and legal rights. Given that plaintiffs’ claims are legal (though the remedy is equitable), out of an abundance of caution, I will allow Philip Morris to assert affirmative legal defenses. However, while affirmative defenses often require individual determinations, see Barnes, 161 F.3d at 143; Castano, 84 F.3d at 742-43 n. 15; Thompson, 189 F.R.D. at 556, their existence does not per se prevent class certification. In fact, “[c]ourts traditionally have been reluctant to deny class action status ... simply because affirmative defenses may be available against individual members.” Smilow, 323 F.3d at 39; see also De Giovanni v. Jani-King Intern., Inc., 262 F.R.D. 71, 76 (D.Mass.2009); New England Carpenters Health Benefits Fund v. First Databank, Inc., 244 F.R.D. 79, 87 (D.Mass. 2007) (<HOLDING>). “If, moreover, evidence later shows that an
holding that determining whether a loan was federally related under respa did not preclude class certification recognizing that mitigation of damages is an affirmative defense a party must plead and prove holding that where named plaintiff was employee of class counsel district court did not abuse its discretion by denying class certification holding that mitigation of damages is an affirmative defense that must be pleaded holding affirmative defense of mitigation did not preclude class certification