o

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IN FOR

THE THE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Selma S. BUYCKS-ROBERSON, on

)

behalf of herself and others

)

similarly situated,

)

)

Plaintiffs

)

vs.

) )

)

CITIBANK FEDERAL SAVINGS

)

BANK,

)

)

Defendant.

)

94 C 4094

JURY DEMANDED

JUDGE CAST!LJ.JO

MAGISh'!,ll t";'If~~;'~.:

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Plaintiff Selma S.

COMPLAINT BUYCKS-ROBERSON,

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on behalf of herself and

others similarly situated, by and through her attorneys, makes

this complaint against Defendant CITIBANK FEDERAL SAVINGS B~/~!~ ..

("CITIBANK") .

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NATURE OF THE ACTION

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1. This is a civil action brought by Selma S. Buycks-

Roberson, formerly known as Selma S. BUYCKS, on behalf of herself

and all other African-Americans who \ade hom~ loan applications'

. - ..:_._- -

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"• • . 1 0 . - '

•

to CITIBANK, and whose applications were rejected because of

their race or color, or because of the racial composition of the

neighborhood in which their property was located. This action

seeks injunctive relief and monetary damages for violations of 42

U.S.c. §§ 1981 and 1982; 42 U.S.C. § 3605 and 15 U.S.C. §

1691(a).

JURISDICTION AND VENUE 2. Jurisdiction of this Court arises under 28 U.S.C. § 1343(a)(4), 42 U.S.C. § 3613(a) (1) (A) and 15 U.S.C. § 1691e(f).

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3. Venue is proper in the Northern District of Illinois since some of the acts and transactions complained of occurred in

this district.

THE PARTIES

4. Plaintiff Selma S. BUYCKS-ROBERSON ("ROBERSON") is an

African-American citizen of the United states who resides in

Broadview, Illinois.
5. Defendant CITIBANK, is a corporation that ~fiE;i~~;.:i'~. p;t-;t~ ~~·~~a~~"..l·~~~~~.::j~~~~~im~'~~~;~tl:~~:"';~~"'~'~~~"'~~ity"

t~.~~s.~I~~ome lo'a'ns'~J'~.J

CLASS ACTIONS ALLEGATIONS

6. (a) Plaintiff is a citibank home loan applicant: she

brings this action on behalf of herself and all other African-

American home loan applicants similarly situated. This action is

brought as a class action pursuant to Rule 23(b) (2) and Rule

23(b) (3) of the Federal Rules of civil Procedure.

(b) The class consists of all African-Americans who
.:.?f. made application for home loans to Defendant i~~~~.~:=~~.o~~y~~r..s

the' filing of this comp"laint,- and whose applications were

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rejected because of their race or color, or because of the racial

composition of the neighborhood in which their property was

located.

(c) The class is so numerous that joinder of all persons is impracticable. Plaintiff ~~~~~~i1;y~i that many home loan applicants to Defendant by African-Americans ~~~~~~~~l~~~~§!!~.~ On information and belief, Defendant rejected the home loan applications of1!i~i:~~~~i~~!.E~C!~~~

2

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~r}~a~-~~~~f€~~t~~because of race or color, or because of the'

racial composition of the neighborhood in which their property

was located.

(d) Plaintiff will fairly and adequately protect the

interests of all class members as she is a member of the class

and her claim is typical of the claims of all class members.
Plaintiff I~JE~~~~~=at the treatment accorded herself and the

class members and will aggressively pursue the interests of the

class. Plaintiff's, interests in obtaining injunctive relief and

monetary damages for the violations of the above-mentioned

federal statutes are consistent with and not antagonistic to

those of any person within the class.

(e) The common questions of law and fact include: (i)

whether Defendanttliaci 'a-policy~-practice or 'pioceau~e to reject

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. . . , ..... -:. 1!:.:...._.:. • -..• .. -'.-_._~ ~~ _

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home loan applications on the basis of the applicants' race or on

the basis of the racial composition of the neighborhood in which

their property was located; (ii) whether the conduct alleged

herein is in violation of Title 42 U.S.C. §§ 1981 and 1982; 42

U.S.C. § 3605 and 15 U.S.C. § 1691{a); (iii) whether Plaintiff

and the members of the plaintiff class are entitled to an award

of actual, compensatory or punitive damages.

(f) The wrongful conduct alleged herein has been taken

generally against all members of the plaintiff class in that

African-American home loan applicants have had their loan

applications rejected on the basis of their race or color, or

because of the racial composition of the neighborhood in which

3

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/ their property was located, or both, pursuant to the policies,

practices or procedures of Defendant.

(g) The common questions of fact and law predominate

over questions affecting only individual class members.

(h) A class action is superior to other available

methods for the fair and efficient adjudication of the

controversy in that: (i) a mUltiplicity of suits with consequent

burden on the courts and defendant should be avoided; and (ii) it

would be unduly burdensome for all class members to intervene as

parties-plaintiff in this action.

THE FACTS

7. On or about F;ii" "...~'- 99'2~ ,Plaintiff Selma BUYCKS-

-r

,;F ROBERSON applied for \. hoiIie""ioan"~o
CITIBANK.

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r... 8. The purpose of the loan was to ~"""f"""i..",~""';·,....,n·cr an~Xis~ing

mortgage of approximately $43,500 on Plaintiff's home located at

2057 South 25th Avenue in Broadview, Illinois.

9. The property is located in a neighborhood in which the

African-American representation is growing and currently

constitutes over 50% of that neighborhood's population.

10. Plaintiff provided to CITIBANK extensive financial

documentation concerning her financial ability and the property,
including documents showing ~~ji;~p.~!:~~y.~~:~2:~~Q:
11. On or about~4i.~i~~~~~~ Plaintiff received from

Defendant CITIBANK a letter that informed Plaintiff that her

mortgage loan application had been denied because of delinquent

credit obligations and other adverse credit.

4

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12.

On E;:'li!:'.!~·~2.,~~Plaintiff

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reapplied for the(hom-;"'l~

and, again, provided to CITIBANK extensive financial

documentation concerning her annual income, financial ability ,~~

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application had been denied because her "income [did] not support

'fly (J the amount of credit requested."

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COUNT I

EQUAL CREDIT OPPORTUNITY

14. Plaintiff adopts and realleges paragraphs 1 through 13 of this Complaint and incorporates them by reference as paragraph 14 of Count 1.

15. The Equal Credit Opportunity Act, 15 U.S.C. § 1691

(1976), makes it unlawful for any creditor to discriminate

against any applicant with respect to any aspect of a credit

transaction on the basis of race. section 1691e of this Act

~fi;;~;;~~_';~f-;;~~-:;:;;p~-;;;:if£1b~a~;e~- allows a civil action to be brought by any person damaged under
the A:::

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.in"t.1!.;'2.. "'. '··-""""""'·:...",,>7s"--M·"-."~!O""t'''~'''~''a'''~''-J=']'''.'''~'''~''E'~' .<!~•..s.-,~...~...·..,·..~..,

Defendant has therefore

discriminated against Plaintiff on the basis of race or color, in

violation of the Equal Credit Opportunity Act, 15 U.S.C., § 1691

et gg.

17. As a direct and proximate result of Defendant's unlawful discrimination against Plaintiff, Plaintiff has suffered

5
- - - - - - - - _ . _ - - - - - - - - - - - _ . _ - - _. . . . .

.~

and continues to suffer great embarrassment, humiliation and emotional distress.

18. Plaintiff possessed adequate income and assets and had an adequate credit history to qualify for the loan requested, the value of the property was sufficient to support the loan and Defendant was aware of those facts.
19. Defendant's discrimination against Plaintiff was intentional and willful.

WHEREFORE, Plaintiff asks jUdgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial;

(c) Punitive damages, not exceeding the lesser of $500,000 or one per centum of the net worth of the Defendant;
(d) Appropriate injunctive relief;
(e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this court deems just and proper.
COUNT II

FAIR HOUSING ACT
20. Plaintiff adopts and realleges paragraphs 1 through 13 of this Complaint and incorporates them by reference as paragraph 20 of Count II.

21. This claim is brought under the Fair Housing Act, 42

u.S.C. §§ 3601 et. ~ Section 3613(a) (1) (A) of this Act allows

a civil action to be brought by any person
ll!c~!€~i~~?r~J:J:ri~~j1iI:Providesthat it

damaged under the shall be unlawfu

l

Act. for

any person or entity whose business includes engaging in

6

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52

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residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms of such a transaction, because of race or color.
22. Defendant's refusal to approve Plaintiff's loan was motivated by discrimination. The primary basis for Defendant's refusal to approve the loan was that Plaintiff is AfricanAmerican and that the property is located in a neighborhood in which African Americans constitute a significant percentage and are increasing in the racial composition.
23. Defendant's refusal to make a home loan because of the Plaintiff's race and the racial composition of the neighborhood denied the Plaintiff rights secured under 42 U.S.C. §§ 3601 et.
24. As a direct and proximate result of Defendant's unlawful violation of 42 U.S.C. §§ 3601 et. ~, Plaintiff has suffered and continues to suffer great embarrassment, humiliation and emotional distress.
25. Defendant's violation of 42 U.S.C. §§ 3601 et. ~ was willful and wanton, and motivated by ill will and malice.
WHEREFORE, Plaintiff asks judgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial; (c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this court deems just and proper.
7

COUNT III
CIVIL RIGHTS
26. Plaintiff adopts and realleges paragraphs 1 through 13 of this Complaint and incorporates them by reference as paragraph 26 of Count III.
27. Count III is brought pursuant to the Thirteenth Amendment of the United states Constitution to redress the deprivation of rights, privileges, and immunities secured thereby. Count III is also brought pursuant to 42 U.S.C. §§ 1981 and 1982, to secure the right of Plaintiff to make and enforce contracts on the same basis that such rights are enjoyed by white citizens, and to enforce the right of Plaintiff to inherit, purchase, lease, sell, hold, and convey real and personal property on the same basis as white citizens.
28. Defendant, on the basis of race and color, has deprived Plaintiff of the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations, including the right to enforce contracts and to have interest in property, as are enjoyed by White citizens. Defendant's refusal to provide Plaintiff a home loan was intentional and willful with the purpose and intent of depriving Plaintiff of her constitutional right to freely purchase property without regard to race.
29. As a direct and proximate result of the wrongful acts by the Defendant, Plaintiff has suffered actual damages and will continue to suffer damages from the humiliation and embarrassment caused by the Defendant's refusal to deal with her because of her race or color, and the deprivation by Defendant of Plaintiff's
8

()
constitutional and statutory rights freely to obtain home loans without regard to race.
30. Because of the Defendant's malicious refusal to deal with Plaintiff and its policy of discrimination against Plaintiff because of race or color, Plaintiff claims punitive or exemplary damages.
WHEREFORE, Plaintiff asks judgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial;
(c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this court deems just and proper.

Selma S. Buycks-Roberson, on

behalf of similarly

herself and situated,

others

~~r By:

Attorneys 4

Fay Clayton, Esq.

Michael Hilary

A. I.

Childe Alexis,

rs, Es Esq.

q.

ROBINSON CURLEY & CLAYTON, 300 South Wacker Drive

P.C.

suite 1700

Chicago, Illinois 60606

(312) 663-3100

9

 
 IN THE UNITED STATES DISTRICT COURT

F I FOR THE NORTHERN DISTRICT OF ILLINOIS D ~ ~

EASTERN DIVISION

L~

)

SELMA S. BUYCKS-ROBERSON;

)

CALVIN R. ROBERSON; and RENE

)

BROOKS, on behalf of themselves

)

and others similarly situated,

)

)

Plaintiffs,

)

)

v.

.)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

------------------)

Magistrate Judge Lefkow
IJUn~llK[·1~It'!.·f-"~.t~·1

lJAN 731895

NOTICE OF FILING

To: Alan N. Salpeter, Esq.
Robert J. Kriss, Esq. Mary Ann Spiegel, Esq. Mayer Brown & Platt 190 South LaSalle Street Chicago, Illinois 60603

PLEASE TAKE NOTICE that on Thursday, December 29, 1994, we shall file with the Clerk of the united States District Court for the Northern District of Illinois, Eastern Division, Plaintiffs' First Amended Complaint, a copy of which is herewith served upon you.

~ ..'

Fay Clayton, Esq. Hilary I. Alexis, Esq. ROBINSON CURLEY & CLAYTON, 300 South Wacker Drive suite 1700 Chicago, Illinois 60606 (312) 663-3100

P.C.

CERTIFICATE OF SERVICE I, Dawn M. Shields, certify that I shall cause to be served a copy of Plaintiffs' First Amended Complaint upon the following party, via First Class Mail, messenger delivery, Federal Express, or telefax, as indicated, this 30th day of December, 1994:

V First Class Mail
-- Messenger Delivery Federal Express Telefax Delivery

Alan N. Salpeter, Esq. Robert J. Kriss, Esq. Mary Ann Spiegel, Esq. Mayer Brown & Platt 190 South LaSalle Street Chicago, Illinois 60603 (312) 701-7711 -- Telefax No.

Subscribed and sworn to before me this 30th day
-----o--f-, December, 1994
C/~.e~ Notary Public

Dawn~

F I LED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

;.5 --,4..:, t,-~".L

,"

i: t)

¥~..1:9::1-1t·

,

'JAN

2 1995 J

/f/'V'

)

SELMA S. BUYCKS-ROBERSON;

)

H, Stu;Mt Cunningham: CJ.e[~
United States Dis'~rict Gaud!

CALVIN R. ROBERSON; and RENE

)

BROOKS, on behalf of themselves

)

No. 94 C 4094

and others similarly situated,

)

)

JUdge Costillo

Plaintiffs,

)

)

Magistrate Judge Lefkow

v.

)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

-----------------)

FIRST AMENDED COMPLAINT

f1 ·"'nt i1!fJ t. '..' ..,. ~,l'liV'!i[I., U UJ

Plaintiffs

Selma

S.

Buycks-Roberson,

Calvin R.

Roh··~Jrr*r~sGI n~:r

and
i()nif'

'.' IvIi,} I

Rene Brooks, on behalf of themselves and others similarly

I

situated, by and through their attorneys, make this First Amended

Complaint against Defendant, citibank Federal savings Bank

("citibank") •

NATURE OF THE ACTION 1. This is a civil action brought by Selma S. BuycksRoberson, Calvin R. Roberson and Rene Brooks on behalf of themselves and all other African-Americans who made home loan applications to Citibank, and whose applications were rejected because of their race or color, or because of the racial composition of the neighborhood in which their properties were located. This action seeks injunctive relief and monetary damages for violations of 42 U.S.C. §§ 1981 and 1982; 42 U.S.C. § 3605 and 15 U.S.C. § 1691(a).

JURISDICTION AND VENUE 2. Jurisdiction of this court arises under 28 U.S.C. § 1343(a) (4), 42 U.S.C. § 3613(a) (1) (A) and 15 U.S.C. § 1691e(f). 3. Venue is proper in the Northern District of Illinois since some of the acts and transactions complained of occurred in this district.
THE PARTIES 4. Plaintiff Selma S. Buycks-Roberson is an AfricanAmerican citizen of the United states who resides in Broadview, Illinois. 5. Plaintiff Calvin R. Roberson is an African-American citizen of the united states who resides in Chicago, Illinois. 6. Plaintiff Rene Brooks is an African-American citizen of the united states who resides in Chicago, Illinois. 7. Defendant citibank is a corporation that offers real estate mortgage loans, home improvement loans and home equity loans ("home loans").
CLASS ACTIONS ALLEGATIONS 8. (a) Plaintiffs are citibank home loan applicants; they bring this action on behalf of themselves and all other AfricanAmerican home loan applicants similarly situated. This action is brought as a class action pursuant to Rule 23(b) (2) and Rule 23(b) (3) of the Federal Rules of civil Procedure.
(b) The class consists of all African-Americans who made applications for home loans to Defendant within two years of the filing of this Complaint, and whose applications were
2

rejected because of their race or color, or because of the racial composition of the neighborhood in which their properties were located.
(c) The class is so numerous that joinder of all persons is impracticable. Plaintiffs are informed and believe that many home loan applications to Defendant by AfricanAmericans were illegally rejected. On information and belief, Defendant rejected the home loan applications of many dozens of African-American applicants· because of their race or color, and/or because of the racial composition of the neighborhoods in which their properties were located.
(d) Plaintiffs will fairly and adequately protect the interests of all class members, as they are members of the class and their claims are typical of the claims of all class members. Plaintiffs are incensed by the treatment they have received and will aggressively pursue their as well as the class's interests. Plaintiffs' interests in obtaining injunctive relief and monetary damages for the violations of the above-mentioned federal statutes are consistent with and not antagonistic to those of any person within the class.
(e) The common questions of law and fact include: (i) whether Defendant had a policy, practice or procedure to reject home loan applications on the basis of the applicants' race or on the basis of the racial composition of the neighborhoods in which their properties were located; (ii) whether the conduct alleged herein is in violation of Title 42 U.S.C. §§ 1981 and 1982; 42 U.S.C. § 3605 and 15 U.S.C.
3

§ 1691(a); (iii) whether Plaintiff and the members of the class are entitled to an award of actual, compensatory or punitive damages.
(f) The wrongful conduct alleged herein has been taken generally against all members of the class in that AfricanAmerican home loan applicants have had their loan applications rejected on the basis of their race or color, or because of the racial composition of the neighborhoods in which their properties were located, or both, pursuant to the policies, practices or procedures of Defendant.
(g) The common questions of fact and law predominate over questions affecting only individual class members.
(h) A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that: (i) a mUltiplicity of suits with consequent burden on the courts and Defendant should be avoided; and (ii) it would be unduly burdensome for all class members to intervene as parties-plaintiffs in this action.
THE FACTS Ms. Buycks-Roberson
9. On or about April 4, 1992, Plaintiff Selma BuycksRoberson applied for a home loan of approximately $43,700 from citibank.
10. The purpose of the loan was to refinance an existing mortgage of approximately $43,500 on Ms. Buycks-Roberson's home, located at 2057 South 25th Avenue in Broadview, Illinois.
4

11. The property which Ms. Buycks-Roberson attempted to refinance is located in a neighborhood in which the AfricanAmerican representation is growing and currently constitutes over fifty percent (50%) of that neighborhood's population.
12. Ms. Buycks-Roberson provided to citibank extensive financial documentation concerning her financial ability and the property, including documents showing annual income of over $47,000.
13. On or about April 28, 1992, Ms. Buycks-Roberson received from Defendant citibank a letter that informed her that her mortgage loan application had been denied because of delinquent credit obligations and other adverse credit.
14. On June 19, 1992, Ms. Buycks-Roberson reapplied for the home loan, and again provided to citibank extensive financial documentation concerning her annual income, financial ability and additional information concerning her credit worthiness.
15. On or after July 10, 1992, Ms. Buycks-Roberson received from citibank a letter that informed Plaintiff that her mortgage loan application had been denied because her "income [did] not support the amount of credit requested."
16. Ms. Buycks-Roberson was qualified to receive the loan she sought from citibank.
Mr. Roberson 17. On or about July 9, 1993, Plaintiff Calvin Roberson
applied for a home loan of approximately $43,000 from Citibank.
5

