In June, six former employees of Bank of America's loan-modification department testified in court that since 2009, they had been instructed to lie to struggling homeowners, hide their financial documents, and push them into foreclosure. In the most egregious example, the employees said they were offered Target gift cards as a bonus for more foreclosures, which generated lucrative fees for the bank. The employees, who were in charge of implementing the government’s Home Affordable Modification Program (HAMP) at the bank, described the same deceptive practices across the country.
Two weeks ago, U.S. District Court Judge Rya Zobel dismissed the case, denying class-action certification to 43 homeowners in 26 states who suffered because of similar conduct. “Plaintiffs have plausibly alleged that Bank of America utterly failed to administer its HAMP modifications in a timely and efficient way,” Zobel agreed, adding that vulnerable homeowners had to wade through a “Kafkaesque bureaucracy,” and that the legal claims of missing documents, arbitrary denials, and deliberate misinformation “may well be meritorious.” But she would not grant class-action status because of differences in the individual cases. Homeowners are now free to pursue cases on their own, but the advantage of class-action suits is that they put expensive and burdensome litigation within reach for victims; if these homeowners had the money to sue powerful banks, they probably wouldn’t have needed a loan modification in the first place.
A decade ago, homeowners may not have faced the same hurdles in litigation. But a more stringent test for class-action certification, formed by precedents reaching all the way to the Supreme Court, has become another tool for large corporations to resist accountability. Class-action suits can have a societal benefit, exposing systemic wrongdoing and bringing an end to it. But if nobody can acquire class-action status, the courthouse doors have been effectively shut to a large number of Americans.
Without class actions, individuals face the hurdle of asymmetrical legal warfare, pitting a resource-constrained victim against a deep-pocketed corporation. And because individual damages are far lower than in a case affecting thousands or millions of people, it becomes difficult to find a lawyer willing to take the case. “Low-value claims mean a lot to individuals living paycheck to paycheck,” said Michelle Schwartz, an attorney at the Alliance for Justice, a progressive organization focused on the judiciary. “But banding together is the only way to get into court. A personal lawyer on a mission might take the case, but they would have to bankrupt themselves in order to do it.”
The most dramatic example of how courts have restricted class-action suits is the 2011 Supreme Court ruling, Wal-Mart v. Dukes. Led by former store-greeter Betty Dukes, 1.5 million women banded together to argue gender discrimination in pay and promotion policies at the world’s largest retailer. They pursued class-action status to sanction Wal-Mart because they could better show the reduced pay and fewer opportunities for advancement for women as a pattern and practice. “Standing on their own, you might not see the pattern, but when you see this has happened to hundreds or thousands—or in the case of Wal-Mart, 1.5 million people—you can make the case that it’s not an isolated incident,” says Schwartz.
But the Supreme Court reversed three lower-court rulings and denied class-action status in Wal-Mart v. Dukes, essentially arguing that the retailer had discriminated against so many women that they couldn’t possibly have all faced the exact same type of marginalization. Moreover, the Court set a precedent that limits class-action certification. Whereas before, class-action certification mainly hinged on whether the claims boiled down to a common question—whether gender discrimination had occurred, for example—in the Wal-Mart v. Dukes ruling, the Court said plaintiffs must prove whether the commonality of those claims was the most important factor in the case. That required law firms to obtain evidence, previously confined to the discovery phase, showing that the similar nature of the claims was the most relevant factor in the case. This adds to the expense of the class action at the outset, and heightens the burden on the plaintiffs in order to get certification for a class-action suit.
This has led to predictable consequences. Circuit Courts of Appeal have followed the Wal-Mart precedent, denying class-action status in multiple cases. Class actions involving securities law hit a 14-year low in 2012, and accounting class actions last year were nearly cut in half. In 2012, employers settled fewer class-action discrimination suits than at any time over the past decade, and the top ten settlements of the year totaled $48.65 million, compared with $346.4 million in 2010, before Wal-Mart. Meanwhile, the Wal-Mart women started pursuing claims 12 years ago, and none of them have had their day in court yet.
In the Bank of America case, Judge Zobel determined that individual borrowers had to jump through so many hoops in the loan-modification process—certifying they lived in the residence and could not afford their monthly payments, documenting their income, making required trial payments, and potentially seeking credit counseling—that no two cases were similar enough to grant certification as a class. In other words, the very convoluted nature of the process at Bank of America protected the company from the suit. Additionally, Judge Zobel cited discrepancies on whether certain members of the class actually made their trial payments on time, turned in the correct documents, or lived in the homes being foreclosed upon, arguing that these inconsistencies would have to be litigated individually. But that grants tremendous discretion to the bank to simply muddy up the records (which they are in fact accused of doing) and evade class action on the larger question of denying eligible borrowers a loan modification. In a tragicomic example, Bank of America claimed that one plaintiff, Aissatou Balde, did not seek credit counseling when required; Balde claims that she never obtained credit counseling because the phone number Bank of America gave to her for their credit counselor was faulty.
While the judge cited the proliferation of mortgage-related cases working through courts to argue that “individual plaintiffs are normally well-motivated to bring any claims they might have in order to save their homes,” the reality is that almost all of these plaintiffs don’t have the funds to pursue a case against Bank of America on their own.
Zobel cited the Wal-Mart case near the end of her ruling to bolster her argument that “there is no commonality where plaintiffs did not suffer the same injury from the same practice.” But Wal-Mart is far from the only example of the Supreme Court limiting class-action cases. The 2011 ruling in AT&T Mobility v. Concepcion allowed companies to make their customers sign contracts forcing any complaints to go through a “mandatory arbitration” process, taking away an individual’s right to sue whether alone or in a class action. Numerous other cases have constrained class actions in recent years. “They’re creating an impenetrable fortress around corporations and the Supreme Court is helping them do it,” said Schwartz. As Elizabeth Warren noted in a speech last week at the AFL-CIO convention, a recent study found that the five conservative Justices are among the top ten most pro-corporate in the past 50 years, and that Justices Samuel Alito and John Roberts are numbers one and two. “Sooner or later, you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of big business,” Warren said.
Class-action suits are an imperfect way to get restitution for a group of individuals. The real remedy to stop homeowners from being snookered by banks is for law enforcement to start throwing executives in jail. But class actions can bring to light systematic illegal activities and can lead to legitimate changes in corporate behavior. Reforms to the tobacco industry and auto safety have come from class actions. “They’re really acting as a private Attorneys General, bringing cases on behalf of the public, and it’s often a way you can bring an end to wrongdoing,” says Schwartz of the Alliance for Justice.
Sadly, the actual attorney general has walked off the playing field when it comes to prosecuting financial fraud. In the Bank of America case, the ex-employees delivered a road map for what the company did and how they did it, even naming specific executives who directed the conduct and citing documentary evidence in the form of email communications. But it took victims attempting to certify a class-action suit, not a federal investigation, to bring these misdeeds to light. And because of the way in which big business has pushed the courts to their side, even that class action will amount to nothing.