Miller v. Countrywide Bank, N.A., 708 F.3d 704

Countrywide's loan-pricing policy priced loans via a two-step process: a par rate determined by objective factors and a subjective deviation by local agents within defined bounds.
Objective par-rate factors included market rates, borrower income, property value, loan amount, loan-to-value ratio, credit score, intended use, closing date, and location.
Subjective deviation allowed loan officers, brokers, or correspondents to adjust the rate or add fees, with compensation tied to loan profitability, within preset boundaries.
Plaintiffs allege that discretionary deviations produced minority disparities in APRs, averaging about 11.64 to 12.50 basis points compared with white borrowers.
They moved for class certification seeking a class of all African-American and Hispanic borrowers who originated residential loans through Countrywide since 2002.
The district court denied certification, applying Dukes to conclude there were no common questions of law or fact, and plaintiffs appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether commonality exists under Rule 23(a)(2).	Dukes allows common contention via a companywide policy or common mode.	Discretion within defined boundaries is not a common mode; no uniform policy shown.	Dukes forecloses commonality here.
Whether a common contentions or policy unites discretionary acts.	Countrywide's broad discretion within a policy unites claims.	Range within boundaries does not create a common mode.	No common contentions; no companywide policy linking discretionary acts.
Whether McReynolds supports class commonality.	McReynolds shows companywide policies can create commonality.	McReynolds is distinguished; no such policies here.	Even under McReynolds, plaintiffs fail to show a common mode or policy.
Whether statistical evidence alone suffices for commonality under Dukes.	Statistical disparity supports common impact.	Statistics do not substitute for a common policy or mode.	Dukes does not require rejection of statistics, but requires common policy or mode; not shown.

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (requires common contention capable of classwide resolution; not mere disparity)
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) (concept of common injury for class actions)
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (statistical evidence in disparate-impact cases)
In re Whirlpool Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409 (6th Cir. 2012) (commonality and policy considerations in multidistrict class actions)
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (companywide policies can create common contentions when policies amplify discretion)
Bolden v. Walsh Construction Co., 688 F.3d 893 (7th Cir. 2012) (policy impact on disparate outcomes; common policy absent here)