18. The purpose of the loan was to refinance an existing mortgage of approximately $43,000 on Mr. Roberson's home, located at 2847 West 85th street in Chicago, Illinois.
19. The property which Mr. Roberson attempted to refinance is located in a neighborhood in which the African-American representation is growing.
20. Mr. Roberson provided citibank with all documentation that citibank requested, including documents showing an annual income of approximately $69,000 from his management position at AT&T, and the equity in his home valued at approximately $75,000. Mr. Roberson also provided documentation showing additional liquid assets well in excess of the amount of the loan requested. Mr. Roberson's income was more than sufficient to enable him to meet his credit obligations.
21. On or about July 9, 1993, Mr. Roberson received a letter from Citibank, denying his application for refinancing on the grounds that it was "incomplete," and on the grounds that Defendant citibank did not "make this type of loan."
22. Mr. Roberson was qualified to receive the loan he sought from citibank.
Ms. Brooks 23. On or about November 25, 1993, Plaintiff Rene Brooks
applied for a home loan of approximately $95,000 from citibank. 24. Ms. Brooks provided citibank with all documentation
that citibank required.
6

25. The purpose of the loan was to refinance an existing mortgage of approximately $95,000 on Ms. Brooks's condominium, located at 5000 South Cornell Street in Chicago, Illinois.
26. The property which Ms. Brooks attempted to refinance is located in a neighborhood in which there is a significant African-American population.
27. On or about March 8, 1994, Ms. Brooks's application for a home loan was denied on the grounds that she had inadequate collateral, and on the grounds that she had submitted an incomplete application.
28. Ms. Brooks was qualified to receive the home loan she sought from Citibank.
COUNT I EQUAL CREDIT OPPORTUNITY 29. Plaintiffs adopt and reallege ~~ 1 through 28 of this complaint and incorporate them by reference as ~ 29 of Count I. 30. The Equal Credit Opportunity Act, 15 U.S.C. § 1691 (1976), makes it unlawful for any creditor to discriminate against any applicant with respect to any aspect of a credit transaction on the basis of race. section 1691e of this Act allows a civil action to be brought by.any person damaged under the Act. 31. Defendant refused to approve Plaintiffs' loan applications because Plaintiffs are African-American. Defendant has, therefore, discriminated against Plaintiffs on the basis of their race or color, in violation of the Equal Credit opportunity Act, 15 U.S.C., § 1691, et ~
7

32. As a direct and proximate result of Defendant's unlawful discrimination against Plaintiffs, Plaintiffs have sUffered, and continue to suffer, great embarrassment, humiliation and emotional distress.
33. Plaintiffs possessed adequate income and assets and had adequate credit history to qualify for the loans requested, the value and/or the equity they had in their properties were sufficient to support the loans, and Defendant was aware of those facts.
34. Defendant's discrimination against Plaintiffs was intentional and willful.
WHEREFORE, each Plaintiff asks jUdgment against Defendant for:
(a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial; (c) Punitive damages, not exceeding the lesser of $500,000
or one per centum of the net worth of the Defendant; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this Court deems just and proper.
COUNT II FAIR HOUSING ACT 35. Plaintiffs adopt and reallege ~~ 1 through 28 of this Complaint and incorporate them by reference as ~ 35 of Count II. 36. This claim is brought under the Fair Housing Act, 42 U.S.C. §§ 3601, et ~ section 3613(a) (1) (A) of this Act
8

allows a civil action to be brought by any person damaged under the Act. sections 3605(a) and "(b) (1) provides that it shall be unlawful for any person or entity whose business includes engaging in residential real-estate-related transactions to discriminate against any person in making available such a transaction, or in the terms of such a transaction, because of race or color.
36. Defendant's refusals to approve Plaintiffs' loan applications were motivated by discrimination. The primary bases for Defendant's refusal to approve Plaintiffs' loans were that Plaintiffs are African-American, and that Plaintiffs' properties are located in neighborhoods in which African-Americans constitute a substantial percentage of the population.
37. Defendant's refusal to make home loans because of Plaintiffs' race and the racial composition of the neighborhoods in which they reside denied Plaintiffs' rights secured under 42 U.S.C. §§ 3601, et ~
38. As a direct and proximate result of Defendant's unlawful violation of 42 U.S.C. §§ 3601, et ~, Plaintiffs have suffered and continue to suffer great embarrassment, humiliation and emotional distress.
39. Defendant's violation of 42 U.S.C. §§ 3601, et ~ was willful and wanton, and motivated by ill will and malice.
WHEREFORE, Plaintiffs ask jUdgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial;
9

(c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this Court deems just and proper.
COUNT III CIVIL RIGHTS 39. Plaintiffs adopt and reallege ~~ l through 28 of this Complaint and incorporate them by reference as ~ 39 of Count III. 40. Count III is brought pursuant to the Thirteenth Amendment of the united states Constitution to redress the deprivation of rights, privileges and immunities secured thereby. Count III is also brought pursuant to 42 U.S.C. §§ 1981 and 1982 to secure the right of Plaintiffs to make and enforce contracts on the same basis that such rights are enjoyed by white citizens, and to enforce the right of Plaintiffs to inherit, purchase, lease, sell, hold, and convey real and personal property on the same basis as white citizens. 41. Defendant, on the basis of race and color, has deprived Plaintiffs of the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations, including the right to enforce contracts and to have interest in property, as are enjoyed by white citizens. Defendant's refusal to provide Plaintiff a home loan was intentional and willful with the purpose and intent of depriving Plaintiff of her constitutional right to freely purchase property without regard to race. 42. As a direct and proximate result of the wrongful acts by the Defendant, Plaintiffs have suffered actual damages and
10

will continue to suffer damages from the humiliation and embarrassment caused by the Defendant's refusal to deal with them because of their race or color, and the deprivation by Defendant of Plaintiffs' constitutional and statutory rights freely to obtain home loans without regard to race.
43. Because of the Defendant's malicious refusal to deal with Plaintiffs and its policy of discrimination against Plaintiffs ,because of race or color, Plaintiffs claim punitive or exemplary damages.
WHEREFORE, Plaintiffs ask jUdgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial; (c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this Court deems just and proper.
SELMA S. BUYCKS-ROBERSON; CALVIN R. ROBERSON; and RENE BROOKS, on behalf of themselves and others similarly situated
Fay Clayton, Esq. Hilary I. Alexis, Esq.
ROBINSON CURLEY & CLAYTON, P.C.
300 South Wacker Drive suite 1700 Chicago, Illinois 60606 (312) 663-3100
12

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Selma S. BUYCKS-ROBERSON,

)

Renee BROOKS and Calvin ROBERSON)

on behalf of themselves and

)

others similarly situated,

)

)

)

Plaintiffs

)

)

vs.

)

)

)

CITIBANK FEDERAL SAVINGS

)

BANK,

)

)

Defendant.

)

No. 94 C 4094 JUdge castillo

SECOND AMENDED COMPLAINT Plaintiffs Selma S. Buycks-Roberson, Renee Brooks and Calvin R. Roberson, on behalf of themselves and others similarly situated, by and through their attorneys, make this Second Amended Complaint against Defendant, citibank Federal Savings Bank ("Citibank").

NATURE OF THE ACTION 1. This is a civil action brought by Selma S. BuycksRoberson, Renee Brooks and Calvin R. Roberson on behalf of themselves and all other African-Americans whose home loan applications to citibank originated from the Chicago metropolitan area and whose applications were rejected because of their race or color or because of the racial composition of the neighborhood in which their properties were located. This action seeks injunctive relief and monetary damages for violations of 42 u.S.C. §§ 1981 and 1982; 42 U.S.C. § 3605 and 15 U.S.C. § 169l(a).

JURISDICTION AND VENUE 2. Jurisdiction of this court arises under 28 U.S.C. § 1343(a) (4), 42 U.S.C. § 3613(a) (1) (A) and 15 U.S.C. § 1691e(f). 3. Venue is proper in the Northern District of Illinois since some of the acts and transactions complained of occurred in this district.
THE PARTIES 4. Plaintiff Selma S. Buycks-Roberson is an AfricanAmerican citizen of the united States who resides in Broadview, Illinois. 5. Plaintiff Renee Brooks is an African-American citizen of the united States who resides in Chicago, Illinois. 6. Plaintiff Calvin R. Roberson is an African-American citizen of the united States who resides in Chicago, Illinois. 7. Defendant citibank is a federal savings bank that offers residential mortgage loans ("home loans") .
CLASS ACTIONS ALLEGATIONS 8. (a) Plaintiffs are citibank home loan applicants; they bring this action on behalf of themselves and all other AfricanAmerican home loan applicants similarly situated. This action is brought as a class action pursuant to Rule 23(b) (2) and Rule 23(b) (3) of the Federal Rules of Civil Procedure.
(b) The class consists of all African-Americans who filed applications for home loans to citibank and were rejected on or after July 6, 1992 because they are African-American and/or
2

because the racial composition of the neighborhoods in which their properties were located was predominantly African-American.
(c) The class is so numerous that joinder of all persons is impracticable. Plaintiffs are informed and believe that many home loan applications to Defendant by AfricanAmericans were illegally rejected. On information and belief, Defendant rejected the home loan applications of many dozens of African-American applicants because of their race or color, and/or because of the racial composition of the neighborhoods in which their properties were located.
(d) Plaintiffs will fairly and adequately protect the interests of all class members, as they are members of the class and their claims are typical of the claims of all class members. Plaintiffs are incensed by the treatment they have received and will aggressively pursue their as well as the class's interests. Plaintiffs' interests in obtaining injunctive relief and monetary damages for the violations of the above-mentioned federal statutes are consistent with and not antagonistic to those of any person within the class.
(e) The common questions of law and fact include: (i) whether Defendant had a policy, practice or procedure to reject home loan applications on the basis of the applicants' race or on the basis of the racial composition of the neighborhoods in which their properties were located; (ii) whether the conduct alleged herein is in violation of Title 42 U.S.C. §§ 1981 and 1982; 42 U.S.C. § 3605 and 15 U.S.C.
3

§ 1691(a); and (iii) whether Plaintiffs are entitled to an award of actual, compensatory or punitive damages.
(f) The wrongful conduct alleged herein has been taken generally against all members of the class in that AfricanAmerican home loan applicants have had their loan applications rejected on the basis of their race or color, or because of the racial composition of the neighborhoods in which their properties were located, or both, pursuant to the policies, practices or procedures of Defendant.
(g) The common questions of fact and law predominate over questions affecting only individual class members.
(h) A class action is superior to other available methods for the fair and efficient adjudication of the controversy in that: (i) a mUltiplicity of suits with consequent burden on the courts and Defendant should be avoided; and (ii) it would be unduly burdensome for all class members to intervene as parties-plaintiffs in this action.
THE FACTS Ms. Buycks-Roberson
9. On or about April 4, 1992, Plaintiff Selma BuycksRoberson applied for a home loan of approximately $43,700 from citibank.
10. The purpose of the loan was to refinance an existing mortgage of approximately $43,500 on Ms. Buycks-Roberson's home, located at 2057 South 25th Avenue in Broadview, Illinois.
11. The property that Ms. Buycks-Roberson attempted to refinance is located in a neighborhood in which the African-
4

American representation is growing and currently constitutes over fifty percent (50%) of that neighborhood's population.
12. Ms. Buycks-Roberson provided to citibank extensive financial documentation concerning her financial ability and the property, including documents showing annual income of over $47,000.
13. On or about April 28, 1992, Ms. Buycks-Roberson received from Defendant citibank a letter that informed her that her mortgage loan application had been denied because of delinquent credit obligations and other adverse credit.
14. On June 19, 1992, Ms. 'Buycks-Roberson reapplied for the home loan, and again provided to citibank extensive financial . documentation concerning her annual income, financial ability and additional information concerning her credit worthiness.
15. On or after July 10, 1992, Ms. Buycks-Roberson received from citibank a letter that informed her that her mortgage loan application had been denied because her "income [did] not support the amount of credit requested."
16. Ms. Buycks-Roberson was qualified to receive the loan she sought from citibank.
Ms. Brooks 17. On or about November 25, 1993, Plaintiff Renee Brooks
applied for a home loan of approximately $95,000 from citibank. 18. Ms. Brooks provided Citibank with all documentation
that Citibank required.
5

19. The purpose of the loan was to refinance an existing mortgage of approximately $95,000 on Ms. Brooks's condominium, located at 5000 South Cornell Street in Chicago, Illinois.
20. The property that Ms. Brooks attempted to refinance is located in a neighborhood in which there is a significant African-American population.
21. On or about March 8, 1994, Ms. Brooks's application for a home loan was denied on the grounds that she had inadequate collateral, and on the grounds that she had submitted an incomplete application.
22. Ms. Brooks was qualified to receive the home loan she sought from'citibank.
Mr. Roberson 23. On or about July 9, 1993, Plaintiff Calvin Roberson
applied for a home loan of approximately $43,000 from citibank. 24. The purpose of the loan was to refinance an existing
mortgage of approximately $43,000 on Mr. Roberson's home, located at 2847 West 85th Street in Chicago, Illinois.
25. The property which Mr. Roberson attempted to refinance is loc~ted in a neighborhood in which the African-American representation is growing.
26. Mr. Roberson provided citibank with all documentation that citibank requested, including documents showing an annual income of approximately $69,000 from his management position at AT&T, and the equity in his home valued at approximately $75,000. Mr. Roberson also provided" documentation showing additional liquid assets well in excess of the amount of the loan requested.
6

Mr. Roberson's income was more than sufficient to enable him to meet his credit obligations.
27.' On or about July 9, 1993, Mr. Roberson received a letter from'citibank, denying his application for refinancing on the grounds that it was "incomplete," and on the grounds that Defendant citibank did not "make this type of loan.".
28. Mr. Roberson was qualified to receive the loan he sought from citibank.
COUNT I EQUAL CREDIT OPPORTUNITY 29. Plaintiffs adopt and reallege !! 1 through 28 of this Complaint and incorporate them by reference as ~ 29 of Count I. 30. The Equal Credit Opportunity Act, 15 U.S.C. § 1691 (1976), makes it unlawful for any creditor to discriminate against any applicant with respect to any aspect of a credit transaction on the basis of race. section 1691e of this Act allows a civil action to be brought by any person damaged under the Act. 31. Defendant refused to approve Plaintiffs' loan applications. because Plaintiffs are African-American. Defendant has, therefore, discriminated against Plaintiffs on the basis of their race or color, in violation of the Equal Credit opportunity Act, 15 U.S.C., § 1691, et ~ 32. As a direct and proximate result of Defendant's unlawful discrimination against Plaintiffs, Plaintiffs have sUffered, and continue to suffer, great embarrassment, humiliation and emotional distress.
7

33. Plaintiffs possessed adequate income and assets and had adequate cr~dit history to qualify for the loans requested, the value and/or the e~ity they had in their properties were sufficient to support the loans, and Defendant was aware of those facts.
34. Defendant's discrimination against Plaintiffs was intentional and willful.
WHEREFORE, each Plaintiff asks jUdgment against Defendant for:
(a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial; (c) Punitive damages, not exceeding the lesser of $500,000
or one per centum of the net worth of the Defendant; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees·and costs of suit; and (f) Further relief as this court deems just and proper.
COUNT II FAIR HOUSING ACT 35. Plaintiffs adopt and reallege ~~ 1 through 28 of this Complaint and incorporate them by reference as ~ 35 of Count II. 36. This claim is brought under the Fair Housing Act, 42 U.S.C. §§ 3601, et ~ section 3613(a) (1) (A) of this Act allows a civil action to be brought by any person damaged. under the Act. sections 3605(a) and (b) (1) provides that it shall be unlawful for any person or entity whose business includes engaging in residential real-estate-related transactions to
8

discriminate against any person in' making available such a transaction, or in 'the terms of such a transaction, because of race or color.
36. Defendant's'refusals to approve Plaintiffs' loan applications were motivated by discrimination. The primary bases for Defendant's refusal ~o approve Plaintiffs' loans were that Plaintiffs are African-American, and that Plaintiffs' properties are located in neighborhoods in which African-Americans constitute a substantial percentage of the population.
37. Defendant's refusal to make home loans because of Plaintiffs' race and the racial composition of the neighborhoods in which they reside denied Plaintiffs' rights secured under 42 U.S.C. §§ 3601, et ~
38. As'a direct and proximate result of Defendant's unlawful violation of 42 U.S.C. §§ 3601, et ~, Plaintiffs have suffered and continue to suffer great embarrassment, humiliation and emotional distress.
39. Defendant's violation of 42 U.S.C. §§ 3601, et ~ was willful and wanton, and motivated by ill will and malice.
WHEREFORE, Plaintiffs ask jUdgment against Defendant for: (a) Actual ,damages in an amount to be proved at trial; (b) compensatory damages in an amount to be proved at
trial; (c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable a~torneys' fees and costs of suit; and (f) Further relief as this Court deems just and proper.
9

COUNT III CIVIL RIGHTS 39. Plaintiffs adopt and reallege ~~ 1 through 28 of this complaint and incorporate them by reference as ~ 39 of Count III. 40. Count III is brought pursuant to the Thirteenth Amendment of the united states Constitution to redress the deprivation'of rights, privileges and immunities secured thereby. Count III is also brought pursuant to 42 U.S.C. §§ 1981 and 1982 to secure the right of Plaintiffs to make and enforce contracts on the same basis that such rights are enjoyed by white citizens, and to enforce the right of Plaintiffs to inherit, purchase, lease, sell, hold, and conv~y real and personal property on the same basis as white citizens. 41. Defendant, on the basis of race and color, has deprived Plaintiffs of the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations, including the right to enforce con~racts and to have interest in property, as are enjoyed by white citizens. Defendant's refusal to provide Plaintiff a home loan was intentional and willful with the purpose and intent of depriving Plaintiff of her constitutional right to freely purchase property without regard to race. 42. As a direct and proximate result of the wrongful acts by the Defendant, Plaintiffs have suffered actual damages and will continue to suffer damages from the humiliation and. embarrassment caused by the Defendant's refusal to deal with them because of their race or color, and the deprivation by Defendant of Plaintiffs' constitutional and statutory rights freely to obtain home loans without regard to race.
10

43. Because of the Defendant's malicious refusal to deal with Plaintiffs and its policy of· discrimination against Plaintiffs because of race or color, Plaintiffs claim punitive or exemplary damages.
WHEREFORE, Plaintiffs ask jUdgment against Defendant for: (a) Actual damages in an amount to be proved at trial; (b) Compensatory damages in an amount to be proved at
trial; (c) Punitive damages; (d) Appropriate injunctive relief; (e) Reasonable attorneys' fees and costs of suit; and (f) Further relief as this Court deems just and proper.
SELMA S. BUYCKS-ROBERSON; RENEE BROOKS; and CALVIN R. ROBERSON, on behalf of themselves and others similarly situated

Fay Clayton, Esq. Hilary I. Alexis, Esq. Sara N. Love, Esq. ROBINSON CURLEY & CLAYTON, P.C. 300 South Wacker Drive Suite 1700 Chicago, Illinois 60606 (312) 663-3100

Judson H. Miner, Esq. Jeffrey cummings, Esq.
Davis Miner Barnhill & Galland
14 West Erie Street Chicago, Illinois 60610 (312) 751-1170

11

CERTIFICATE OF SERVICE I, Dana Carrera, certify that I shall cause to be served a copy of PLAINTIFFS' SECOND AMENDED COMPLAINT upon the following party, via First Class Mail, messenger delivery, Federal Express, or telefax, as indicated, this 13th day of July, 1995:

First Class Mail ~ Messenger Delivery
Federal Express
Telefax Delivery

Alan N. Salpeter, Esq.
Robert J. Kriss, Esq. Mary Ann spiege~, Esq.
Mayer Brown & Platt
190 South LaSalle Street Chicago, Illinois 60603 (312) 701-7711 -- Telefax No.

