchase or refinancing.

After the acquisition of

interest, the power of any purchased title insurance agent or agency to exercise an autonomous choice of title insurance underwriter is eliminated. In most cases, it is the discerning title insurance agent who is in the best position to provide insight and advice to title insurance consumers as to the best title insurance underwriter for a particular transaction. However, CTIAs remove the choice of title insurance underwriter from competitive consideration and thereby negatively impact a title insurance consumer’s ability to meaningfully participate in his or her real estate settlement.

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A title insurance underwriter’s use of CTIAs has the same effect of “reducing competition between settlement service providers” as that of a “controlled business arrangement.” “Generally speaking, RESPA sought ‘to address Congress' concerns over "controlled business arrangements," whereby real estate settlement business is referred between two affiliated entities, which RESPA had not previously addressed. Under such circumstances, one entity is able to provide a benefit to its affiliate without the direct payment of a referral fee which … could result in harm to consumers beyond an increase in settlement charges . . . . Specifically, … the advice of the person making the referral may lose its impartiality and may not be based on his professional evaluation of the quality of service provided if the referror or his associates have a financial interest in the company being recommended. In addition, since the real estate industry is structured so that settlement service providers do not compete for a consumer's business directly, but almost exclusively rely on referrals from real estate brokers, lenders or their associates for their business, the growth of controlled business arrangements effectively reduce the kind of healthy competition generated by independent settlement service providers.’ “‘To address the negative effects on the real estate industry caused by these controlled relationships, "injury in a RESPA case can be shown by harm other than allegations of overcharges," as "the alleged § 8(a) violation presents the possibility for other harm, including a lack of impartiality in the referral and a reduction of competition between settlement service provide[r]s.’" 8 8

Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, at 987, 2009 U.S. App. Lexis 1288 (6th Cir. 2009) (citing Kahrer, supra at 754 (citing H.R. Rep. No. 97-532, at 52 (1982) (emphasis added))), (citing Robinson v. Fountainhead Title Group Corp., 447 F. Supp. 2d 478, 488-89 (D. Md. 2006).

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At issue in the present case is the selection of a title insurer once the referral is made. Upon being referred to a title insurance agency, the title insurance consumer is a captive of the title insurance agency’s choice of title underwriter.

The CTIA obscures the opportunity of a homeowner or

borrower to have a meaningful choice of a title insurance underwriter and thereby the quality of the product or service each offers. F.

AN EXAMPLE OF HOW “CAPTIVE TITLE INSURANCE AGREEMENTS” HARM CONSUMERS. CTIAs remove the necessary independence and impartiality of the

title insurance agency in the title insurance transaction. The title insurance agency’s professional evaluation of the quality of service offered to the consumer is clouded by the financial rewards of the CTIA professional. 9 This loss of professional evaluation also results in the title insurance consumer being denied a meaningful choice in which title insurance underwriting standards are to be employed for the issuance of the title insurance policy. One feature of the growing variance among title insurance underwriter standards is demonstrated by the rising indifference by title insurance underwriters to a basic industry standard of “risk avoidance.” In order to promote risk prevention, a core function of the issuance of 9

See Carter supra at 987 (citing Kahrer, 418 Fed. Supp. 2d. at 754 (quoting H.R. Rep. No. 97-532, at 52) (emphasis added). 12

title insurance has historically been a search or examination of the public land records for title defects prior to issuance of title insurance. This title searching or examining process prevents title risks by the discovery and possible removal of any title defects prior to issuance of a title insurance policy. During the title search, title companies find and fix problems with the title in 25 percent of transactions – usually unbeknownst to the title insurance consumer or lender. 10 Often it is the variance in the title insurance underwriter’s title search standards that marks the difference in the quality of the risk avoidance being performed. Unfortunately, in recent years the standards for a land title search or title examination demanded by some title insurance underwriters, prior to the issuance of title insurance, has been lessened due to the rising cost of securing title insurance market share and the necessity to compensate the referrer of the title insurance business, whether as CTIAs or other anticompetitive practices that result from reverse competition.

10

American Land Title Association, Title Insurance: A Comprehensive Overview, pg. 2 at http://www.alta.org/about/TitleInsuranceOverview.pdf (last visited March 11, 2009).

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In a cost saving measure some national title insurance underwriters require only a “current owner” search of title in residential transactions, meaning that the title abstractor/examiner is required by the title insurance underwriter to search only the current owner’s title back to the moment that owner took title, thereby omitting liens and other encumbrances that would have attached to the interest held by prior owners in title. This is in contrast to other title insurance underwriters requirements for the customary “full title search” of forty plus years beginning from the deed or “root” of the current owner’s title. Only through a “full title search” and a detailed listing of encumbrances, easements and restrictions in a policy can an owner know the status of his title prior to the issuance of the title insurance policy. 11 Title insurance consumers are often unaware of this variance in the standards of one title insurance underwriter versus another and the impact this variance has on the quality of the final title insurance product. When a title insurance agency commits itself through a CTIA to a single title insurance underwriter, it denies a meaningful and important choice of 11

Ohio State Bar Association Report, Vol. 59, No. 48, Section One, December 15, 1986, p. 1968. The Council authorized the following Comment in lieu of the OSBA Title Standard 2.2 regarding land title searches: "There is nothing in the Ohio Marketable Title Act that entitles a title examiner to rely upon a simple forty year search period. He or she must be aware of the several exemptions in the Act that are not barred by the mere passage of 40 years.”

