Wells Fargo Bank, N.A.’s former practice of charging more for broker price opinions (BPOs) than it paid for them could lead to class liability, a federal court in California ruled last month. The lone claim approved for class certification is a doozy: one count under the federal Racketeering Influenced and Corrupt Organizations Act (RICO). That disco-era statute, seldom invoked nowadays, is being dusted off and used by plaintiffs’ lawyers as a last-ditch effort to rescue seemingly doomed class actions.
From 2002 to 2010, Wells Fargo ordered BPOs—informal appraisals that lenders demand when a residential borrower defaults—from its own internal operation, Premier Asset Services. Wells Fargo then added a $25 to $40 mark-up to the amount Premier paid to a third party broker for the raw opinions. The additional charge was not shown on borrowers’ monthly statements.
Several homeowners later sued, alleging unjust enrichment as well as violations of RICO and California’s Unfair Competition Law. The case was filed in northern California and is titled Latara Bias v. Wells Fargo & Co.
In a lengthy ruling, the court declined to permit certification for the unjust-enrichment claim (too much variation among states’ laws) or the UCL claim (California law did not apply). The court’s RICO analysis embraced the notion that a classwide misrepresentation could have occurred, and on which all borrowers could have relied, based on Wells Fargo’s omitting mark-up information from consumers’ monthly statements.
The Bias decision offers two important take-aways. First, unjust-enrichment claims based on 50 states’ laws are a thing of the past, especially in the Ninth Circuit. Second, RICO allegations can rear their ugly heads in response to accusations of omitting material information from consumer documents. Although it takes a lot more evidence to prove up a RICO claim, the relative ease with which some courts will certify a RICO class might scare some companies into settling baseless lawsuits.