Subscribed and sworn to before me this 13th day of July, 1995

Dana Carrera

 
 ,:~~~'r. "L G S ~ [<~§' ~rt:·~ LI: C() F)"~l'

1

1

IN THE UNITED STATES DISTRICT c~h~

2
3

FOR THE NORTHERN DISTRICT OF ILLIN~S~ ,

<. 0..·. SELMA S.

BUYCKS-ROBERSOENA, SToEnRNheDr IVISI)ON.~.'.(4-~Ilii~;,CUf.;rzJ~~"(~-1~I1V7/(j

~
'; JS{C:::J"

behalf and others similarly situated)

4

)

Plaintiffs;

)

5 vs.

)

.. ~.ol.(\' ['y,"
u0'ilc;~:i~&
Case No. 94 Co~~94

CITIBANK FEDERAL SAVINGS BANK,

) Chicago, Illinois

6

) November 12, 1997

Defendant.

) 9:00 o'clock a.m.

7

8

TRANSCRIPT OF PROCEEDINGS

\t

. '\\v~,,\\)

BEFORE THE HONORABLE RUBEN CASTILLO

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.,;.!

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9

t~r'<

APPEARANCES:

10

For the Plaintiff:

ROBINSON, CURLEY & CLAYTON, P.C.

11

BY MS. FAY CLAYTON

300 S. Wacker Drive, Suite 1700

12

Chicago, Illinois 60606.

(312) 663-3100.

13

DAVIS, MINER, BARNHILL & GALLAND

14

BY MR. JUDSON H. MINER

14 W. Erie Street

15

Chicago, Illinois 60610

(312) 751-1170

16

For the Defendant:

MAYER, BROWN & PLATT, BY

17

MS. LUCIA NALE

190 S. LaSalle Street

18

Chicago, Illinois 60603

(312) 782-0600

19

20 Court Reporter:

21

KATHLEEN M. FENNELL, CSR, RPR

Official Court Reporter

22

United States District Court

219 South Dearborn Street, Suite 2318-A

23

Chicago, Illinois 60604

Telephone (312) 435-5569

24

25

2

1

(Proceedings heard in open court:)

2

THE CLERK: 94 C 4094, Buycks-Roberson versus

3 citibank.

4

MS. NALE: Good morning, Your Honor, Lucia Nale on

5 behalf of Citibank.

6

MR. MINER: Good morning, Jud Miner and Fay Clayton

7 for the plaintiffs.

8

MS. CLAYTON: Good morning, Your Honor.

9

THE COURT: How many motions do we have up today,

10 three?

11

MS. NALE: Well, I suppose one could say three. As

12 you know, we filed our summary judgment motion --

13

THE COURT: Right.

14

MS. NALE: -- our related Daubert motion, and

15 plaintiffs have filed a motion for sanctions which I think is

16 up at 9:30, but I'm hoping we could address it today as well.

17

THE COURT: Sure. No, I want to address all three

18 motions.

19

MS. CLAYTON: Your Honor, I would suggest that before

20 we address those, this is also a status conference, it might be

21 useful to Your Honor if Mr. Miner reported on the status of

22 conversations since our last meeting.

23

THE COURT: Sure.

24

MR. MINER: We have been talking, and it's certainly

25 my perception that we're a hair apart in terms of trying to

Kathleen M. Fennell, Official Reporter

3

1 resolve it. I hoped to hear back from Mr. Salpeter yesterday.

2 He wasn't sure he'd be able to get back to me. We didn't talk,

3 so

4

THE COURT: Do you know anything about that?

5

MS. NALE: Your Honor, I personally haven't been

6 involved in the discussions with Mr. Salpeter and Jud. I am

7 aware that we need to get back to our client. As r-lr. Miner is

8 aware, Al is out of town, as is Bob, which is why I'm here

9 alone today.

10

THE COURT: Okay.

11

MS. NALE: So we are moving forward in the talks. I

12 can't say one way or the other where they're going to go.

13

I do, however, want to deal with the briefing issue,

14 particularly on the summary judgment. As in the past as you're

15 well aware, we've made progress, but we've run into

16 difficulties that couldn't be overcome, and I don't want the

17 let motion, therefore, linger in the background.

18

THE COURT: It will not linger, don't worry about

19 that.

20

Do you want me -- what's the plaintiffs' perspective

21 as to what we should do with the three motions, given what

22 you're telling me, Mr. Miner?

23

MR. MINER: Well, we have a couple of thoughts.

24 First, we are going to be filing two more motions.

25

THE COURT: What are your two more motions?

Kathleen M. Fennell, Official Reporter

4

1

MR. MINER: I withheld them because of my

2 conversations. I told Mr. Salpeter. One is that if we're

3 going to proceed, we're going to ask the Court to lift the

4 protective order so that we can use this data more freely.

5 Right now we're under tremendous constraints. In light of

6 recent Seventh Circuit authority that really discourages these

7 kinds of blanket prohibitions, not showing this to anybody,

8 we're going to simply ask the Court to let us use it more

9 freely.

10

THE COURT: Okay.

11

MR. MINER: Secondly, we have had an ongoing dispute

12 with the defendants over what are called ACAPS databases.

13 ACAPS were represented to us early in the game as sort of the

14 ultimate database for determining credit, and -- but it was

15 highly secret information. They weren't going to share with us

16 actually what the formula was and how it was ascertained.

17

Largely on those representations, and our belief that

18 it was fairly accurate or accurate enough, we used it heavily

19 in our analysis. In their response, they have come out and

20 suggested that maybe the ACAPS really aren't worth anything and

21 there's some very specific pieces of credit information that

22 are much more reliable.

23

We now want to know what's in the database. We

24 suspect that pieces of information they're relyi~g on are

25 indeed part of the database we're using, but we ought to know

Kathleen M. Fennell, Official Reporter

5

1 that for sure now.

2

Since they're no longer relying on the ACAPS database

3 and apparently are representing that it's not worth much, we're

4 going to ask the Court to order them to tell us precisely

5 what's on it.

6

And in terms of the order of the motions, we certainly

7 would like to address first this sanctions motion because we

8 have spe~t an arm and a leg on this case, we think

9 inappropriately in many respects, and we'd like that addressed

10 so that we can continue, if we go on, to fight this on a level

11 playing field.

12

And, secondly, before we e~en get to the motion for

13 summary judgment, there's some fundamental problems in terms of

14 it being wildly over the IS-page limit without bothering to ask

15 the Court's permission to do so, and it's my recollection it

16 wasn't even filed on time. So I'm not sure that that motion is

17 really properly before the Court at this time.

18

THE COURT: Okay.

19

MS. CLAYTON: One other aspect --

20

THE COURT: Go ahead.

21

MS. CLAYTON: -- on our motions, Your Honor, is that

22 with regard to the settlement talks, as Your Honor will recall,

23 one of the stumbling blocks was the attorneys' fees.

24

In the interim since our last settlement conference,

25 Citibank has substantially increased its offer, and I would

Kathleen M. Fennell, Official Reporter

6

1 say, I think it's fair to say we -- that with one small caveat

2 in terms of future efforts, we have reached an agreement on

3 that item. Wouldn't you say?

4

MR. MINER: I think, but I've thought this before, I

5 believe that I'm going to be quite surprised if we don't

6 actually resolve this matter. I mean I think we're that close.

7

Now, Mr. Salpeter did have to go back to his clients

8 on I think it's really two points. I didn't view either of

9 them as very significant. In terms of some of the money

10 differences, we have dramatically closed the gap.

11

MS. CLAYTON: But the key there is if we have to do a

12 lot of future work, that will be a problem.

13

THE COURT: I understand.

14

MS. CLAYTON: We have no difficulty in Citibank

15 responding to our motion, of course.

16

THE COURT: I'll give you the last word, but then I

17 really want it to be the last word.

18

MS. NALE: Your Honor, I'm not going to deal with the

19 representations made by plaintiffs on ACAPS. If they file a

20 motion, I'll deal with that.

21

THE COURT: That would be a motion to compel, right?

22

MR. MINER: Right.

23

THE COURT: That will be about the fifth motion to

24 compel?

25

MS. CLAYTON: I think probably the ninth.

KA~h'p.p.n M_ PAnnA" _ Official Renorter

------------ ------------- ---

7

1

MS. NALE: Okay. But let me deal first with the

2 concept of the sanctions motion. From my perspective, I think

3 that's something that needs to be deferred to the end of the

4 case.

5

The arguments presented in the sanctions motions have

6 been raised along with those eight prior motions to compel that

7 you've heard about, and in each instance, no award of

8 attorneys' fees has been made.

9

I'd also point out in our last settlement discussions,

10 you pointed out to M~. Kriss that while we were focusing on

11 summary judgment, that's our focus where it would be, and we

12 wouldn't have to respond on other matters.

13

with that said, I think it should be deferred because

14 it could become moot. We could settle. We might win, and

15 after all, this is an attorneys' fees case. So I think it

16 should be deferred to the end of the case, and that's where

17 briefing should stand on that motion. If the Court disagrees,

18 we'll set a briefing schedule. We move onward.

19

I think it's important, however, that we do set a

20 briefing schedule for the summary judgment motion. It was

21 filed with a motion for leave to file an oversized brief, which

22 obviously is also, I guess, part of the motions before Your

23 Honor. I didn't include that separately, but that's part of

24 the motion up before Your Honor, and they didn't say anything

25 about whether they want to proceed forward with discovery.

Kathleen M. Fennell, Official Reporter

8

1

THE COURT: You don't have to worry about that.

2

MS. NALE: That's where I think we should go.

3

THE COURT: Okay. First, a word about settlement. I

4 put a lot of energy into trying to help you along those lines.

S I think in September we met maybe three times.

6

My focus now is going to be on the litigation of the

7 case, so it's up to you. At this point, I brought you as close

8 as I could. It's up to you to make that journey over that

9 bridge. Unless you think there's something totally exceptional

10 about this, I will keep focused on the litigation of the case,

11 and you can report to me if you have a tentative settlement by

12 presenting it to me jointly to my chambers by way of a joint

13 motion for preliminary approval, which is I think what. we would

14 have to do, given the class certification in this case.

15

If you think there's something exceptional about this

16 that merits what would be probably my fifth settlement

17 conference in this case, let me know about that by way of a

18 joint letter.

19

Now, the litigation of the case. I've taken a close

20 look at all the pleadings in this case. I do disagree with the

21 defendants. The motions for sanctions I think needs to be

22 dealt with.

23

I have thought about having a hearing on this issue

24 because some very serious allegations are being made. I think

25 in the first instance, I need to see a written response from

Kathleen M. Fennell. Official Reporter

9

1 the defendant. I'll give the defendants as much time as you

2 want, so you tell me what you think is a reasonable briefing

3 schedule with regard to this.

4

MS. NALE: Your Honor, I would like, because I'm

5 cQmmitting other people to a schedule here

6

THE COURT: Don't worry about it. Just ask

7

MS. NALE: -- may I just ask for 45 days to make sure

8 I'm not stepping on anyone's toes?

9

THE COURT: I will give you 45 days, and I will give

10 the plaintiffs 21 days thereafter, and then we might be at the

11 point where we're going to have a hearing before I decide

12 what's going to be done with that.

13

Now, the motion for summary judgment. I've taken a

14 close look at the motion, I've taken a close look at all the

15 attachments. Let me give you what are my preliminary

16 conclusions as to the motion for summary judgment.

17

And I think I have to start out with the Daubert

18 motion because this is the prong on which you're trying to have

19 me grant summary judgment.

20

My preliminary conclusion with regard to the Daubert

21 motion would be to partially grant and partially deny the

22 motion, and let me tell you what I mean by that.

23

I would fully deny the motion as it relates to expert

24 witness Shlay. I believe that her testimony fully meets the

25 Daubert criteria. I believe that at best, what the defendants

Kathleen M. Fennell, Official Reporter

r

10

1 have mounted is what Daubert refers to as what could be shaky

2 but admissible testimony. That's my conclusion.

3

Now, as to Mr. Bradford, I preliminarily conclude that

4 I would be of a mind to exclude his opinion testimony but allow

5 him to testify as to the charts that he prepared as someone who

6 has knowledge, who made a selection, made a comparison and

7 would be able to describe fully the comparison that he made,

8 the findings that he made, but would not be allowed to give his

9 opinion testimony that what occurred here was, in fact,

10 discriminatory. He would be allowed to give results without

11 opinion. That would be my conclusion based on Daubert, its

12 progeny, and most importantly Rule 403, balancing probative

13 value against prejudicial impact.

14

Having said that, my preliminary conclusion would be

15 to deny the motion for summary judgment in the way that it's

16 currently framed. I would do that because there are too many

17 material issues of fact, because Citibank used subjective

18 decision-making in this case, because Miss Shlay's testimony is

19 perhaps a little shaky but admissible, and certainly in

20 carefully reviewing her deposition testimony, I believe there's

21 enough here to proceed to trial.

22

Now, I have couched this all as preliminary

23 conclusions. I'm not going to enter any findings on the

24 motion. What I would have in mind is to schedule oral argument

25 where you could address my preliminary conclusions.

Kathleen M. Fennell, Official Reporter

11

1

And from the defendants, I would really like to see

2 what the case law is and a similar case like this where summary

3 judgment has been granted. I looked at your cases. I don't

4 see it. So I'd certainly like to see that case law, and I'd

5 like to get the case law at least three days before oral

6 argument.

7

From the plaintiffs' perspective, I'd like to see any

8 case law that you think supports allowing someone like

9 Mr. Bradford give the opinion testimony that I preliminarily

10 have concluded should be excluded in this case, and I would

11 like to see the case law on that, again, at least three days

12 before oral argument.

13

I am very much aware of the attorneys' fees issues in

14 this case. I would have in mind setting this case for oral

15 argument, because of my own trial schedule, before

16 Thanksgiving, and I was thinking of either the 24th or the

17 25th. And what I have in mind is a 25, 25 and 10 schedule;

18 that is, 25 minutes for the defendants, 25 minutes for the

19 plaintiffs, 10 minutes for defendant's rebuttal. So it's

20 defendants first followed by plaintiffs followed by defendant's

21 rebuttal followed by what could be a ruling from the Court.

22

Having said all of .that, are you available or would

23 you know if the attorneys who would argue this are available on

24 either November 24th or the 25th, or would you want to do it

25 later? And if you take a later date, which would be in

Kathleen M. Fennell. Off~cial Renorter

12

1 December, all I can tell you is my trial schedule is such that

2 I think we would do this in the evening.

3

MS. NALE: Okay, I was not prepared for what you have

4 just presented --

5

THE COURT: I didn't think you would be.

6

MS. NALE:

so I don't know what either

7 Mr. Salpeter's or Mr. Kriss's schedule would be. I imagine it

8 will be Mr. Kriss who will argue the motions. And I'm

9 reluctant to commit him without at least attempting to reach

10 him and then reporting back perhaps to the Court.

11

THE COURT: Sure.

12

MS. NALE: It may need to be later.

13

A couple questions, though. Is there some type of

14 brief that we're going to receive?

15

THE COURT: No, no, there would not be a brief. It

16 would be basically you give me the case law three days before.

17 I've read everything that's been submitted. Everything would

18 then be done orally. If I decide that further briefing is

19 necessary before I issue a ruling, I'll then take it.

20

But right now, these are my preliminary conclusions,

21 and I think they're pretty close to the money, and I'm giving

22 you just a chance, rather than enter an order, I'm giving you a

23 chance to tell me why I'm wrong.

24

MS. NALE: Which is fine, Your Honor. I have no

25 problem with that, not that I like to phrase my response that

Kathleen M. Fennell, Official Reporter

13

1 way.

2

THE COURT: Yeah.

3

MS. NALE: But so that I can go back and make a little

4 more sense when I return to the office as to what exactly it is

5 you'd like addressed.

6

THE COURT: From Citibank's perspective, I'd like to

7 see any case law that would allow for the granting of a summary

8 judgment with this type of allegation; that is, a class-wide

9 allegation of discriminatory lending by a bank. I'd like to

10 see the cases where judges have granted summary judgment.

11 Anything close to this I would like to see, and you can assume

12 that I've looked at all the cases that you've cited so far, but

13 I'd like to see if you have something that's even more

14 comparable.

15

MS. NALE: Okay. And with regard to Mr. Bradford,

16 again so I'm clear, I understand your ruling with regard to

17 Miss Shlay, your preliminary conclusion.

18

On Mr. Bradford when you say he would only be

19 permitted to testify as to the charts and not an ultimate

20 conclusion--

21

THE COURT: He would testify as a summary witness;

22 that is, somebody that went and gathered these documents. He

23 could testify how he decided which loan files to pull, and he

24 would testify, I think it's Rule 1006 allows for summary

25 testimony by a witness who would take voluminous documents and

Kathleen M. Fennell, Official Reporter

14

1 summarize them into a chart and explain his findings.

2

MS. NALE: Okay. And does that apply also to his

3 findings with regard to his discussion of the individual loan

4 files identified in his report?

5

THE COURT: I think it would.

6

MS. NALE: Okay.

7

MS. CLAYTON: with regard to the schedule, Your Honor,

8 the only date that doesn't work for me is November 25th. I

9 have a deposition that day, but the 24th would be okay or an

10 evening in December.

11

MS. NALE: I would, you know, without having spoken to

12 Mr. Kriss, I can't imagine, unless there's a conflict, why that

13 wouldn't be okay. I'd like, however, to extend the courtesy to

14 place an appropriate phone call, find out. If I may, could we

15 call back?

16

THE COURT: Let me do this. I'm going to schedule it

17 for 3:00 o'clock on the 24th; and if we need to change it,

18 we'll change it. But as I said, you'll probably then get a

19 replacement of some evening in December. We're only going to

20 take an hour, so if we start at 4:30, we should be done well

21 before 6:00.

22

But that will probably be a replacement because I have

23 a heavy, I don't know how I managed to do this, but I have a

24 heavy December trial calendar. So I'll probably give you an

25 evening, and then if a trial goes away, we'll probably then

Kathleen M. Fennell, Official Reporter

15

1 slot it to something more reasonable. But we're going to do

2 that, and let's see what happens. In the meantime, you can let

3 me know if there are any developments in this case.

4

MR. MINER: Thank you.

5

MS. CLAYTON: Thank you.

6

MS. NALE: Thank you, Your Honor.

7

(Which were all the proceedings heard.)

8

CERTIFICATE

9

I certify that the foregoing is a correct transcript from

10 the record of proceedings in the above-entitled matter.

M. Fenne I Court Reporter 13

!I-/~ -92

Date

I

14

15

16

17

18

19

20

21

22

23

24

25

Kathleen M. Fennell, Official Reporter

 
 --.-._---~-----~~~-.-.. _._--------------~.

IN THE UNITED STATES DISTRlCT COURT FOR THE NORTHERN DISTRlCT OF ILLINOIS
EASTERN DIVISION

.n- eL (.

:~\ ~~:r

\

SELMA S. BUYCKS-ROBERSON; CALVIN R. )

ROBERSON; and RENEE BROOKS, on behalf )

of themselves and others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

No. 94 C 4094 Judge Castillo
Magistrate Judge Lefkow

PRELIMINARY APPROVAL ORDER

This cause having come before the Court to be heard on the parties' Joint Motion for

Preliminary Approval of Settlement Agreement, and the Court being duly advised in the premises,

IT IS HEREBY ORDERED THAT:

1. The proposed settlement that is contained in the Settlement Agreement dated

January 9, 1998 is preliminarily approved and a hearing to consider final approval, upon notice,

shall be held as set forth herein.

