Sixth Circuit Lends Its Voice To Chorus Of Denials Of Class Certification In Subjective Discretion Situations

In 2011, we reported on In Re Countrywide Financial Mortgage Lending Practices Litigation, No. 08-MD-1974, 2011 U.S. Dist. LEXIS 118695 (W.D. Ky. Oct. 13, 2011), a decision denying class certification of a class of mortgage borrowers. In that case, African-American and Hispanic named plaintiffs alleged that Countrywide Financial discriminated against them in granting mortgage loans by charging higher interest rates and imposing costs not assessed on non-minority borrowers. Plaintiffs asserted that a “discretionary pricing policy” allowed individual mortgage officers to make subjective decisions that had a disparate impact on minorities. Plaintiffs presented expert-generated statistical regression analyses to support their claims. In rejecting a motion to certify a class, the District Court held that this theory could not satisfy the commonality requirement of Rule 23(a), in the wake of the Supreme Court’s then-recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). You can read our initial post on that decision here.

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