Massachusetts Federal Court Reverses Prior Certification of Class in Fair Lending Case

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On September 18, the U.S. District Court for the District of Massachusetts decertified a class of borrowers who allege that their mortgage lender violated the Equal Credit Opportunity Act and the Fair Housing Act by allowing its brokers to impose charges not related to a borrower’s creditworthiness. Barrett v. Option One Mortg. Corp., No. 08-10157, 2012 WL 4076465 (D. Mass. Sep. 18, 2012). The borrowers claim that the lender’s policy had a disparate impact on African-American borrowers who allegedly received higher rates than similar white borrowers. In March 2011, the court certified this class of borrowers, holding that the plaintiffs demonstrated commonality sufficient for class certification based on a statistical analysis comparing APRs paid by white and African-American borrowers that appeared to show slightly higher APRs for minority borrowers. Subsequent to the court’s March 2011 decision, the Supreme Court held in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) that a policy that allows local units discretion to act can only present a common question if the local units share a mode of exercising that discretion. Following the Supreme Court’s decision, the lender in this case moved to decertify the class. The court agreed with the lender that the borrowers’ statistical analysis based on aggregate data does not consider each individual broker. The court held that the borrowers in this case lack commonality because they cannot show that all of the lender’s brokers exercised discretion in the same way and granted the lenders motion to decertify the class.