2. For purposes of settlement only, the following Settlement Class is hereby certified:

All persons: (i) who are African-American; and (ii) who applied for a first mortgage home purchase or refinance loan with Citibank for property located in Cook, DuPage, Lake or McHenry County, Illinois; and (iii) whose request for such a loan was turned down by Citibank at any time during the period from July 6, 1992 to December 31, 1995.

3. Plaintiffs Selma Buycks-Roberson, Renee Brooks and Calvin Roberson are deemed

adequate representatives and are appointed as Class Representatives.

4. The Court approves Judson Miner, Fay Clayton and John Wickert as counsel for

the Settlement Class ("Class Counsel").

~r\

- - - -- - - - - - - - ------
5. There has been no finding of a pattern or practice of discrimination at Citibank. 6. A hearing (the "Settlement Hearing") will be held before this Court on April 20, 1998 at 1:00 p.m., in Courtroom 2319 in the Federal Building, 219 South Dearborn, Chicago, Illinois 60604, for the purpose of determining whether the proposed settlement on the terms and conditions provided for in the Settlement Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class and should be approved by the Court and whether a final judgment should be entered thereon. The Court shall also consider an application by Class Counsel for an award of attorneys' fees and expenses at that time. Class Counsel shall submit their fee petition to the Court on or before May 4, 1998, and, as provided in the Settlement Agreement, the fee petition will not exceed $950,000.00. The Settlement Hearing may be adjourned by the Court from time to time without further notice to the Settlement Class. 7. The Court approves the proposed Class Notice and finds that the Notice substantially in the form set forth in the Settlement Agreement and Exhibit A to this Order meets the requirements of Federal Rule of Civil Procedure 23, due process and federal law and shall constitute due and sufficient notice to all persons entitled thereto. 8. Defendant shall cause the Notice to be sent as follows:
a. On or before February 14, 1998, Defendant shall cause copies of the Notice of Pendency of Class Action and Proposed Settlement and Hearing (the "Notice") substantially in the form set forth in Exhibit A to this Order to be mailed to all Class Members at their last known addresses as on file with Citibank. Such notice is the only notice required to be given to members _of the Class, and this notice satisfies the requirement of due process and federal law.
-2-

b. At or prior to the Settlement Hearing, counsel for Defendant shall file an affidavit confirming that Defendant has mailed the Notice in accordance with subparagraph 8(a) above. All expenses of such Notice shall be paid by the Defendant. 9. Members of the Settlement Class shall be bound by all determinations and judgments entered in this Action, whether favorable or unfavorable, unless such persons shall mail by first class a written request for exclusion from the Settlement Class to Michael W. Dobbins, the Clerk of the Court, at a post office box to be obtained by Class Counsel. Exclusion requests must be postmarked by no later than March 16, 1998. Plaintiffs' Counsel shall obtain all exclusions and objections from the post office box at 5:00 p.m. on March 18, 1998 and again on March 23, 1998 and respectively file them with the Court and serve them on counsel for the defendant, Alan N. Salpeter, Robert J. Kriss, and Lucia Nale, Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603. 10. Any Class Member who has not requested exclusion in the manner provided in Paragraph 9 of this Order may appear and show cause why the settlement should not be approved as fair, reasonable and in the best interests of the Settlement Class, why a judgment should not be entered thereon or why attorneys' fees should not be paid; provided that no Settlement Class Member or any other person shall be heard or be entitled to contest the approval of the terms and conditions of the proposed settlement or, if approved, the judgment to be entered thereon approving the same, unless by no later than March 16, 1998 that person has delivered (a) a notice of intention to appear; (b) evidence of membership in the Settlement Class (such as a copy of his or her loan application or loan declination letter); (c) a detailed written statement of such person's specific objection(s) to such matter(s); and (d) the grounds therefor and the reasons for such
-3-

person desiring to appear and. be heard, as well as all documents and writings which such person desires the Court to consider, and caused said materials to be delivered by March 16, 1998 with due proof of service, to the post office box to be obtained by Plaintiffs' Counsel who shall then file said materials with the Court and serve them on counsel for the Defendant, listed in Paragraph 9 above.
11. Any member of-the Settlement Class who does not object in the manner provided in Paragraph 10 shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Settlement as incorporated in the Settlement Agreement and to the award to Class Counsel of fees, expenses and costs, and shall be bound by any judgment or order entered herein. The Clerk of the Court shall make available for review by all Settlement Class Members and/or their counsel a copy of the Court file containing all documents that have been filed in this Action to date.
12. All pretrial proceedings in this Action are stayed and suspended until further order of the Court. Pending the final determination of the fairness, reasonableness and adequacy of the proposed settlement, no Member of the Settlement Class (or any of their present or former agents, attorneys, representatives, trustees, heirs, executors, administrators, predecessors, successors or assigns) or any other person may institute, commence, or prosecute any action or proceeding involving any claim which has been or could have been asserted in this Action, that relates in any way to applications by Class Members or any African-American for a first mortgage home purchase or refmance loan, or that arises out of or is in any way related to any acts, facts, transactions, representations, omissions or other subject matter set forth, alleged, embraced or otherwise referred to in the Complaint or the Settlement.
-4-

"

13. In the event that the proposed Settlement as provided in the Settlement Agreement is not approved by the Court, or if for any other reason the proposed settlement shall not become fmal and unappealable, the Settlement shall, without any further act by any party thereto, become null and void and of no further force and effect, and shall not be used or referred to for any purpose whatsoever. In such event, the Settlement and all negotiations and proceedings relating thereto shall be withdrawn without prejudice as to the rights of any and all parties thereto, who shall be restored to their respective positions existing prior to the date of the Settlement.
14. The Court retains jurisdiction over this Action to consider all further applications arising out of or connected with the proposed Settlement, including enforcement of the Settlement.

Dated: January 15, 1998

ENTER:r

_

Judge Ruben Castillo

-5-

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SELMA S. BUYCKS-ROBERSON; CALVIN R. )

ROBERSON; and RENEE BROOKS, on behalf )

of themselves and others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

No. 94 C 4094 Judge Castillo
Magistrate Judge Lefkow

NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED CLASS SETTLEl\1ENT AND HEARING

IF YOU APPLIED FOR A HOl\1E PURCHASE OR REFINANCE FIRST MORTGAGE LOAN WITH CITffiANK FEDERAL SAVINGS BANK, AND CITffiANK TURNED DOWN YOUR LOAN REQUEST AT ANY TIl\1E DURING THE PERIOD FROM JULY 6, 1992 THROUGH DECEMBER 31, 1995, PLEASE READ THIS NOTICE CAREFULLY. IT MAY AFFECT YOUR RIGHTS.

IF YOU HAVE ANY QUESTIONS ABOUT THIS NOTICE OR THE SETTLEMENT, PLEASE CONTACT CLASS COUNSEL LISTED IMl\1EDIATELY BELOW:

Judson H. Miner Miner, Barnhill & Galland 14 West Erie Street Chicago, IL 60610 (312) 751-1170

Fay Clayton John Wickert Robinson, Curley & Clayton, P.C. 300 South Wacker Drive Suite 1700 Chicago, IL 60610 (312) 663-3100

****
This Notice is a notification that you may be a member of a plaintiff class in a lawsuit brought by Selma Buycks-Roberson, Renee Brooks and Calvin Roberson ("Plaintiffs") on behalf of a plaintiff class against Citibank, Federal Savings Bank ("Citibank"). This is not a notification that you have been sued.

"
I. DESCRIPTION OF THE LITIGATION
This lawsuit is pending in the United States District Court for the Northern District of Illinois (the "Court") against Citibank (the "Defendant"). The lawsuit charges that Citibank unlawfully discriminated against African-American applicants seeking first mortgage home purchase or refinance loans for property located in Cook, Lake, DuPage or McHenry County, IIIinois, on the basis of their race or the racial composition of their neighborhoods. The lawsuit seeks damages, injunctive relief, attorneys' fees and costs from Defendant.
Citibank denies that it discriminated against any loan applicant on the basis of race and denies that it has otherwise acted unlawfully in the conduct of its mortgage business. Citibank has contested all of the Plaintiffs' claims.
Plaintiffs and Class Counsel have conducted an investigation into the relevant facts and law and recognize the difficulty, expense, and time consuming nature of such complex litigation and the uncertainty inherent in predicting the outcome of this action. Based on all of these considerations, Plaintiffs and Plaintiffs' Class Counsel have concluded that the Settlement with Defendant (the "Settlement") is fair, reasonable and in the best interests of the Plaintiffs and the Class Members, as defined below..
The Court has made no fmding of liability against Citibank or in favor of Plaintiffs. All parties and the Court have agreed that you should know that there has been no finding of a policy of discrimination by Citibank in this lawsuit. Citibank, denying any wrongdoing, has agreed to settle the lawsuit in order to avoid the costs and business disruption of further litigation and to provide additional encouragement to African-Americans to apply for, and obtain, loans from Citibank. This Notice should not be understood as an expression of any opinion by the Court as to the merits of any of the claims or defenses asserted by Plaintiffs or Citibank.
II. THE SETTLEMENT CLASS
For purposes of settlement only, the Court has certified the following Settlement Class (the "Settlement Class"):
AIl persons: (i) who are African-American; and (ii) who applied for a first mortgage home purchase or refinance loan with Citibank for property located in Cook, DuPage, Lake or McHenry County, IIIinois; and (iii) whose request for such a loan was turned down by Citibank at any time during the period from July 6, 1992 to December 31, 1995.
Persons who meet the above description are referred to as "Settlement Class Members" or "Class Members." The Court has certified as Settlement Class Representatives the Plaintiffs, Selma Buycks-Roberson, Calvin Roberson and Renee Brooks (the "Settlement Class
2

Representatives"), and has preliminarily approved the attorneys listed on page one as counsel for the Class (" Class Counsel ").
III. SUMMARY OF SETTLEMENT TERMS
The proposed Settlement is intended to settle all claims of Settlement Class Members against Citibank that have been alleged, could have been alleged or could hereafter be alleged up until the date of final judgment, under federal, state or local law, or common law, relating to any application by any Class Member for a first mortgage home purchase or refinance loan. This includes, for example, any and all claims relating to Citibank's mortgage loan practices or policies and claims alleging that Citibank discriminated against mortgage loan applicants on the basis of their race. If you do not exclude yourself from the Settlement under the procedure described below, and the Settlement is approved by the Court and the approval becomes final, you will release all such claims and will be entitled to receive the financial benefits described below. If the Settlement is not approved by the Court, or does not become final for any other reason, the litigation will continue and the benefits described in this notice will not be available to the class.
IV. BENEFITS UNDER THE PROPOSED SETTLEMENT
The Court on January 15, 1998 entered a Preliminary Approval Order in which it found preliminarily that the proposed Settlement is fair, reasonable and adequate to the Settlement Class. Citibank is offering the benefits provided under the Settlement in order to provide additional encouragement to African-Americans to apply for, and obtain, loans from Citibank. The following is a description of the benefits which will be available to the Settlement Class members if the Court enters a final judgment approving the Settlement:
1. BENEFITS FOR ALL CLASS MEMBERS. Citibank will undertake efforts to organize a lending consortium consisting of Citibank and several other lending institutions in the Chicagoland area to assist low to moderate income applicants in obtaining mortgages. The program will be modeled after existing programs in other cities and will stay in effect for two years. The goal of the consortium will be to establish a review process whereby denied applicants of a participating lender can contact a loan committee established by the consortium in order to have the committee reevaluate their mortgage loan application to determine if the loan request can be approved under the loan policies and programs of one of the other lending institutions participating in the consortium. If such a lending consortium cannot be formed, Citibank will establish an independent mortgage counseling service for Citibank applicants who are denied mortgage loans to assist them in subsequently obtaining mortgage loans from Citibank. The goal of the counseling service program will be to provide counseling to low to moderate income mortgage applicants whose loan applications have been turned down to assist them in clearing up credit problems or other deficiencies that caused their application to be denied. Citibank will choose an independent mortgage counselor that is acceptable to Class Counsel. The independent mortgage counseling service will stay in effect for two years.
3

2. FINANCIAL BENEFITS FOR ALL SETTLEMENT CLASS MEMBERS. Under the Settlement, financial benefits available to Settlement Class Members who do not opt-out of the Settlement varies depending upon whether such Members are eligible for membership in either Benefit Class A, Benefit Class B, or Benefit Class C, as described herein. All Settlement Class Members who do not opt-out of the Settlement are members of Benefit Class A and are also entitled to the non-monetary benefits available to the entire Settlement Class, as set forth in Paragraph 1, above. Settlement Class Members eligible for membership in either Benefit Class B or Benefit Class C who do not opt out of the Settlement are entitled to the relief available to their particular Benefit Class (as described below), as well as the relief available to Benefit Class A and the relief available to the entire Settlement Class, as set forth in Paragraph 1, above.
3. FINANCIAL BENEFITS FOR BENEFIT CLASS A. Benefit Class A comprises all Settlement Class members who do not exclude themselves from the Settlement Class. Benefit Class A members will be entitled to have the application fee waived, on a one-time basis, if they apply for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement. To qualify to obtain the application fee waiver, Benefit Class A Members must submit the Proof of Claim provided at the end of this Notice, postmarked on or before March 16, 1998. If the Court enters a final judgment approving the Settlement, Settlement Class Members who have timely submitted postmarked Proofs of Claim will be mailed a letter from Citibank advising them of the particular Benefit Class that they qualify for and setting forth the process to be followed by them in order to claim and receive their benefits. Benefit Class A members will have two years from the date of the Final Judgment approving the Settlement within which to take advantage of and use their Application Fee waiver at Citibank.
4. FINANCIAL BENEFITS FOR MEMBERS OF BENEFIT CLASSES BAND C. Citibank will create a Benefits Fund in the amount of $360,000 to be distributed and disbursed to the Members of Benefit Class B and Benefit Class C in the manner set forth below. The amount of the Benefits Fund is fixed and will not exceed $360,000. The actual amounts received by Members of Benefit Classes B and C may vary depending upon the total number of qualified Members in Benefit Classes Band C. If the total amount available in the Benefits Fund is not claimed by Benefit Class B and C Members within two years of the date on which the Court enters a final judgment approving the Settlement, any assets remaining in the Benefits Fund will be used by Citibank within three years after the date of final judgment approving the Settlement to provide additional funding for outreach, educational or other programs designed to assist minorities in obtaining loans from Citibank.
PLEASE CHECK THE PROOF OF CLAIM FORM ATTACHED TO THIS NOTICE TO DETERMINE WHETHER OR NOT YOU ARE IN BENEFIT CLASS B OR C
In order to be eligible to claim the benefits available to members of Benefit Class B or C, you must submit the Proof of Claim provided at the end of this Notice, postmarked on or before March 16, 1998. If the Court enters Final Judgment approving the Settlement, Benefit
4

Class Members who have timely submitted postmarked Proofs of Claim will be mailed a letter from Citibank advising them which Benefit Class they qualify for and explaining the process that they should follow in order to claim and receive some of the benefits described below for which they may be eligible. Benefit Class B and Benefit Class C Members will have two years from the date of the Final Judgment approving the Settlement within which to claim any benefits to which they be entitled to from Citibank. Members of Benefit Class Band C also qualify as Members of Benefits Class A and are entitled to one-time Application Fee Waiver, as described in paragraph 3, above.
5. MEMBERSHIP IN BENEFIT CLASS B Benefit Class B comprises all Settlement Class Members who do not exclude themselves from the Settlement Class and who (a) submitted an application for a first mortgage home purchase loan which was denied by Citibank at any time during the period from July 6, 1992 through December 31, 1995 or submitted an application for a first mortgage refinance loan which was denied by Citibank at any time during the period from July 6, 1992 to December 31, 1992; and (b) had a "Designated Credit Score," as that term is defmed in the Settlement Agreement, at the time they originally applied for a first mortgage loan with Citibank.
6. CONSEQUENCES OF BEING IN BENEFIT CLASS B. Qualified members of Benefit Class B who:
(a) re-app1y for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the "Lending Criteria," as that term is defined in Paragraph 9, at the time they reapply, and are approved for a first mortgage loan by Citibank and accept the loan, are entitled to cash or credits against closing costs in an amount between $2,500.00 and $3,250.00 depending on the number of Class Members who timely file Proofs of Claim; or
(b) re-app1y for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the "Lending Criteria," as that term is defmed in Paragraph 9, at the time they reapply, and are denied a first mortgage loan by Citibank, are entitled to a cash payment in an amount between $2,500.00 and $3,250.00 depending on the number of Class Members who timely file Proofs of Claim; or
(c) re-app1y for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the "Lending Criteria," as that term is defined in Paragraph 9, at the time they reapply, and are approved for a first mortgage loan by Citibank but decline the loan, are entitled to no benefits under the Settlement, except as provided in paragraph (d), below; or
5

,,
(d) Benefit Class B Members who would otherwise qualify for a first mortgage loan under paragraph (c), but have interest rates on their existing first mortgage loans more favorable than that available at Citibank at the time they seek to re-apply with Citibank for a first mortgage loan, may instead apply for a home equity loan, rather than a first mortgage loan, with Citibank. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved by Citibank and accepted by such Member, such Member is entitled to a cash payment or closing cost credits in the amount of $1,625.00. If such Member does not qualify for a home equity loan under existing Citibank standards and the loan is denied, such Member is entitled to a cash payment in the amount of $1,625.00. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved but the "Member declines the loan, the Member is entitled to no benefits under the Settlement.
No Class Member may claim benefits under this paragraph (d) if at the time they apply for the home equity loan, Citibank has already approved a loan application submitted by them to Citibank under this Settlement for a first mortgage loan. In such case, the Class Member will be subject to paragraph (a) above should they accept the first mortgage loan approved by Citibank and receive no benefits under the Settlement should they decline the first mortgage loan. In such cases where a Class Member applies under the Settlement to refinance an existing first mortgage and the interest rate on their existing mortgage is more favorable than that Citibank makes available to the Class Member at the time they so apply, then before Citibank begins to process the refinance application, it will advise the Class Member of their option under this provision to instead apply for a home equity loan.
(e) Members of Benefit Class B who do not satisfy the Lending Criteria at the time they re-apply for a first mortgage loan with Citibank, are entitled to a cash payment of $1,625.00, unless Citibank approves their loan, in which case such members will be subject to paragraphs (a) through (d), above.
7. MEMBERSHIP IN BENEFIT CLASS C. Benefit Class C comprises all Settlement Class Members who do not exclude themselves from the Settlement Class and who (a) submitted an application for a first mortgage refinance loan which was denied by Citibank at any time during the period from January 1, 1993 to December 31, 1995; and (b) had an "Designated Credit Score," as that term is defined in the Settlement Agreement, at the time they originally applied for a first mortgage loan with Citibank.
8. CONSEQUENCES OF BEING A MEMBER OF BENEFIT CLASS C. Qualified members of Benefit Class C who:
(a) re-apply for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the
6

