PNC Bank v. Kessler
- Respondents' Brief in Opposition (01/27/2016)
A class of borrowers sued PNC Bank over a mortgage lending scheme operated by its corporate predecessor, Community Bank of Northern Virginia. The scheme involved the bank’s payment of kickbacks to undisclosed third parties that did not provide any services to the borrower, and inaccurate disclosures of the annual percentage rate (“APR”). The district court certified a class action for the plaintiffs to hold the bank accountable under the Real Estate Settlement Procedures Act, Truth In Lending Act, Home Ownership and Equity Protection Act, and Racketeer Influenced and Corrupt Organizations Act. The court of appeals affirmed, because the claims turn on the existence of uniform practices applied to all borrowers.
PNC sought Supreme Court review, and we assisted counsel for the borrowers in opposing the petition. We argued that the uniform practices of the bank and the other participants in the scheme ensured that issues common to all class members would predominate, and we pointed out that PNC’s proposed standard would require plaintiffs to prove not only that class action treatment is appropriate but that the common issues will be resolved in their favor – an unreasonably high bar that the Supreme Court has previously rejected. In February 2016, the Court denied review.