* 153,000 minority borrowers cannot sue as group-3rd Circuit
* 2011 Supreme Court decision in Wal-Mart v Dukes cited
By Jonathan Stempel
Aug 12 In a decision that could make it harder for borrowers to pursue private litigation as a group against banks, a federal appeals court said a lawsuit accusing PNC Financial Services Group Inc of discriminating against black and Hispanic borrowers cannot proceed as a class action.
While saying its decision was not a "death knell" for other class actions, the 3rd U.S. Circuit Court of Appeals refused to revive class certification for more than 153,000 minority customers of the former National City Corp., which Pittsburgh-based PNC bought in 2008.
Monday's decision by a three-judge panel of the Philadelphia appeals court marks the latest fallout from a landmark June 2011 U.S. Supreme Court ruling, Wal-Mart Stores Inc v. Dukes, that made it harder to sue corporate defendants as a group.
"Here, as in Dukes, 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," Circuit Judge Kent Jordan wrote for the panel.
Peter Muhic, a partner at Kessler, Topaz, Meltzer & Check representing the borrowers, did not immediately respond to requests for comment.
Marcey Zwiebel, a PNC spokeswoman, declined to comment. PNC is one of the 10 largest U.S. commercial banks.
Minority borrowers contended that National City, which had been based in Cleveland, had a "discretionary pricing policy" that gave loan officers broad subjective power to tack on points, fees and other costs.
They said this caused them to pay $350 to $1,100 more per loan than similarly situated Caucasian borrowers, violating the federal Fair Housing Act and Equal Credit Opportunity Act.
NO DEATH KNELL
Without admitting wrongdoing, National City had agreed to a $7 million settlement. In July 2010, U.S. District Judge Eduardo Robreno preliminarily approved that accord and preliminarily certified a class of borrowers from 2004 to the present.
But in September 2011, citing the Wal-Mart ruling, Robreno reversed himself, saying the borrowers would likely have to show disparate impact for "each loan officer or at minimum each group of loan officers working for a specific supervisor."
Writing for the appeals court, Jordan said the case bore a "striking resemblance" to the Wal-Mart case, where the Supreme Court had refused to let as many as 1.5 million female employees sue as a group for gender bias.
Jordan said the National City borrowers, who got loans from more than 1,400 branches, did not show a corporate policy that resulted in loan discrimination nationwide, affecting "all class members in all regions and bank branches in a common way."
He also said there might have non-discriminatory grounds on which to set rates and fees, such as whether borrowers misrepresented income or assets, whether appraisals looked fair, and whether loans were part of debt consolidation plans.
The plaintiffs "have not met their burden of demonstrating that the defendant's conduct was common as to all of the class members," he wrote. "That conclusion is not, as plaintiffs imply, the death knell for all disparate impact class actions. When a challenged policy affects class members in roughly the same manner, that class can likely establish commonality."
The case is Rodriguez et al v. National City Bank et al, 3rd U.S. Circuit Court of Appeals, No. 11-8079.