_1_.. " .l.
"Lending Criteria," as that tenn is defined in Paragraph 9, at the time they reapply, and are approved for a first mortgage loan by Citibank and accept the loan, are entitled to cash or credit against closing costs in an amount between $770.00 and $1,000.00 depending on the number of Class Members who timely file Proofs of Claim; or
(b) re-apply for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the "Lending Criteria," as that tenn is defined in Paragraph 9, at the time they reapply, and are denied a first mortgage loan by Citibank, are entitled to a cash payment in an amount between $770.00 and $1,000.00 depending on the number of Class Members who timely file Proofs of Claim; or
(c) re-apply for a first mortgage loan with Citibank at any time within two years from the date of the final judgment approving this Settlement, satisfy the "Lending Criteria," as that tenn is defined in Paragraph 9, at the time they reapply, and are approved for a loan by Citibank but decline the loan, are entitled to no benefits under the Settlement, except as provided in paragraph (d), below.
(d) Benefit Class C Members who would otherwise qualify for a first mortgage loan under paragraph (c), but have interest rates on their existing fIrst mortgage loans more favorable than that available at Citibank at the time they seek to re-apply with Citibank for a first mortgage loan, may instead apply for a home equity loan, rather than a fIrst mortgage loan, with Citibank. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved by Citibank and accepted by such Member, such Member is entitled to a cash payment or credit against closing costs in an amount between $770.00 and $1,000.00, depending on the number of Class Members who timely file· Proofs of Claim. If such Member does not qualify for a home equity loan under existing Citibank standards and the loan is denied, such Member is entitled to a cash payment in an amount between $770.00 and $1,000.00 depending on the number of Class Members who timely file Proofs of Claim. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved but the Member declines the loan, the Member is entitled to no benefits under the Settlement.
No Class Member may claim benefits under this paragraph (d) if at the time they apply for the home equity loan, Citibank has already approved a loan application submitted by them to Citibank under this Settlement for a first mortgage loan. In such case, the Class Members will be subject to paragraph (a) above should they accept the first mortgage loan approved by Citibank and receive no benefits under the Settlement should they decline the first mortgage loan. In such cases where a Class Member applies under the Settlement to refinance an existing first mortgage and the interest rate on their existing
7

mortgage is more favorable than that Citibank makes available to the Class Member at the time they so apply, then before Citibank begins to process the refInance application, it will advise the Class Member of their option under this provision to instead apply for a home equity loan.
(e) Members of BenefIt Class C who do not satisfy the Lending Criteria at the time they re-apply for a first mortgage loan with Citibank, are entitled to a cash payment in an amount of $500.00, unless Citibank: approves their loan, in which case such members shall be subject to paragraphs (a) through (d), above.
9. LENDING CRITERIA. As used in the Settlement Agreement, the term "Lending Criteria" means (1) a Credit Score of 785 or higher; (2) a bank-end ratio not exceeding 42 percent; and (3) a loan-to-value ratio not exceeding 95 percent. "Credit Score" refers to a computerized point scoring system that is proprietary to Citibank and used by it to assess and rate a loan applicant's credit. "Back end ratio" is calculated by dividing a person's total monthly obligations by their gross monthly income. "Loan to value ratio" is calculated by dividing the requested loan amount by the lower of either the appraised value or the contract price of the loan property in question.
10. COMBINING BENEFITS. Benefit Class Members may not combine any benefit received under the Settlement with any other benefits, coupons or discounts that Citibank offers, issues or recognizes.
11. RELIEF WITH RESPECT TO THE CLASS REPRESENTATIVES. In recognition of the efforts of the Class Representatives on behalf of the Class, if a final judgment is entered approving the Settlement, Citibank will pay them an aggregate incentive award of $60,000.
12. PAYMENT TO PLAINTIFFS' CLASS COUNSEL. Citibank has agreed to create a fund, up to but not exceeding $950,000, to pay for all attorneys' fees, costs, and expenses awarded to Plaintiffs' Class Counsel by the Court. Class Members will not have to pay anything to Plaintiffs' Class Counsel.
v. RELEASE OF CLAIMS
All Class Members who do not exclude themselves from the Settlement under the procedures described below will be entitled to the benefits described above and will not be allowed to sue Citibank: alleging that Citibank discriminated against them based on their race in the handling or disposition of any fIrst mortgage loan request made to Citibank at any time from the beginning of time up to and including the date of final judgment approving the Settlement.
8

VI. HOW TO OBTAIN FINANCIAL BENEFITS FROM OR OPT-OUT OF THE SETTLEMENT
How to Obtain Financial Benefits Under the Settlement. You must submit, postmarked by no later than March 16, 1998, the Proof of Claim provided at the end of this Notice if you wish to qualify for the benefits described in Section IV.
You May Request Exclusion From The Financial Benefits Portion of the Settlement. If you do not want to receive the benefits described in Section IV and you do not want to provide the release described in Section V, you must request to be excluded (that is, to "opt out"), from the Settlement. IF YOU WISH TO OPT OUT OF THE FINANCIAL BENEFITS PORTION OF THE SETTLEMENT, YOU MUST MAIL A NOTICE OF EXCLUSION TO: MICHAEL W. DOBBINS, CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, P.O. BOX 6642, CHICAGO, ILLINOIS, 60680-6642. THE EXCLUSION REQUEST MUST BE RECEIVED BY THE CLERK POSTMARKED BY NO LATER THAN MARCH 16, 1998. PLEASE WRITE THE WORDS "CLASS EXCLUSION NOTICE" ON THE LOWER LEFT CORNER OF THE FRONT OF THE ENVELOPE IN WHICH YOU REQUEST EXCLUSION. If you choose to exclude yourself from the Financial Benefits Portion of the Settlement, any individual claims that you might have against Citibank for money damages will not be affected by this Settlement. However, if you exclude yourself, you will not be able to share in the Settlement. You will remain free to pursue any individual claims for money damages that you may have against Citibank.
The proposed Settlement provides the option for Citibank to withdraw from the Settlement if the number of Class Members specified in a separate letter agreement dated December 3, 1997 between Class Counsel and Citibank's counsel exclude themselves from the Class. If Citibank elects to withdraw, none of the benefits provided by the Settlement will be distributed and the litigation will continue.
r
VII. HEARING
The Court will hold a hearing in Courtroom 2319 of the United States District Court for the Northern District of Illinois, Federal Building, 219 South Dearborn Street, Chicago, Illinois 60604, on April 20, 1998, at 1:00 p.m., to determine whether the proposed Settlement should be approved as fair, adequate and reasonable and to determine the amount of attorneys' fees and litigation costs and expenses that should be awarded to Plaintiffs' Class Counsel. The hearing may be continued without further notice. It is not necessary for you to appear at the hearing.
Any Member of the Class who has not elected to be excluded from the Class may object to approval of the proposed Settlement or to Plaintiffs' Class Counsel's application for attorneys' fees and reimbursement of litigation costs and expenses, and may appear at the hearing, individually or through the Class Member's own counsel, but only if such Class Member has submitted a written objection and notice of intention to appear. Any such objections must be
9

filed with Michael W. Dobbins,Clerk of the United States District Court for the Northern District of Illinois, P.O. Box 6642, Chicago, Illinois 60680-6642, by no later than March 16, 1998. Any objections shall state each specific reason, if any, in support of the objection, and any legal authority for such objection shall be cited. Such objections shall be accompanied by supporting papers and briefs and evidence of membership in the Class, in the form of a photocopy of your loan application or loan declination letter. It is important to note that the Settlement can only be approved or rejected as written; the Court cannot modify the terms of this Settlement to respond to particular objections.

The above is only a summary of the basic terms of the proposed Settlement. The precise terms and conditions of the Settlement are contained in the Settlement Agreement on file with the Clerk of the United States District Court for the Northern District of Illinois.

YIn. PROOF OF CLAIM

If you wish to participate in the Financial Benefits provided by the Settlement and receive the notifications described in Section IV, you must fill out the attached Proof of Claim and submit it to the address listed thereon so that it is postmarked by no later than March 16, 1998.

IX. ADDITIONAL INFORMATION

The pleadings and other records in this litigation, including copies of the Settlement Agreement and Plaintiffs' Class Counsel's application for attorneys' fees and reimbursement of litigation costs and expenses, may be examined at any time during regular office hours at the Office of the Clerk of the United States District Court for the Northern District of Illinois, Federal Building, 219 South Dearborn Street, Chicago, Illinois 60604. If you need additional information, you should write to Counsel for the Class:

Judson H. Miner Miner, Barnhill & Galland 14 West Erie Street Chicago, IL 60610

Fay Clayton John Wickert Robinson, Curley & Clayton, P.C. 300 South Wacker Drive Suite 1700 Chicago, IL 60610

PLEASE DO NOT TELEPHONE THE JUDGE OR THE CLERK OF THE COURT. THEY ARE NOT ALLOWED TO ANSWER YOUR QUESTIONS.

10

Dated: February 14, 1998

BY ORDER OF THE COURT.
CLERK OF THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS Federal Building 219 South Dearborn Street Chicago, Illinois 60604

11

!...

'. I

PROOF OF CLAIM
To: MICHAEL W. DOBBINS CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS P. O. BOX 6642 CHICAGO, IL 60680-6642
From: Name and Address:

Dear Class Member:
Citibank's records indicate that you applied for a first mortgage home purchase or refInance loan on property located in Cook, Lake, DuPage or McHenry County and the loan was denied by Citibank at some time between July 6, 1992 and December 31, 1995. With this Proof of Claim you have received a "Notice of Pendency of Class Action, Proposed Class Settlement and Hearings." The records of Citibank indicate that you belong to Class A and Class __ (Either B or C) as defined in the Notice.
In order to obtain financial benefits under the Settlement, you must submit this form to the above address so that it is postmarked by no later than March 16, 1998. Also, supply the information requested below.
1. At the time I applied at Citibank for the mortgage loan that was turned down my co-applicants (if any) on the mortgage were:

(Name of first co-applicant)

(Name of second co-applicant)

2. My Social Security Number is: - - - - - - - -

My First Co-Applicant's Security Number is:

_

My Second Co-Applicant's Security Number is:

_

12

[CLASS COUNSELS' LETTERHEAD]
TO: SETTLEMENT CLASS MEMBERS I am attaching a Notice of a Settlement with Citibank Federal Savings Bank. Please read
this Notice carefully, as it may affect your rights. Please contact me at the above number should you have any questions about this Notice. Sincerely yours, (Class Counsel)
14

_1_

iI

3. I currently have a home mortgage and the current rate of interest on that mortgage is

I wish to be included in this settlement.

Signature
IN ORDER TO QUALIFY TO OBTAIN FINANCIAL BENEFITS UNDER THE SETTLEMENT, YOU MUST SUBMIT THIS FORM TO THE ABOVE ADDRESS SO THAT IT IS POSTMARKED BY NO LATER THAN MARCH 16, 1998.

13

 
 COURT~·':lj o IN THE UNITED STATES DISTRICT

C i'r:.~ z... :.~.;

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SELMA S. BUYCKS-ROBERSON; CALVIN R. )

ROBERSON; and RENEE BROOKS, on behalf )

of themselves and others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

No. 94 C 4094 Judge Castillo

. '~)S .. \..:: ~:;,~'RT

Magistrate Judge Lefkow

SETTLEMENT AGREEMENT

This Settlement Agreement is entered into as of this 9th day of January, 1998 by the

plaintiffs in the above entitled action, Selma Buycks-Roberson, Renee Brooks and Calvin

Roberson, and defendant Citibank, Federal Savings Bank ("Citibank"), by and through their

respective undersigned attorneys.

DEFINED TERMS

1. Acts. The federal statutes commonly known as the Equal Credit Opportunity Act,

the Fair Housing Act and Sections 1981 and 1982 of the Civil Rights Act are referred to herein

as the "Acts."

2. Agreement. This Settlement Agreement is referred to herein as the "Agreement."

3. Action. The lawsuit entitled Selma Buycks-Roberson, et al., plaintiffs, v.

Citibank Federal Savings Bank, defendant, pending in the United States District Court for the

Northern District of Illinois, Case No. 94 C 4094, is referred to herein as the "Action."

