Third Circuit Affirms Disparate Impact Class Certification Denial

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On August 12, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s denial of class certification to a putative class of borrowers who claimed that a bank’s policy that allegedly allowed individual brokers and loan officers to add points, fees, and credit costs to an otherwise risk-based financing rate disparately impacted minority applicants for residential mortgage loans. Rodriguez v. Nat’l City Bank, No. 11-8079, 2013 WL 4046385 (3rd Cir. Aug. 12, 2013). The district court denied class certification following the U.S. Supreme Court’s holding 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 common mode of exercising that discretion. The district court did so sua sponte notwithstanding the parties’ joint motion to approve a class settlement. On appeal, the Third Circuit held that the trial court did not overstep its role in denying the class because the parties’ voluntary settlement did not eliminate or avoid the need for a rigorous judicial analysis to ensure that Rule 23 class certification requirements are satisfied. The Third Circuit further held that, in conducting that rigorous analysis, the district court correctly applied Dukes because “the exercise of broad discretion by an untold number of unique decision-makers in the making of thousands upon thousands of individual decisions undermines the attempt to claim, on the basis of statistics alone, that the decisions are bound together by a common discriminatory mode.” As such, the court held that the borrowers failed to meet their burden of demonstrating that the alleged conduct was common to all class members and affirmed the district court’s order denying class certification.