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service to the title insurance consumer. In these cases, that choice means the difference between eliminating risk and assuming it. For unsuspecting title insurance consumers, that choice could lead to years of real estate-related litigation and uncertainty. III.

CONCLUSION

The ultimate result of the “exclusivity” generated by a CTIA is the damage and harm to the title insurance consumers who were denied a meaningful choice between the standards offered by various title insurance underwriters. Appellant clearly represents a class of consumers that was negatively impacted and damaged by the “exclusive” referral paid for by Appellee through its CTIA with Tower City Title Agency. For the foregoing reasons, the district court’s judgment should be reversed on both Orders currently subject to this Court’s review. Respectfully submitted, Gregory W. Happ* Mary Dryovage Ohio Supreme Court Reg. No. 0008538 Cal. State Bar No. 112551 Texas Supreme Court Reg.No. 0936500 Law Offices of Mary Dryovage 238 West Liberty Street 600 Harrison Street, Suite 120, Medina, OH 44256 San Francisco, CA 94107 Telephone (330) 723-7000 Telephone: (415) 593-0095 Facsimile (330) 725-8804 Fax. (415) 593-0096 e-mail [email protected] e-mail: [email protected] Attorneys for Amicus Curiae, National Association of Independent Title Agents *Counsel of record. Petition for Admission pending.

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CERTIFICATE OF COMPLIANCE 1.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 2,786 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App.P. 32 (a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman, 14-point font.

DATED: March 11, 2009

By:_/s/ Gregory W. Happ Gregory W. Happ Attorney for Amicus Curiae National Association of Independent Land Title Agents (NAILTA)

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DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION Pursuant to FRAP 26.1, amicus National Association of Independent Land Title Agents (“NAILTA”) a 501(c)(6) non-profit corporation incorporated in the Commonwealth of Pennsylvania, makes the following disclosure:

1.

NAILTA is not a publicly held corporation or other publicly held entity.

2.

NAILTA has no parent corporations.

3.

No publicly held corporation or other publicly held entity owns 10% or more of NAILTA.

4.

NAILTA is a national trade association and a list of all members are provided hereto and incorporated herein by reference.

March 11, 2009

/s/ Gregory W. Happ Gregory W. Happ Attorney at Law

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MEMBERSHIP LIST - NAILTA Brandywine 4 Building 3 Dickinson Drive Suite 204 Chadds Ford, PA 19317 Anthony L. Affatato, Sr. Frank Carnesi Chuck Rosenblum Elizabeth M. Crowe David Dwyer Allen Exelby Gregory W. Happ Karin T. Hesse Thomas F. Andres Kevin M. Hanley Kim Himmel Robert B. Holman Ian Katz Francis P. Kelly Dallys Novarina John A. Novarina Charlene M. Ostroski Linda Percoco Harvey A. Pollack Charles W. Proctor, III Maria O. Proctor Colleen Curtin Donna Grasso Carl Samon Steve Squeo James J. Squeo Virginia Squeo Clanci Moloney-Nelson Dorothy E. Tittermary Matthew H. Waylett Allison Waylett

Freehold, NJ Freehold, NJ Freehold, NJ Freehold, NJ Philadelphia, PA Parsippany, NJ Medina, OH Carnegie, PA Carnegie, PA Carnegie, PA Massillon, OH Cleveland, OH Warminster, PA Reading, PA Blue Bell, PA Blue Bell, PA Devon, PA Florham Park, NJ Wauwatosa, WI Chadds Ford, PA Chadds Ford, PA Chadds Ford, PA Chadds Ford, PA Parsippany, NJ Dublin, OH Dublin, OH Dublin, OH Dublin, OH Philadelphia, PA Hunt Valley, MD Hunt Valley, MD 18

NAILTA - Membership List (Continued) Bill Grossmiller Nelson Schwartz Lisa Myers Dave Wierzbicki Francine D’Elia Wirsching David B. Wirsching Betsy R. McCord Teresa Ganka

Hunt Valley, MD Hunt Valley, MD Hunt Valley, MD West Lawn, PA Blue Bell, PA Blue Bell, PA Dayton, OH Dayton, OH

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CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of March, 2009, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Mary Dryovage Mary Dryovage Cal. State Bar No. 112551 Law Offices of Mary Dryovage Harrison Street, Suite 120, San Francisco, CA 94107 Email: [email protected]

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