4. Settlement Class. Subject to the Court's approval, and for purposes of this Settlement only, the following class shall be certified in this Action (the "Class" or "Settlement Class") as follows:
All persons (i) who are African-American; and (ii) who applied for a first mortgage home purchase or refinance loan with Citibank for property located in Cook, DuPage, Lake or McHenry County, Illinois; and (iii) whose request for such a loan was turned down by Citibank at any time during the period from July 6, 1992 to December 31, 1995. Persons described above are referred to herein as "Settlement Class Members" or "Class Members." 5. Class Notice. The "Notice of Pendency of Class Action, Proposed Class Settlement and Hearing," in substantially the same form as that attached to this Agreement as Exhibit A, is referred to herein as the "Class Notice." 6. Class Counsel. Judson H. Miner of the law firm of Miner, Barnhill & Galland, and Fay Clayton and John Wickert of the law firm of Robinson, Curley & Clayton, P.C., are referred to herein as "Class Counsel." 7. Complaints. The Complaint filed in this Action on July 8, 1994, the First Amended Complaint fIled on December 29, 1994, and the Second Amended Complaint filed on July 13, 1995 are referred to herein as the "Complaints." 8. Court. The United States District Court for the Northern District of Illinois, Eastern Division, is referred to herein as the "Court." 9. Effective Date. The "Effective Date" of this Agreement shall be thirty (30) days after the entry of Final Judgment, as that term is defined herein.
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10. Final Approval. As used herein, "Final Approval" means the issuance by the Court of a final, appealable order which is the same in substance as the Final Judgment and Order of Dismissal attached hereto as Exhibit B, which, among other things, approves this Settlement pursuant to Federal Rule of Civil Procedure 23(e).
11. Final Judgment. A judgment in this action is a "Final Judgment," as that term is used herein, only after both of the following have occurred: (a) the Court gives Final Approval to the Agreement by executing an order which is the same in substance as the form of Final Judgment and Order of Dismissal attached hereto as Exhibit B; and (b) the time has expired in which to seek review or appeal of such order without any review or appeal having been taken or, if such review or appeal is taken, such review or appeal shall have been finally determined (subject to no right of further review or appeal) by the highest court before which such review or appeal can be sought and allowed, and such review or appeal shall have been resolved in such manner as to permit the consummation of the Settlement effected by this Agreement in accordance with all of its terms and provisions.
12. Citibank Federal Savings Bank. Citibank Federal Savings Bank is herein referred to as "Citibank."
13. Plaintiffs and Class Representatives. The terms "Plaintiffs" and "Class Representatives," as used herein, mean Selma Buycks-Roberson, Renee Brooks and Calvin Roberson.
14. Preliminary Approval. "Preliminary Approval" refers to the Court's determination that this Settlement is within the range of possible approval and, therefore, that
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a Notice should be sent to the Class and a hearing should be held with respect to the fairness of the Settlement.
15. Preliminary Approval Order. As used herein, "Preliminary Approval Order" means the issuance of an order which is the same in substance as the Preliminary Approval Order attached hereto as Exhibit C.
16. Released Claims. "Released Claims" shall have the meaning set forth in Paragraph 39.
17. Released Parties. "Released Parties" means Citibank Federal Savings Bank, its past, present or future predecessors, successors, assigns, subsidiaries, divisions, affiliates and parent corporations, including but not limited to Citicorp Mortgage, Inc, and their past, present or future directors, officers, employees, heirs, executors, administrators, representatives, shareholders, agents, accountants, attorneys, and any and all predecessors, successors and assigns of any of the foregoing.
18. Settlement. The settlement as set forth in this Agreement is referred to herein as the "Settlement."
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22. Bureau Score. "Bureau Score" means the score that is assigned to an applicant based on that applicant's credit history by one or more of the following three independent credit bureaus: (i) Trans Union; (ii) TRW; or (iii) CBI.
23. Home Equity Loan. "Home Equity loan" means a loan secured by the equity in a borrower's existing home.
24. Application Fee. "Application Fee" means those fees normally charged to an applicant by Citibank in the processing of the applicant's loan application. For purposes of this Agreement, those fees include only the following: the loan processing fee; credit bureau fees and appraisal fee.
RECITALS WHEREAS: 25. Plaintiffs brought this Action on behalf of themselves and other African-Americans who applied for and were denied first mortgage loans with Citibank, alleging that Citibank denied such loans on the basis of their race or the racial composition of their neighborhoods in violation of the Equal Credit Opportunity Act, the Fair Housing Act, and Sections 1981 and 1982 of the Civil Rights Act. 26. Citibank has at all times denied, and continues to deny, each and every claim of wrongdoing raised against it in this Action. Citibank further denies that it is liable in damages in any way to the Plaintiffs or any other member of the Class. 27. Citibank recognizes the expense and length of time necessary to continue this Action through trial and the appeals that may follow and the burden upon and interference with Citibank' s ordinary business operations that could be caused by the continued litigation.
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Citibank, denying any wrongdoing, has agreed to settle the lawsuit in order to avoid the costs and business disruption of further litigation and to provide additional encouragement to AfricanAmericans to apply for, and obtain, loans from Citibank. Citibank has concluded, therefore, that it is in its best interest to resolve this Action on the terms stated in this Agreement to avoid this additional expense and inconvenience and to put to rest all of the claims that were brought, could have been brought, or could hereafter be brought in this Action, or in similar actions.
28. Class Counsel has made an investigation of the facts and circumstances underlying the issues raised by the claims alleged by the Plaintiffs in this Action and has researched the law applicable to these issues and claims. Class Counsel recognizes the expense and length of time necessary to continue this Action through trial and the appeals that may follow, the difficulty of complex litigation, and the uncertainty inherent in predicting the outcome of this Action. Based on all of these considerations, Plaintiffs and Class Counsel have concluded that the Settlement set forth in this Agreement is fair, reasonable and in the best interests of the Class.
29. The parties hereto and their counsel believe that the proposed Settlement of the Action on the terms and conditions set forth hereinafter is fair, adequate, reasonable and proper, and further state that this Settlement is the result of arms-length negotiations between the parties hereto. This Agreement reflects a compromise between the parties of disputed claims concerning Citibank's mortgage loan practices and policies, including without limitation all claims under the Acts, as well as other federal, state or local laws, or common law, for injunctive relief and monetary damages resulting from Citibank's mortgage loan practices at any time from July 6, 1992 through December 31, 1995. In no event shall this Agreement be construed or deemed as an admission or concession by Citibank of the truth of any allegation
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or the validity of any claim asserted in this Action, or of any liability or fault on the part of Citibank, and all such allegations are expressly denied. It is expressly acknowledged by all the parties to this Action that there was no finding of a policy or practice of discrimination by Citibank.
NOW THEREFORE, in consideration of the agreements, covenants, releases, representations and warranties set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, it is hereby agreed, subject to approval by the Court, that this Action shall be finally settled, compromised and dismissed with prejudice as follows:
AGREEMENT 30. The foregoing Definitions and Recitals are incorporated herein by reference and are made a part of this Agreement. 31. Class Members' Right to Opt Out. Any member of the Class may elect to be excluded from this Settlement and from the Class by opting out of the Class within thirty (30) days of the date on which the Class Notice is mailed. Class Members shall opt out by mailing a Notice of Exclusion from the Class to Michael W. Dobbins, the Clerk of the Court, at a P.O. Box to be obtained by Class Counsel, which opt out must be postmarked within thirty (30) days of the date on which the Class Notice is mailed. Class Counsel shall obtain the P.O. Box at least 5 days before the date on which Class Notice is mailed. Any Class Member who opts out shall not be entitled to any of the benefits set forth in Paragraph 33 of this Agreement and shall not be subject to the release of claims set forth in Paragraph 39. Any Class Member who opts out and wishes to proceed with litigation against Citibank must file a separate and independent
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action, and that action shall be assigned to a judge according to the court's random assignment system.
32. Option to Withdraw. As set forth in Paragraph 27, the parties recognize that Citibank has concluded that it is in its best interest to enter into this Agreement in order to avoid the additional expense and inconvenience of further litigation and to put to rest all claims that were, could have been brought, or could hereafter be brought in this Action. The parties also recognize that these goals will likely be frustrated if litigation either in this or any other action of the claims asserted or that could have been asserted in this Action continues notwithstanding this Agreement. Therefore, in the event that the number of Class Members specified in a separate letter agreement dated December 3, 1997 between Class Counsel and Citibank's counsel provide timely notice of their desire to opt out of the Class, Citibank shall have the option to withdraw from this Agreement. Citibank shall have 21 days following the deadline for Class Members to opt-out in which to decide whether to exercise the foregoing option to withdraw from this Agreement. If Citibank exercises that right, the Agreement shall be null and void; this Action will continue; and the parties shall move jointly for vacation of any and all orders entered pursuant to this Agreement.
33. Settlement Terms. Subject to and conditional upon the entry of Final Approval and Final Judgment approving this Settlement Agreement, Citibank agrees to the following: A. Non-Monetary Benefits for All Settlement Class Members.
(i) Lending Consortium. Citibank will undertake efforts to organize a lending consortium consisting of Citibank and several other lenders in the Chicagoland area to assist low to moderate income loan applicants in obtaining mortgages. The program will be modeled
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after existing programs in other cities and will stay in effect for two years following the date of the consortium's establislnnent.
The goal of the consortium will be to establish a review process whereby low to moderate income denied mortgage loan applicants (as defined, infra, at p.lO) of a participating lender may be eligible to have their declined loan applications reviewed by a loan committee established by the consortium. The loan committee would then reevaluate their loan application to determine if any of the other lending institutions participating in the consortium could approve the loan request under their particular loan policies and programs. Lending institutions participating in the consortium would not be obligated by any terms previously quoted by the originating institution. Establislnnent of the review process and review by the loan committee would and does not imply or guarantee that mortgage credit will be extended to any applicant. If the loan committee determines that the loan cannot be made by any of the participating lenders, the consortium staff members would instead provide free counseling to mortgage applicants to assist them in clearing up credit problems or other deficiencies that caused their application to be denied.
If such a consortium is formed, eligible declined applicants would be provided with a brochure or other form of notice along with the adverse action letter advising them of the consortium and that they may be able to have their loan request reviewed by the consortium's loan committee to request a new evaluation of their mortgage application for potential' fmancing by one of the other lenders participating in the consortium. The
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loan committee would meet on a regular basis to review denied applications that were forwarded to the committee by eligible loan applicants.
To be eligible to appeal to the committee, the following criteria (or such other criteria as agreed to by the consortium members) would have to be met:
(a) the applicant must have applied for either a purchase or refinance mortgage loan of a one or two unit owner occupied residence;
(b) the applicant intends to be a primary resident of the property for which financing is sought;
(c) the location of the property to be financed must be in the Illinois counties of either Cook, Lake, DuPage or McHenry;
(d) the amount of the loan applied for must not exceed the maximum amount permitted by Fannie Mae and Freddie Mac under their conforming loan programs;
(e) the combined household income must not exceed 80% of the median income for the county in which the applicant resides (i.e., the low to moderate income range); and
(f) the lending institution that denied the applicant's loan request must be a participating member in the consortium.
Citibank shall have a period of up to six months (the "organization period") from the date of Final Approval of the Settlement, within which to attempt, in good faith, to organize the lending consortium, as described above. If, at any time within the six month organization period Citibank determines that the consortium cannot be organized
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or otherwise finds that there is inadequate interest within the lending community to establish such a consortium, Citibank may instead establish the mortgage counseling service described in paragraph (ii) below, regardless of whether the six month organization period has fully expired. (ii) Mortgage Counselor. If a lending consortium (as described above) cannot be formed, Citibank will establish an independent mortgage counseling service for eligible Citibank applicants who are denied mortgage loans. Citibank will choose an independent mortgage counselor who is acceptable to Class Counsel. Should Citibank seek to establish the mortgage counseling service, it shall provide written notice of its intent to do so to Class Counsel and shall have at least three months from the date of the notice within which to organize the service. If established, the independent mortgage counseling service will stay in effect for two years following the date of its establishment.
The goal of the mortgage counseling program will be to establish a counseling service whereby low to moderate income denied Citibank mortgage loan applicants may be eligible to have their loan denial reviewed by the independent mortgage counselor (the "mortgage counselor"). The mortgage counselor would then reevaluate the loan application to determine if the counselor agrees with the original loan decision by Citibank or whether the counselor believes that the loan could be made under Citibank's loan policies, practices, and programs. If the mortgage counselor agrees with the original loan decision by Citibank, the mortgage counselor will provide free counseling to mortgage applicants to assist them in clearing up credit problems or other deficiencies that caused their application to be denied. If the mortgage counselor disagrees with
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Citibank's original decision and believes that the loan should be approved under Citibank's loan policies, practices, and programs, the counselor may review the decision with a Citibank representative. The Citibank representative shall be available for such discussions with the counselor on a regular basis. The Citibank representative will then reevaluate the loan application. If the Citibank representative determines that the loan cannot be approved under Citibank's loan policies, practices, and programs, the mortgage counselor will instead provide free counseling to mortgage applicants to assist them in clearing up credit problems or other deficiencies that caused their application to be denied.
If such a mortgage counseling service is formed, eligible declined applicants would be provided with a brochure or other form of notice along with the adverse action letter advising them of the counseling service and that they may be able contact the counselor to request a new and independent evaluation of their mortgage application. The applicants would be further advised that establishment of the counselor review process and contacting the counselor would and does not imply or guarantee that mortgage credit will be extended by Citibank to any applicant.
To be eligible for review and counseling by the mortgage counselor, the same criteria as noted in paragraphs (a) through (t) above with reference to the lending consortium would have to be met, except that the program would be available solely to mortgage applicants declined loans by Citibank, not applicants declined by other lending institutions.
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In cOIlllection with the independent review process contemplated by the mortgage counselor service described in this Agreement, the mortgage counselor may make reasonable requests for information from Citibank to determine whether eligible AfricanAmerican applicants who contact the mortgage counselor are being treated the same as similarly situated white applicants. Any such requests for information must be made by the mortgage counselor in writing and directed to the designated Citibank representative. If a disagreement arises regarding the reasonableness of a request for information made by the mortgage counselor, the disagreement will be resolved an independent arbitrator to be agreed to by the parties. The independent arbitrator may resolve only those disputes that arise relative to requests for information as described herein. The independent arbitrator has no authority to, and may not, consider or resolve, or attempt to consider or resolve, disputes, if any, that may arise relative to the disposition of a loan request referred to the mortgage counselor.
Any request for information from the mortgage counselor that seeks information on or for more than five (5) similarly situated white applicants shall be deemed unreasonable if made in connection with the mortgage counselor's consideration of any single denied African-American applicant. All single requests that exceed 5 in number shall not be subject to arbitration (as set forth herein), but instead may be denied by Citibank. The selection of similarly situated white applicants shall be made solely by Citibank. If, however, the mortgage counselor disagrees that the white applicants selected by Citibank are similarly situated, the disagreement shall be resolved by the arbitrator. If the arbitrator believes that the selected white applicants are not similarly
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situated, then the mortgage counselor may request additional files of similarly situated white applicants in the same number detennined by the arbitrator not to be similarly situated. B. Monetary Benefits for Class Members. Under this Agreement, monetary benefits available to Settlement Class Members who do not opt-out of the Settlement varies depending upon whether such Members are eligible for membership in either Benefit Class A, Benefit Class B, or Benefit Class C, as described herein. All Settlement Class Members who do not opt-out of the Settlement are members of Benefits Class A and are also entitled to the relief available to the entire Settlement Class, as set forth in Paragraph A, above. Settlement Class Members eligible for membership in either Benefit Class B or Benefit Class C who do not opt out of the Settlement are entitled to the relief available to their particular Benefit Class, as well as the relief available to Benefit Class A and the entire Settlement Class, as set forth in Paragraph A, above. C. Financial Benefits for Benefit Class A. Benefit Class A comprises all Settlement Class Members who do not exclude themselves from the Settlement Class. Benefit Class A members will be entitled to have the Application Fee, as that term is defined in Paragraph 24, waived, on a one-time basis, should they apply for a first mortgage loan with Citibank at any time within two years from the date of the Final Judgment approving this Settlement. To qualify to obtain the Application Fee waiver, the
Settlement Class Member must submit a Proof of Claim postmarked within 30 days of
the date on which Class Notice is mailed. If the Court enters a Final Judgment approving the Settlement, Settlement Class Members who have timely submitted Proofs of Claim
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will be mailed a letter from Citibank advising them of which Benefit Class they qualify for and setting forth the process to be followed by them in order to claim and receive their benefits. Benefit Class A members will have two years from the date of the Final Judgment approving the Settlement within which to take advantage of and use their Application Fee waiver at Citibank. The members of Benefit Class A are identified by name in a separate letter agreement dated January 8, 1998 between Class Counsel and Citibank's counsel. D. Relief With Respect to Members of Benefit Classes Band C. Citibank will create a Benefits Fund in the amount of $360,000 to be distributed and disbursed to the Members of Benefit Class B and Benefit Class C in the manner set forth below. The amount of the Benefits Fund is fixed and will not exceed $360,000. The actual amounts received by Members of Benefit Classes Band C may vary depending upon the total number of qualified Class Members in Benefit Classes Band C. If the total amount available in the Benefits Fund is not claimed by Benefit Classes Band C Members within two years of the date of Final Judgment, any assets remaining in the Benefits Fund will be used by Citibank within three years after the date of Final Judgment approving the Settlement to provide funding for outreach, educational or other programs designed to assist minorities in obtaining loans from Citibank. These funds shall be in addition to Citibank's existing financial commitments, if any, to such programs, or may be used to enhance existing programs. Citibank shall provide notice to class counsel of its intended use of these funds, which notice shall include such information as necessary to demonstrate that the funds will be used consistent with the terms of this Agreement.
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E. Qualification of Benefit Classes Band C Members. To qualify for membership in Benefit Class B or C, the Settlement Class Member must submit a timely Proof of Claim. A Class Member who wishes to claim monetary benefits under the Settlement must submit a Proof of Claim postmarked within 30 days of the date on which Class Notice is mailed. If the Court enters Final Judgment, Benefit Class Members who have timely submitted Proofs of Claim will be mailed a letter from Citibank advising them which Benefit Class they qualify for and setting forth the process to be followed by them in order to claim and receive some of the benefits described below for which they may be eligible. Benefit Class B and Benefit Class C members will have two years from the date of the Final Judgment approving the Settlement within which to claim any benefits to which they be entitled to from Citibank. The Proofs of Claim included with the Class Notice will also advise the Class Member which Benefits Class, if any, the particular Class Member is eligible to participate in.
F. Membership in Benefit Class B. Benefit Class B comprises all Settlement Class Members who do not exclude themselves from the Settlement Class and who (a) submitted an application for a first mortgage home purchase loan which was denied by Citibank at any time during the period from July 6, 1992 through December 31, 1995 or submitted an application for a first mortgage refinance loan which was denied by Citibank at any time during the period from July 6, 1992 to December 31, 1992; and (b) had an "Designated Credit Score," as that term is defined in Paragraph 33(J), at the time they originally applied for a first mortgage loan with Citibank. The Class Members eligible for
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participation in Benefit Class B are identified by name in a separate letter agreement dated January 8, 1998 between Class Counsel and Citibank's counsel. G. Consequences of Being a Member of Benefit Class B. Qualified Members of Benefit Class B who: (1) re-apply for a first mortgage loan with Citibank at any time within two years
from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are approved for a first mortgage loan by Citibank and accept the loan, are entitled to cash or credits against closing costs in an amount between $2500.00 and $3,250.00, depending upon the number of Class Members who timely file Proofs of Claim; or (2) re-apply for a first mortgage loan with Citibank at any time within two years from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are denied a first mortgage loan by Citibank, are entitled to a cash payment in an amount between $2,500.00 and $3,250.00 depending upon the number of Class Members who timely file Proofs of Claim; or (3) re-apply for a first mortgage loan with Citibank at any time within two years from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are approved for a first mortgage loan by Citibank but decline the loan, are entitled to no benefits under the Settlement, except as provided in paragraph (4), below.
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(4) Benefit Class B Members who would otherwise qualify under Paragraph (3), but have Interest Rates on their existing first mortgage loans more 'favorable than that available at Citibank at the time the Class Member seeks to re-apply for a first mortgage loan at Citibank, may instead apply for a home equity loan, rather than a first mortgage loan, with Citibank. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved by Citibank and accepted by such Member, such Member is entitled to a cash payment or closing cost credits in the amount of $1,625.00. If such Member does not qualify for a home equity loan under existing Citibank standards and the loan is denied, such Member is entitled to a cash payment in the amount of $1,625.00. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved but the Member declines the loan, the Member is entitled to no benefits under the Settlement. No Class Member may claim benefits under this paragraph (4) if at the time they apply for the home equity loan, Citibank has already approved a loan application submitted by the Class Member for a first mortgage loan. In such case, the Class Members will be subject to paragraph (1) above should they accept the first mortgage loan and receive no benefits should they decline it. In such cases where a Class Member applies under this Agreement to refinance an existing first mortgage and the interest rate on their existing mortgage is more favorable than that Citibank makes available to the Class Member at the time they so apply, then Citibank agrees that, before it begins to process the Class
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Member's refmance application, it will advise the applicant of their option under this provision to instead apply for a home equity loan. (5) Members of Benefit Class B who do not satisfy the Lending Criteria at the time they re-apply for a first mortgage loan with Citibank, are entitled to a cash payment in the amount of $1,625.00, unless Citibank approves their loan, in which case such Members will be subject to paragraphs (1) through (4), above. H. Membership in Benefit Class C. Benefit Class C comprises all Settlement Class Members who do not exclude themselves from the Settlement Class and who (a) submitted an application for a first mortgage refmance loan which was denied by Citibank at any time during the period from January 1, 1993 to December 31, 1995; and (b) had an "Designated Credit Score," as that term is defined in Paragraph 33(J), at the time they originally applied for a first mortgage loan with Citibank. The Class Members eligible for participation in Benefit Class C are identified by name in a separate letter agreement dated January 8, 1998 between class counsel and Citibank's counsel. 1. Consequences of Being a Member of Benefit Class C. Qualified Members of Benefit Class C who: (1) re-apply for a first mortgage loan with Citibank at any time within two years from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are approved for a first mortgage loan by Citibank and accept the loan, are entitled to cash or credit against closing costs in an amount between $770.00 and
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$1,000.00 depending upon the number of Class Members who timely file Proofs of Claim; or (2) re-apply for a first mortgage loan with Citibank at any time within two years from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are denied a first mortgage loan by Citibank, are entitled to a cash payment in an amount between $770.00 and $1,000.00 depending upon the number of Class Members who timely file Proofs of Claim; or (3) re-apply for a first mortgage loan with Citibank at any time within two years from the date of a Final Judgment approving the Settlement, satisfy the Lending Criteria, as described in Paragraph 33(K), at the time they re-apply, and are approved for a loan by Citibank but decline the loan, are entitled to no benefits under the Settlement, except as provided in paragraph (4), below. (4) Benefit Class C Members who would otherwise qualify for a first mortgage loan under paragraph (3), but have Interest Rates on their existing first mortgage loans that are more favorable than that available at Citibank at the time the Class Member seeks to re-apply for a first mortgage loan at Citibank, may instead apply for a home equity loan, rather than a first mortgage loan, with Citibank. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved by Citibank and accepted by such Member, such Member is entitled to a cash payment or credit against closing costs in an amount between $770.00 and $1,000.00, depending upon the number of Class
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Members who timely file Proofs of Claim. If such Member does not qualify for a home equity loan under existing Citibank standards and the loan is denied, such Member is entitled to a cash payment in an amount between $770.00 and $1,000.00 depending upon the number of Class Members who timely file Proofs of Claim. If such Member qualifies for a home equity loan under existing Citibank standards and the loan is approved but the Member declines the loan, the Member is entitled to no benefits under the Settlement.
No Class Member may claim benefits under this paragraph (4) if at the time they apply for the home equity loan, Citibank has already approved a loan application submitted by the Class Member for a first mortgage loan. In such case, the Class Members will be subject to paragraph (1) above should they accept the fIrst mortgage loan and receive no benefits should they decline it. In such cases where a Class Member applies under this Agreement to refinance an existing first mortgage and the interest rate on their existing mortgage is more favorable than that Citibank makes available to the Class Member at the time they so apply, then Citibank agrees that, before it begins to process the Class Member's refInance application, it will advise the applicant of their option under this provision to instead apply for a home equity loan. (5) Members of Benefit Class C who do not satisfy the Lending Criteria at the time they re-apply for a first mortgage loan with Citibank are entitled to a cash payment in the amount of $500.00, unless Citibank approves their loan, in which case such members shall be subject to paragraphs (1) through (4), above.
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1. Designated Credit Score. As used in this Agreement, the term "Designated Credit Score" means: (1) for Class Members whose fIrst mortgage loan application was denied by Citibank between July 6, 1992 and March 9; 1993, and who did not have a "Credit Score" as defmed in paragraph J(2) below, a "Bureau Score," as that term is defined in Paragraph 22, of 600 or less in the case of TRW; 400 or less in the case of CBI; or, 500 or less in the case of Trans Union. (2) for Class Members who originally applied for a fIrst mortgage loan with Citibank in 1993 or 1994, a "Credit Score," as that term is defined in Paragraph 21, of 875 or higher; or (3) for Class Members who originally applied for a fIrst mortgage loan with Citibank in 1995, a Credit Score of 800 or higher. (4) In determining whether a Class Member who originally applied in 1993, 1994 or 1995 satisfied the "Lending Criteria" or had a "Designated Credit Score," the "final" Credit Score (as that term is defined by Citibank) shall be used. If a "final" Credit Score is not available, then the "Preliminary" Credit Score shall be used.
K. Lending Criteria. As used in this Agreement, the term "Lending Criteria" means (1) a Credit Score of 785 or higher; (2) a back-end ratio not exceeding 42 percent; and (3) a loan-to-value ratio not exceeding 95 percent.
L. Multiple Applications. Settlement Class Members who applied more than once for a first mortgage loan with Citibank during the period covered by the Settlement and were
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denied each time, may qualify for Benefits under this Agreement only once. Settlement Class Members who were originally denied a first mortgage loan by Citibank, whether they applied individually or with one or more co-applicants, but Citibank subsequently approved a fIrst mortgage loan on the same property, either for them or any of their coapplicants, are entitled only to the one-time Application Fee waiver provided for in Paragraph 33C, and are not eligible for membership in either of the Benefit Classes. The Settlement Class Members falling into this category are to be agreed to and identified by name within 7 days of the date of this Agreement, via a separate letter agreement between Class Counsel and counsel for Citibank. M. Multiple or Joint Applicants. In those instances where there was more than one applicant on a particular loan application falling within the scope of this Settlement, the coapplicants or joint applicants on any such application shall be entitled to only one set of benefits under this Settlement. For such Class Members, if more than one of the coapplicants or joint applicants re-apply, benefits available under this Agreement, if timely and properly claimed, shall be distributed to such Class Members jointly, provided that such applicants are seeking financing on the same property. If the applicants are seeking fInancing on different property, then any and all benefits available under this Agreement shall be divided, shared and distributed between them in equal proportions. The determination of whether distribution of benefits to such applicants would be available jointly or in proportionate shares shall be made upon expiration of the time period permitted under this Agreement for the submission of proofs of claim.
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N. Combining Benefits. Benefit Class Members may not combine any benefit received under the Settlement with any other benefits, coupons or discounts that Citibank offers, issues or recognizes.
O. Relief With Respect To Representative Plaintiffs. In recognition of the efforts of Selma Buycks-Roberson, Renee Brooks and Calvin Roberson on behalf of the Class, Citibank will pay them an aggregate award of $60,000. 34. Class Counsel Costs and Attorneys' Fees. If the Court grants Final Approval of
the Settlement, Class Counsel will request the Court's approval of reasonable compensation for their services and costs not to exceed $950,000 in total amount. Any and all claims for costs or sanctions related to this Action shall be withdrawn. Class Counsel will submit a fee petition to the Court on such a date on or prior to the day of the fairness hearing, as is directed by the Court. The amount of attorneys' fees and costs approved by the Court, not exceeding $950,000, will be paid by Citibank to Class Counsel on the Effective Date.
35. Preliminary Approval of Settlement. On or before January 12, 1998, the parties shall join in an application to the Court for the entry of an order substantially in the form of Exhibit C (the "Preliminary Approval Order"), which:
A. Makes a preliminary determination that this Agreement is fair, reasonable and adequate to the Class;
B. For purposes of this Settlement only: (i) certifies the Settlement Class defined in Paragraph 4 herein. (ii) designates Selma Buycks-Roberson, Renee Brooks and Calvin Roberson as the Class Representatives of the Settlement Class; and
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(iii) designates Judson Miner, Fay Clayton and Jolm Wickert as Class Counsel; C. Schedules a hearing to be held within 7 days (or as soon thereafter as practical)
(the "Settlement Hearing") after expiration of the final date on which Citibank may exercise its option to withdraw from this Agreement, to detennine: the fairness of this Settlement pursuant to Federal Rule of Civil Procedure 23(e); Class Counsel's fees and expenses; and Final Approval of the Settlement; D. Finds that the mailing of the Class Notice in a form substantially the same as the notice attached hereto as Exhibit A (or any other such notice as the Court may require) is the only notice required and that such notice satisfies the requirements of due process and federal law; and E. Directs that notice of this Settlement be given to the Settlement Class in the manner set forth in Paragraph 36, and fmds that the manner in which notice is to be provided satisfies the requirements of due process and federal law. 36. Notice of Settlement. Within no later than 30 days following the date of Preliminary Approval of this Agreement by the court, Citibank agrees to provide, and shall bear the expenses of providing, Court-approved notice to Class Members of the proposed Settlement of this Action by mailing to all known Settlement Class Members at their last known addresses as reflected in the records of Citibank, first-class postage prepaid, in accordance with the Preliminary Approval Order, a copy of the Class Notice in substantially the same fonn as Exhibit A. In addition to such other matters as the Court may require, the Notice shall apprise Class Members of the material terms of the Agreement, including the opportunity to opt out of the settlement, and that any objections to the proposed settlement and/or to the proposed award
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of Class Counsel fees and costs should be served, in writing, upon the Clerk of the Court, Class Counsel and counsel for Citibank, at the addresses and within such time periods as provided for by this Agreement. Such Notice shall further inform Class Members of the date on which the court will hold the final hearing to determine the fairness, reasonableness and adequacy of the proposed settlement and the reasonableness of the proposed fee award to Plaintiffs' Class Counsel.
37. Dismissal Order. Concurrent with the parties' application for Final Approval, the parties will petition the Court for the entry of a Final Judgment and Order of Dismissal, substantially in the form attached hereto as Exhibit B, which shall provide for, among other things, the following:
A. The Court's Final Approval of this Settlement and a finding by the Court that the terms and conditions of this Settlement are fair, reasonable, adequate and in the best interests of the Settlement Class; that each Class Member who has not timely fIled a notice of exclusion from the Settlement shall be bound by this Agreement, including the release and covenant not to sue contained in Paragraph 39; and directing consummation of all of the Settlement's terms and conditions;
B. Finding that Notice was given to Class Members in this Action in accordance with due process and federal law;
C. A dismissal on the merits with prejudice of all claims that were asserted in this Action or could have been asserted in this Action;
D. An order, in conformity with Paragraph 39 of this Settlement: (i) barring and permanently enjoining the institution or prosecution by any and all Settlement
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__._---_ --------,------_ _

