MEMORANDUM DECISION and ORDER I. INTRODUCTION On January 18, 2018, named plaintiff Jeffrey Chery (“Chery”) filed this class action against defendants Conduent Education Services, LLC (“Conduent”), Access Group, Inc. (“Access Group”), and Access Funding 2015-1, LLC (“Access Funding”) (collectively “Conduent”), three entities that held or serviced Federal Family Education Loan Program (“FFELP”) loans. Chery alleged that Conduent interfered with borrowers’ rights to prepay or consolidate their FFELP loans in accordance with guarantees set out in the loan agreements and federal law. The complaint asserted six claims: (1) a violation of New York General Business Law §349; (2) a breach of contract; (3) a breach of the implied covenant of good faith and fair dealing; (4) a request for a declaratory judgment; (5) negligence; and (6) unjust enrichment. Dkt. No. 19. On April 24, 2018, Conduent moved to dismiss Chery’s complaint. Dkt. No. 20. That motion was denied. Chery v. Conduent Educ. Servs., LLC (“Chery I”), 2019 WL 1427140 (N.D.N.Y. Mar. 29, 2019). Thereafter, the parties engaged in some contested discovery before U.S. Magistrate Judge Christian F. Hummel. Dkt. No. 60; Chery v. Conduent Educ. Servs., LLC (“Chery II”), 2020 WL 4783167 (N.D.N.Y. Aug. 18, 2020) (Hummel, M.J.). On January 15, 2021, Chery moved under Federal Rule of Civil Procedure (“Rule”) 23 to certify a class of student loan borrowers whose right to prepay their FFELP loans was thwarted because Conduent failed to provide them with a timely Loan Verification Certificate (“LVC”). Dkt. No. 79. On May 5, 2021, Chery’s motion for class certification was granted over Conduent’s opposition. Chery v. Conduent Educ. Servs., LLC (“Chery III”), 2021 WL 1791756 (N.D.N.Y.). The Court appointed Chery as representative and certified the following Class: All student loan borrowers who submitted an application to consolidate one or more FFELP Loans into a Direct Consolidated Loan between January 18, 2012, and the date of the Order certifying the Class, for which Defendants failed to provide an LVC within ten days of receiving the request therefor. Chery III, 2021 WL 1791756, at *3. Conduent sought leave to take an immediate1 appeal, but was denied permission by the U.S. Court of Appeals for the Second Circuit in a mandate issued on July 26, 2021. Dkt. No. 87. On August 13, 2021, the parties cross-moved under Rule 56 for summary judgment. Chery’s motion seeks a judgment in favor of the Class on the General Business Law §349 (“Section 349″) claim. Dkt. No. 91. Conduent, on the other hand, seeks a judgment dismissing the class action in its entirety. Dkt. No. 92. Conduent has also moved to preclude Chery’s expert on damages. Dkt. No. 93. These motions have been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND Each Class member took out one or more FFELP loans. Pl.’s Facts, Dkt. No. 91-2 2. Although some of these loans were eventually transferred to a different loan servicer, it is undisputed that Conduent serviced each Class members’ loan for at least some portion of time between January 18, 2012, and May 5, 2021 (the “Class period”).2 Id. 3. Each loan included a Master Promissory Note (“MPN”). Id. 4. And each Class member received a form disclosure statement (“Disclosure Statement”).3 Id. The MPN and Disclosure Statement were materially the same for all members of the Class. Pl.’s Facts 5. As relevant here, these documents provided that: (a) a borrower may prepay all or any part of the unpaid balance on their loans at any time without penalty; (b) the loan is subject to the Higher Education Act of 1965, as amended (20 U.S.C. §1070, et seq.), and applicable U.S. Department of Education regulations; and (c) repayment obligations are interpreted according to Federal Law (20 U.S.C. §1071 to 1087-4) and Regulations (34 C.F.R. §682), applicable state law and regulations governing the Federal Family Education Loan Program and the terms of the MPN. Id. 6. Each Class member sought to either pay off their loans or to consolidate them into a federal Direct Consolidation Loan. Pl.’s Facts 25. When a borrower applies for consolidation under that particular loan program, the Secretary of Education sends the borrower’s current servicer a request for an LVC. 34 C.F.R. §685.220(f)(1)(i); Defs.’ Facts
15-16 (explaining that four companies are authorized to service Direct Loans). The LVC provides information that is necessary to complete the loan consolidation process. Pl.’s Facts 25. As relevant here, the loan servicer “must complete and return the Secretary’s request for certification of the amount owed within 10 business days of receipt” or else “provide to the Secretary a written explanation of the reasons for its inability to provide the certification.” §685.220(f)(1)(i). In January of 2019, Conduent entered into a Consent Order with the New York State Department of Financial Services (“DFS”). Id. 7. A few months later, on April 26, 2019, Conduent entered into a Consent Order with the Consumer Financial Protection Bureau (“CFPB”). Id. 8. According to the findings in the CFPB’s Consent Order, Conduent failed to return timely LVCs in at least 3,680 instances (as of 2015). Id. 9. Likewise, the DFS’s Consent Order found that “[Conduent's] failure to process LVCs caused borrowers financial harm.” Defs.’ Resp. to Pl.’s Facts 10. Both Consent Orders include language expressly preserving the rights of individual borrowers to bring actions against Conduent. Id. 11. Conduent has produced in discovery a spreadsheet (the “Class Data”) that lists “all loan packets for which Conduent received an LVC request from a different servicer and did not return an LVC within 10 business days of receiving the request.” Defs.’ Resp. to Pl.’s Facts 26. This Class Data identifies the number of borrowers in the Class, the number of student loans associated with each borrower, and details, for each loan, the: (1) dates each LVC request was received and responded to; (2) information reported on the LVC responses; (3) payment status and, if relevant, the borrower’s repayment plan before consolidation; and (4) other available information regarding consolidation. Pl.’s Facts 27. The Class Data shows that Conduent routinely failed to return timely LVCs during the Class Period. Defs.’ Resp. to Pl.’s Facts 28; see also Pl.’s Facts
