Fair Lending Class Actions Following Wal-Mart v. Dukes

Nearly six months ago, in Wal-Mart v. Dukes, the U.S. Supreme Court vacated certification of a class of roughly 1.5 million current and former female employees of Wal-Mart who alleged gender discrimination in violation of Title VII. While doing so, the Court clarified the “commonality” requirement of Federal Rule of Civil Procedure 23(a)(2), holding that lower courts should only certify classes when plaintiffs produce “significant proof” that the putative class members have suffered a common injury from a common source. The Court also held that the plaintiffs could not seek individualized monetary relief under Rule 23(b)(2).

The impact of the Dukes decision has already been broadly felt. In particular, the decision has acutely affected fair lending class actions in which plaintiffs allege claims under the Equal Credit Opportunity Act (ECOA) and the Fair Housing Act (FHA)—statutes that courts have interpreted by reference to Title VII case law. This article examines the Dukes decision itself, discusses how several lower courts have recently applied the Dukes decision in fair lending class actions, and explores the degree to which Dukes has undercut the viability of fair lending class claims, especially claims based on disparate impact theory.