.. _~----

... ~-~.~~----_._~

...

..-.

Class Members who have not timely filed a notice of exclusion from the Settlement, either directly, representatively, derivatively or in any other capacity, of any other action against the Defendant, in this Court or in any other court or forum, asserting any claims that are being released or settled herein, including without limitation any claim that was or could have been brought in this Action, from the beginning of time up to and including the date of final judgment, that relates to any application(s) by a Class Member for a first mortgage home purchase or refinance loan; and, (ii) ordering any party violating such order to pay costs and attorneys' fees incurred by any Released Party as a result of a violation of this order; and, (iii) enter Final Judgment thereon. A party shall not be deemed to be in violation of such order if the party voluntarily dismisses with prejudice any court action or other suit or proceeding brought against Citibank within 30 days after the party or his/her counsel of record receives written notice from Citibank demanding that the suit be voluntarily dismissed in light of the terms of this Agreement and provisions of such order; E. A reservation of exclusive jurisdiction in this Court to enforce all matters relating to the modification, interpretation, administration, implementation, effectuation and enforcement of all terms and provisions of this Agreement; .and F. Awarding attorneys' fees, costs and expenses for Class Counsel as provided in Paragraph 34. 38. Disapproval of Agreement. In the event any court disapproves or sets aside this Agreement, or any part hereof, for any reason, or holds that it will not enter or give effect to
-27-

the Final Judgment and Order of Dismissal in substantially the fonn described in Paragraph 37, or holds that the entry of the Final Judgment and Order of Dismissal or any part thereof should be overturned or modified in any material way, then:
A. If all parties hereto do not agree jointly to appeal such ruling, this Agreement shall become null and void; this Action shall continue; and the parties shaH move jointly that any and all orders entered pursuant to this Agreement be vacated; or
B. If all parties hereto do agree to jointly appeal such ruling, and if the Final Judgment and Order of Dismissal or its equivalent in all material respects is not in effect after the tennination of all proceedings arising out of such appeal, this Agreement shall become null and void; this Action shall continue; and the parties shall move jointly that any and all orders entered pursuant to this Settlement be vacated.
39. Releases by Settlement Class Members. Subject to and conditional upon the entry of Final Approval of this Agreement, and in addition to the effect of Final Judgment, the Plaintiffs and each Settlement Class Member who does not fIle a timely notice of exclusion from this Settlement, and their respective heirs, executors, administrators, representatives, agents, employees, attorneys, successors and assigns, shall be deemed to have agreed that Plaintiffs and each and every Settlement Class Member has released and forever discharged each and all of the Released Patties, as defined in Paragraph 17, from any and all claims, disputes, actions, liabilities, causes of action, suits, set-offs, counterclaims, demands, or damages, whatsoever, based upon any legal or equitable theory, right of action or otherwise (whether arising under federal, state or local law, common law or regulation), foreseen or unforeseen, known or
-28-

unknown, matured or unmatured, accrued or not accrued, which the Plaintiffs or Class Members or any of them ever had, now have, or may hereafter have up until the date of final judgment, based upon, in connection with, arising out of, or which are in any way, directly or indirectly, related to the claims alleged or which could have been alleged in this Action relating to first mortgages, including, for example (i) application(s) by a Class Member for a first mortgage home purchase or refinance loan made at any time prior to the date of final judgment; or (ii) Citibank's loan practices or policies relating to first mortgage home purchase or refinance loans made by Citibank at any time prior to the date of final judgment; or (iii) Citibank's lending decisions relating to first mortgage home purchase or refinance loans made at any time prior to the date of final judgment; or, (iv) any claim that Citibank has discriminated against loan applicants on the basis of race in any aspect of its mortgage lending business at any time from the beginning of time up to the date of final judgment (collectively, the "Released Claims"). Without limiting the generality of the foregoing, the Released Claims include all claims, actions, rights or causes of action arising under federal law including the Acts and any and all regulations promulgated pursuant to the Acts, and any and all state laws, local laws or common law. In addition, the named plaintiffs Selma Buycks-Roberson, Calvin Roberson, and Renee Brooks will each sign and provide Citibank with an original executed copy of a Release in the form attached hereto as Exhibit. D.
40. No Admission. The Plaintiffs, the Settlement Class and the Defendant agree that this Settlement, and any proceedings in connection herewith, are not, and shall not be construed or invoked by anyone as, an admission of liability or wrongdoing on the part of the Defendant or as an admission as to the validity of any claim asserted against the Defendant. Neither this
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Settlement (including the Exhibits hereto) nor any orders or documents related hereto nor any of the terms hereof shall be offered or received in evidence as an admission of liability or wrongdoing on the part of the Defendant. The Defendant expressly disclaims and denies any wrongdoing whatsoever and states that it has entered into this Settlement solely to avoid the inconvenience and expense of protracted and costly litigation.
41. Entire Agreement. This Agreement, including the Exhibits, constitutes the full and entire agreement and understanding between the parties with regard to the subject hereof, and supersedes any prior representations, promises or warranties (oral or otherwise) made by any party. No party shall be liable or bound to any other party for any prior representation, promise or warranty (oral or otherwise) except for those expressly set forth in this Settlement Agreement.
MISCELLANEOUS 42. Counterparts. This Agreement may be executed in one or more counterparts and may be transmitted via facsimile. If so executed or transmitted, the various counterparts shall be and constitute one instrument for all purposes and shall be binding on the party that executed it. For convenience, the several signature pages may be collected and annexed to one or more documents to form a complete counterpart. Photocopies and facsimiles of executed copies of this Agreement may be treated as originals. 43. Modification. This Agreement shall not be amended or modified except by written agreement executed by Plaintiffs' Class Counsel on behalf of Plaintiffs and the Settlement Class Members and by the Defendant (either by a dilly authorized officer thereof or by counsel on its behalf).
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44. Binding Effect; Assignment. This Settlement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns . No party hereto may assign its rights or obligations hereunder without the prior written consent of all of the other parties hereto.
45. No Further Actions or Publicity. Plaintiffs and Class Counsel agree that any public statements regarding the Settlement of this Action (written or oral) must be agreed upon in advance by Citibank, and that they will make no public statements about this Action or the Settlement other than those which are mutually agreed upon. The Settlement papers and Notice to the Class Members will recite that there was no finding of a policy or practice of discrimination by Citibank. Citibank agrees that it will provide Class counsel with advance notice of press releases, if any, issued by Citibank regarding this Settlement.
46. Time Periods. The time periods and/or dates set forth in this Agreement with respect to the giving of notices and hearings herein are subject to approval and change by the Court or by the agreement of the parties.
47. Document Return. The parties shall, within sixty (60) days of the Effective Date, return to the opposing party all documents and other materials that were furnished to them by the opposing party during the course of discovery and shall destroy all additional copies of such materials.
48. Governing Law. This Settlement Agreement, including the Exhibits, shall be governed by and construed and enforced in accordance with the laws of the United States and, where federal law is not controlling, the laws of the State of Illinois, without reference to principles of choice of law or conflict of laws.
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49. Notice. As agents for the receipt of communications between all Class Members who do not opt out of the Class and Citibank relating to this Agreement, Class Members appoint Judson Miner, Miner, Barnhill & Galland, 14 West Erie Street, Chicago, Illinois 60610, facsimile number: (312) 751-0438 and Fay Clayton, Robinson Curley & Clayton, 300 South Wacker Drive, Suite 1700 Chicago, Illinois 60610, facsimile number (312) 663-0303; and Citibank appoints Robert Kriss and Lucia Nale, Mayer, Brown & Platt, 190 S. LaSalle 81., Chicago, Illinois 60603, facsimile number: (312) 701-7711. Any communication between any Class Member who does not opt out of the Class and Citibank made in connection with this Agreement shall be deemed to have been made when sent by overnight delivery or registered or certified mail (postage prepaid), or delivered in person or by facsimile, to the attorneys at the addresses and facsimile numbers designated for them in this Paragraph. The persons and addresses designated in this Paragraph as agents may be changed by the represented party by written notice to the other signatories hereto in accordance with this Paragraph.
50. Headings. The headings herein are for convenience only and shall not affect the interpretation or construction of this Settlement.
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.... _.... _ - --~_._---_._._._-_

IN WITNESS WHEREOF, the parties hereto, by their respective counsel, have executed this Settlement Agreement on this 9th day of January, 1998.

PLAINTIFFS SELMA BUYCKS-ROBERSON, RENEE BROOKS CALVIN ROBERSON
By: ~~--J.---I--lL~--=-~~ JHtU ) Uson Miner iner, Barnhill & Galland 14 West Erie Street Chicago, IL 60610 and

DEFENDANT CITIBANK, FEDERAL SAVINGS BANK
By: JkN'~ Alan J. Salpeter Robert J. Kriss Lucia Nale Mayer Brown & Platt 190 South LaSalle Street Chicago, Illinois 60603

ay Clayton hn Wickert Robinson, Curley & Clayton 300 South Wacker Drive Suite 1700 Chicago, IL 60610

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)1.)
Exhibits Exhibit A: Notice Exhibit B: Final Judgment Order Exhibit C: Preliminary Approval Order Exhibit D: Releases for Named Plaintiffs
-34-

 
 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS :~~ent for [\i;~;;" . EASTERN DIVISION

SELMA S. BUYCKS-ROBERSON; CALVIN )

R. ROBERSON; and RENE BROOKS, on )

behalf of themselves and other

) r"

similarly situated,

)

)

Plaintiffs,

)

No. 94 C 4094

)

)

Judge Ruben Castillo

v.

)

)

CITIBANK, FEDERAL SAVINGS BANK,

)

)

Defendant.

)

ORDER

After a careful review of the relevant pleadings, including plaintiffs' petition for attorneys' fees and enclosed time records as well as Citibank' s response, this Court concludes that: (1) plaintiffs' attorneys have achieved a significant legal victory for their clients who are "prevailing parties"; (2) plaintiffs' counsel are highly experienced civil rights attorneys, who have carefully and reasonably incurred numerous hours in this complex case, and whose reasonable normal billing rates for these hours would result in attorneys' fees and costs of over $1,000,000; and (3) the settlement agreement stipulates that attorneys' fees and costs should not exceed $950,000. Therefore, after close consideration

of the well-established factors set forth in Hemsley v. Eckerhart,
461 u.s. 424 (1983), this Court hereby awards plaintiffs' a total
of $950,000 in attorneys' fees and costs which this Court expressly finds are eminently reasonable under the circumstances of this case. The Court wishes to commend plaintiffs I counsel for its professionalism and sacrifice in this case.
Defendant shall comply with this order on or before May 18, 1998.

May 7, 1998

ENTER:

;:Z~~ Ruben Castillo United States District Judge

2

 
 l)

IN THE UNITED STATES DISTRICT CuURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

' ',.

SELMA S. BUYCKS-ROBERSON; CALVIN R. )

ROBERSON; and RENEE BROOKS, on behalf )

of themselves and others similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITIBANK FEDERAL SAVINGS BANK,

)

)

Defendant.

)

",', :..,.\', '\'
'~t\~~~· '~"
No. 94 C 4094 Judge CastiIIo
Magistrate Judge Letkow

FINAL JUDGMENT AND ORDER OF DISMISSAL
The parties having come before the Court for a fairness hearing on the proposed
Settlement Agreement (the "Settlement") of this Action on April 20, 1998, pursuant to notice,
at which all persons having any objection to the Settlement described in the Notice having been
given an opportunity to present such objections to the Court, and pursuant to this Court's Order
dated January 15, 1998 (the "Preliminary Approval Order") to consider and dett;rmine the
matters set forth in said Preliminary Approval Order, and due and adequate notice (the "Notice")
having been mailed to all members of the Settlement Class, which consists of all persons:
(i) who are African-American; and (ii) who applied for a first mortgage home purchase or refinance loan with Citibank on property located in Cook, DuPage, Lake or McHenry County, IIIinois; and (iii) whose request for such a loan was turned down by Citibank at any time during the period from July 6, 1992 to December 31, 1995;
and the Court having heard and considered the matter, including all papers filed in connection
therewith, and the oral presentations of counsel at said hearing, including any objectors, and
good cause appearing therefor;

IT IS HEREBY ORDERED THAT: 1. The Settlement of this Action on the terms and conditions set forth in the Settlement Agreement dated January 9, 1998 is fair, reasonable, adequate and in the best interests of the Settlement Class, and therefore -is approved pursuant to Federal.Rule of Civil Procedure 23(e). The parties are hereby directed to consummate the terms and provisions of the Settlement Agreement. 2. The Court finds that notice of these proceedings has been given in accordance with the requirements set forth in Federal Rules of Civil Procedure 23(c) and (e), with due process and federal law. 3. This Action is hereby dismissed on the merits with prejudice. 4. The named Plaintiffs in this Action, Selma Buycks-Roberson, Calvin Roberson and Renee Brooks, and all Class Members who did not opt out of the Class hereby have released Citibank and the Released Parties from all Released Claims as defined in the Settlement Agreement and are hereby permanently barred, restrained and enjoined from commencing or prosecuting against Citibank, or the Released Parties, any of the Released Claims. 5. There has been no finding of a· pattern or practice of discrimination at Citibank. 6. The Court hereby awards attorneys' fees and expenses in the amount of $950,000.00 to Class Counsel, to be paid by Citibank in accordance with the terms of the Settlement Agreement. 7. No costs shall be taxed against any party.
2

'...... ,.
8. Consummation of the Settlement shall proceed as described in the Settlement
Agreement and the Court reserves exclusive continuing jurisdiction to enf~rce all terms and
conditions of the Settlement Agreement, and to enter any further orders as may be necessary to .
effectuate the Settlement and the provisions of this Final Judgment ~smisSal

7 /;). . Dated: /1

,1998

ENTERED:' f.(. ~ p {.,

 
 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?882994215622147-L_35...
LEFKOW, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:94-cv-04094

Buycks-Roberson, et al v. Citibank Fed Svg Bk Assigned to: Hon. Ruben Castillo Demand: $0 Cause: 42:1981 Job Discrimination (Race)
Special Master Nicholas J Bua

Date Filed: 07/06/1994 Date Terminated: 12/04/1997 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question
represented by Nicholas J. Bua Deceased ATTORNEY TO BE NOTICED

Plaintiff
Selma S Buycks-Roberson on her behalf and others similarly situated,

represented by Fay Clayton Robinson, Curley & Clayton, P.C. 300 South Wacker Drive Suite 1700 Chicago, IL 60606 (312) 663-3100 Email: fclayton@robinsoncurley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barack H. Obama Davis, Miner, Barnhill and Galland, P.C. 14 West Erie Street Chicago, IL 60610 (312) 751-1170

Hilary I. Alexis Robinson, Curley & Clayton, P.C. 300 South Wacker Drive Suite 1700 Chicago, IL 60606 (312) 663-3100

Jeffrey Irvine Cummings Miner Barnhill & Galland 14 West Erie Street Chicago, IL 60610 (312) 751-1170 Email: jcummings@lawmbg.com

1 of 18

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?882994215622147-L_35...

Plaintiff Calvin R Roberson

ATTORNEY TO BE NOTICED
John Henry Wickert Robinson, Curley & Clayton, P.C. 300 South Wacker Drive Suite 1700 Chicago, IL 60606 (312) 663-3100 Email: jwickert@robinsoncurley.com ATTORNEY TO BE NOTICED
Judson Hirsch Miner Miner Barnhill & Galland 14 West Erie Street Chicago, IL 60610 (312) 751-1170 Email: jminer@lawmbg.com ATTORNEY TO BE NOTICED
Michael Allen Childers Childers & Windham 29 S. LaSalle Street Suite 430 Chicago, IL 60603 (312) 641-1900 Email: mchild4799@aol.com ATTORNEY TO BE NOTICED
Sara Norris Love Attorney at Law 1600 Wilson Boulevard Suite 8091 Arlington, VA 22209 (703) 522-2214
represented by Barack H. Obama (See above for address)
Fay Clayton (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Irvine Cummings (See above for address) ATTORNEY TO BE NOTICED
John Henry Wickert (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Renee Brooks on behalf of themselves and others similarly situated,
V. Defendant Citibank, Federal Savings Bank

Judson Hirsch Miner (See above for address) ATTORNEY TO BE NOTICED
represented by Barack H. Obama (See above for address)
Fay Clayton (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Irvine Cummings (See above for address) ATTORNEY TO BE NOTICED
John Henry Wickert (See above for address) ATTORNEY TO BE NOTICED
Judson Hirsch Miner (See above for address) ATTORNEY TO BE NOTICED
Sara Norris Love (See above for address)
represented by Robert J. Kriss Mayer, Brown & Platt 190 South LaSalle Street 39th Floor Chicago, IL 60603 (312) 782-0600 Email: courtnotification@mayerbrownrowe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Norris Salpeter Mayer Brown Rowe & Maw 71 South Wacker Drive 39th Floor Chicago, IL 60603 (312) 782-0600 Email:

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courtnotification@mayerbrownrowe.com ATTORNEY TO BE NOTICED
Lucia Nale Mayer Brown Rowe & Maw 71 South Wacker Drive 39th Floor Chicago, IL 60603 (312) 782-0600 Email: courtnotification@mayerbrownrowe.com ATTORNEY TO BE NOTICED
Mary Ann Spiegel Mayer, Brown & Platt 190 South LaSalle Street 39th Floor Chicago, IL 60603 (312) 701-7127 TERMINATED: 10/14/1997

Date Filed 07/06/1994
07/07/1994 07/07/1994 07/26/1994 07/27/1994 08/12/1994
09/06/1994 09/06/1994

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of Fay Clayton, Michael Allen Childers, Hilary I. Alexis as attorney(s) for plaintiff Selma S Buycks-Roberson with Rule 39 affidavits ( Original and one copy of summons(es) issued.) ( Documents: 1-1 through 1-6) (ar) (Entered: 07/08/1994)
2 CONTINGENCY FEE AGREEMENT (Not in public case file) (ar) (Entered: 07/08/1994)
RECEIPT regarding payment of filing fee paid; on 7/6/94 in the amount of $ 120.00, receipt # 438268. (ar) (Entered: 07/08/1994)
3 WAIVER of service of summons as to defendant sent on 7/6/94 (fce) (Entered: 07/27/1994)
4 WAIVER of service of summons as to defendant sent on 7/6/94 (fce) (Entered: 07/27/1994)
5 MINUTE ORDER of 8/12/94 by Hon. Ruben Castillo : Status hearing set for 09/16/94 at 9:30 a.m. Parties to file a joint status report by 09/13/94. Plaintiff to notify all other parties of the court's order. (See reverse of minute order.) Mailed notice (fce) (Entered: 08/12/1994)
6 ANSWER to complaint by defendant; Notice of filing. (fce) (Entered: 09/06/1994)
7 ATTORNEY APPEARANCE for defendant by Robert J. Kriss, Alan Norris Salpeter, Mary Ann Spiegel (fce) (Entered: 09/06/1994)

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09/06/1994 09/06/1994 09/06/1994 09/07/1994 09/13/1994 09/21/1994
10/31/1994 10/31/1994
11/17/1994 11/17/1994 11/17/1994 11/22/1994 11/22/1994 11/22/1994 12/14/1994 12/15/1994

8 RULE 39 Affidavit of Robert J. Kriss (fce) (Entered: 09/06/1994)
9 RULE 39 Affidavit of Alan Norris Salpeter (fce) (Entered: 09/06/1994)
10 RULE 39 Affidavit of Mary Ann Spiegel (fce) (Entered: 09/06/1994)
11 MINUTE ORDER of 9/7/94 by Hon. Ruben Castillo : Status hearing reset for 09/21/94 at 9:00 am. Mailed notice (ar) (Entered: 09/08/1994)
12 JOINT STATUS REPORT by plaintiff (Attachments); Notice of filing. (fce) (Entered: 09/14/1994)
13 MINUTE ORDER of 9/21/94 by Hon. Ruben Castillo : Status hearing held; continued to 11/17/94 at 9:00 am. Disocvery cutoff on class issues set for 10/31/94. Plaintiff's motion for class certification due 11/15/94. Defendant's response due 12/15/94. Plaintiff's reply due 01/15/95. Non-expert discovery cutoff set for 02/28/95. Both parties to identify experts and comply with Rule 26(a)(2) by 03/30/95. Parties to identify any rebuttal experts and comply with Rule 26(a)(2) by 04/30/94. Expert discovery to be completed 05/31/95. Any motions to join or amend due 12/30/94. Any dispositive motions to be filed by 06/30/95. Parties granted leave to proceed with the discovery outlined in open court. No notice (ar) (Entered: 09/22/1994)
14 AGREED MOTION to modify briefing schedule on class certification ; Notice of motion (ar) (Entered: 11/01/1994)
15 MINUTE ORDER of 10/31/94 by Hon. Ruben Castillo : Granting agreed motion to modify briefing schedule on class certification [14-1]. Defendant to respond to plaintiff's discovery requests by 11/07/94. Plaintiff's motion for class certification due 11/22/94. Status hearing reset for 11/22/94 at 9:00 am . Status hearing set for 11/17/94 is vacated. Mailed notice (ar) (Entered: 11/01/1994)
16 AGREED MOTION by defendant Citibank Fed Svg Bk for entry of agreed protective order (Attachment) (Exhibit); Notice of motion (ar) (Entered: 11/18/1994)
17 PROTECTIVE ORDER (Exhibit) (ar) (Entered: 11/18/1994)
18 MINUTE ORDER of 11/17/94 by Hon. Ruben Castillo : Granting defendant's agreed motion for entry of agreed protective order [16-1]. Enter agreed protective order. Mailed notice (ar) (Entered: 11/18/1994)
19 MOTION by plaintiff Selma S Buycks-Roberson for class certification ; Notice of filing (ar) (Entered: 11/28/1994)
20 MEMORANDUM by plaintiff Selma S Buycks-Roberson in support of her motion for class certification [19-1] (Exhibits) (ar) (Entered: 11/28/1994)
21 MINUTE ORDER of 11/22/94 by Hon. Ruben Castillo : Status hearing held; continued to 01/27/95 at 9:00 am. No notice (ar) (Entered: 11/28/1994)
22 PRELIMINARY RESPONSE by defendant Citibank Fed Svg Bk to plaintiff's motion to compel discovery (Exhibit); Notice of filing (ar) (Entered: 12/15/1994)
23 MOTION by plaintiff Selma S Buycks-Roberson to compel responses to discovery ; Notice of motion (ar) (Entered: 12/19/1994)

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12/15/1994 12/15/1994 12/15/1994 12/15/1994 12/15/1994 12/15/1994
12/19/1994 12/19/1994 01/11/1995 01/12/1995 01/12/1995 01/12/1995 01/12/1995

24 MEMORANDUM by plaintiff Selma S Buycks-Roberson in support of her motion to compel discovery [23-1] (Attachments) (ar) (Entered: 12/19/1994)
25 AFFIDAVIT of Hilary Alexis, Esq. regarding her motion to compel responses to discovery [23-1] and memorandum in support [24-1] (Attachments) (ar) (Entered: 12/19/1994)
26 AMENDED MOTION by plaintiff Selma S Buycks-Roberson to to compel responses to discovery [23-1]; Notice of filing (ar) Modified on 12/19/1994 (Entered: 12/19/1994)
27 AMENDED MEMORANDUM [24-1] by plaintiff Selma S Buycks-Roberson in support of her motion to compel discovery (Attachments) (ar) (Entered: 12/19/1994)
28 AFFIDAVIT of Hilary Alexis, Esq. regarding plaintiff's amended motion to compel responses to discovery [26-1] and amended memorandum in support [27-1] (Attachments) (ar) (Entered: 12/19/1994)
29 MINUTE ORDER of 12/15/94 by Hon. Ruben Castillo : Plaintiff's motion to compel discovery [23-1] is withdrawn. Plaintiff's amended motion to compel discovery [26-1] is granted for reasons stated in open court. Defendants to produce the files in question by 12/30/94. Status hearing set for 01/12/95 at 9:00 am. Defendant's response to plaintiff's motion for class certification [19-1] due 12/19/94. Plaintiff's reply due 01/18/95. No notice (ar) (Entered: 12/19/1994)
30 MEMORANDUM by defendant Citibank Fed Svg Bk in opposition to plaintiff's motion for class certification [19-1]; Notice of filing (ar) (Entered: 12/20/1994)
31 APPENDIX filed by defendant Citibank Fed Svg Bk of material filed in support of its memorandum in opposition [30-1] to plaintiff's motion for class certification (1 vol.) (ar) (Entered: 12/20/1994)
33 PRELIMINARY RESPONSE by defendant Citibank Fed Svg Bk to plaintiff's motion for leave to file amended complaint [32-1]; Notice of filing (ar) (Entered: 01/13/1995)
32 MOTION by plaintiffs for leave to file amended complaint ; Notice of motion (ar) Modified on 01/30/1995 (Entered: 01/13/1995)
34 MOTION by plaintiff Selma S Buycks-Roberson for leave to file additional appearance ; Notice of motion (ar) (Entered: 01/13/1995)
35 MOTION by defendant Citibank Fed Svg Bk for leave to subpoena documents from Dr. Alexandra (Exhibits); Notice of motion (ar) Modified on 01/30/1995 (Entered: 01/13/1995)
36 MINUTE ORDER of 1/12/95 by Hon. Ruben Castillo : Status hearing held; continued to 03/01/95 at 9:00 am. Status hearing set for 01/27/95 is vacated. Plaintiffs' motion for leave to file amended complaint [32-1] is granted. Defendant to answer or otherwise plead to the amended complaint by 02/13/95. Plaintiffs' motion for leave to file additional appearance [34-1] of Judson H. Miner is granted. Parties are granted leave to complete any additional class discovery by 02/27/95. Defendant to file any supplement response by 03/13/95. Defendant's motion for leave to subpoena documents from Dr. Alexandra [35-1]

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01/12/1995
01/12/1995 01/12/1995 01/12/1995 01/13/1995 01/19/1995 01/24/1995 01/25/1995 01/25/1995
01/26/1995
02/13/1995 02/23/1995 02/23/1995
03/13/1995 03/13/1995
03/28/1995

is denied as moot. Plaintiffs to produce the medical records by 01/26/95. Any medical records in dispute should be produced for an in camera inspection by the court. Mailed notice (ar) Modified on 01/13/1995 (Entered: 01/13/1995)
37 AMENDED COMPLAINT [1-1] by plaintiff Selma S Buycks-Roberson; adding plaintiffs Calvin R Roberson and Renee Brooks; Notice of filing (ar) (Entered: 01/13/1995)
38 ATTORNEY APPEARANCE for plaintiffs by Judson H. Miner (ar) (Entered: 01/13/1995)
39 RULE 39 Affidavit of Judson H. Miner (ar) (Entered: 01/13/1995)
40 CONTINGENCY FEE AGREEMENT (Not in public case file) (ar) (Entered: 01/13/1995)
41 CONTINGENCY FEE AGREEMENT (Not in public case file) (ar) (Entered: 01/14/1995)
42 Document Sealed (pursuant to Court Order) (ar) (Entered: 01/20/1995)
45 TRANSCRIPT of proceedings for the following date(s): 12/15/94 before Honorable Ruben Castillo (One volume) (fce) (Entered: 01/27/1995)
43 Document Sealed (pursuant to Court Order) (ar) (Entered: 01/25/1995)
44 MINUTE ORDER of 1/25/95 by Hon. Ruben Castillo : Counsel for plaintiff advised this court that they have reached a resolution and withdraw their motion to compel further responses to discovery without prejudice. Mailed notice (ar) Modified on 01/30/1995 (Entered: 01/25/1995)
46 MINUTE ORDER of 1/26/95 by Hon. Ruben Castillo : After an in camera review of the plaintiff's medical records not produced to defendant this court has determined that they are not discoverable under Fed.R.Civ.P. 26 because these records will not lead to potentially admissible evidence. Mailed notice (ar) (Entered: 01/27/1995)
47 ANSWER TO FIRST AMENDED COMPLAINT by Citibank Fed Svg Bk; Notice of filing. (tlm) (Entered: 02/14/1995)
48 MOTION by plaintiffs for extension of discovery ; Notice of motion. (fce) (Entered: 03/01/1995)
49 MINUTE ORDER of 2/23/95 by Hon. Ruben Castillo : Granting plaintiffs' motion for extension of discovery [48-1] Discovery extended to 4/3/95. Status hearing reset to 4/3/95 at 9:00 am. No notice (fce) (Entered: 03/01/1995)
50 Document Sealed (pursuant to Court Order) (ar) (Entered: 03/13/1995)
51 NOTICE of filing by defendant Citibank Fed Svg Bk regarding supplemental memorandum in opposition to plaintiffs' motion for class certification [30-1]. (smm) (Entered: 03/15/1995)
52 REQUEST by defendant for a briefing schedule to respond to plaintiffs' third motion to compel discovery (Exhibit); Notice of filing (fce) (Entered: 03/29/1995)

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03/30/1995 03/30/1995 03/30/1995 03/30/1995
03/30/1995 03/31/1995 04/03/1995 04/03/1995 04/10/1995 04/11/1995 04/11/1995 04/24/1995 04/24/1995 05/14/1995 05/24/1995 05/25/1995

53 Document Sealed (pursuant to Court Order); Notice of motion. (smm) (Entered: 03/31/1995)
54 MOTION by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks for extension of discovery ; Notice of motion. (smm) (Entered: 03/31/1995)
55 MOTION by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks for leave to file supplemental memorandum in support of class certification (Attachment); Notice of motion. (smm) (Entered: 03/31/1995)
56 MINUTE ORDER of 3/30/95 by Hon. Ruben Castillo : Status hearing reset for 5/30/95 at 9:00 a.m. Status hearing set for 4/3/95 is vacated. Defendant's response to plaintiff's third motion to compel discovery due 4/10/95. Plaintiff's reply due 4/24/95. Court will rule by mail. Plaintiff's motion for leave to file supplemental memorandum in support of class certification is granted [55-1]. Plaintiff's motion for extension of discovery is granted [54-1]. Discovery cutoff extended to 7/3/95. Mailed notice. (smm) (Entered: 03/31/1995)
57 SUPPLEMENTAL MEMORANDUM by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks in support of motion for class certification [19-1]. (smm) (Entered: 03/31/1995)
59 ORDER regarding motion for entry of revised agreed protective order [58-1] (smm) (Entered: 04/04/1995)
58 MOTION by defendant Citibank Fed Svg Bk for entry of revised agreed protective order (Exhibit); Notice of motion. (smm) (Entered: 04/04/1995)
60 MINUTE ORDER of 4/3/95 by Hon. Ruben Castillo : Defendant's motion for entry of revised agreed protective order is granted [58-1]. Enter protective order. Mailed notice. (smm) (Entered: 04/04/1995)
61 Document Sealed (pursuant to Court Order) (smm) (Entered: 04/11/1995)
62 TRANSCRIPT of proceedings for the following date(s): 3/30/95 Before Honorable Ruben Castillo (smm) (Entered: 04/12/1995)
63 TRANSCRIPT of proceedings for the following date(s): 2/23/95 Before Honorable Ruben Castillo (smm) (Entered: 04/12/1995)
SCHEDULE set on 4/24/95 by Hon. Ruben Castillo : Status hearing reset to May 31, 1995 at 9:00 a.m. Status hearing set for May 30, 1995 is vacated. Mailed notice (rao) (Entered: 04/24/1995)
64 REPLY by plaintiffs in support of their motion to compel (Exhibits); Notice of filing (fce) (Entered: 04/26/1995)
126 RESPONSE by defendant to plaintiffs' sur-reply (Exhibits); Notice of filing (eav) (Entered: 05/15/1996)
67 RESPONSE by defendant Citibank Fed Svg Bk to plaintiffs' motion for leave to cite additional authority; Notice of filing (fce) (Entered: 06/01/1995)
65 MOTION by plaintiffs Selma S Buycks-Roberson, Renee Brooks, Calvin R Roberson for leave to cite additional authority in support of their third motion to

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05/25/1995
05/26/1995 06/07/1995 06/07/1995
06/07/1995 06/07/1995 06/07/1995 06/08/1995 06/08/1995 06/13/1995 06/13/1995
06/13/1995 06/13/1995
06/13/1995 06/13/1995

compel (Exhibits); Notice of motion. (smm) (Entered: 05/26/1995)
66 MINUTE ORDER of 5/25/95 by Hon. Ruben Castillo : Plaintiffs' motion for leave to cite additional authority in support of their third motion to compel is granted [65-1]. The court will evaluate the defendant's response when it considers this new authority. Mailed notice. (smm) (Entered: 05/26/1995)
SCHEDULE set on 5/26/95 by Hon. Ruben Castillo : Status hearing reset to June 8, 1995 at 9:00 a.m. Mailed notice (rao) (Entered: 05/26/1995)
68 MOTION by plaintiffs for leave to file the appearances of Jeffrey I. Cummings and Barrack Obama as additional attorneys ; Notice of motion. (fce) (Entered: 06/08/1995)
69 MINUTE ORDER of 6/7/95 by Hon. Ruben Castillo : Granting plaintiffs' motion for leave to file the appearances of Jeffrey I. Cummings and Barrack Obama as additional attorneys [68-1] for the plaintiffs. Status hearing set for 6/8/95 is stricken. Telephoned notice (fce) (Entered: 06/08/1995)
70 ATTORNEY APPEARANCE for plaintiffs by Barack H. Obama, Jeffrey Irvine Cummings (fce) (Entered: 06/08/1995)
71 RULE 39 Affidavit of Jeffrey Irvine Cummings (fce) (Entered: 06/08/1995)
72 RULE 39 Affidavit of Barack H. Obama (fce) (Entered: 06/08/1995)
73 MEMORANDUM by defendant in opposition to plaintiffs' motion for sanctions; Notice of filing (fce) (Entered: 06/09/1995)
74 Document Sealed (pursuant to Court Order) (fce) (Entered: 06/09/1995)
75 MOTION by defendant Citibank Fed Svg Bk to stay production pursuant to subpoena served on DHM appraisals (Attachments) (Exhibit); Notice of filing. (smm) (Entered: 06/14/1995)
76 MINUTE ORDER of 6/13/95 by Hon. Ruben Castillo : Defendant's motion to stay production pursuant to subpoena served on DHM appraisals [75-1] is entered and continued generally until the court rules on the pending fully briefed motions. Mailed notice. (smm) (Entered: 06/14/1995)
77 MOTION by plaintiffs Selma S Buycks-Roberson, Renee Brooks, Calvin R Roberson for discovery sanctions (Attachments); Notice of motion. (smm) (Entered: 06/14/1995)
78 MINUTE ORDER of 6/13/95 by Hon. Ruben Castillo : Plaintiffs' motion for discovery sanctions [77-1] is entered and continued generally until the court rules on the pending fully briefed motions. Telephone notice. (smm) (Entered: 06/14/1995)
79 Document Sealed (pursuant to Court Order); Notice of filing.(smm) Modified on 06/14/1995 (Entered: 06/14/1995)
80 MINUTE ORDER of 6/13/95 by Hon. Ruben Castillo : Plaintiffs' fourth motion to compel discovery is entered and continued generally until the court rules on the pending fully briefed motions. Mailed notice. (smm) (Entered: 06/14/1995)

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06/14/1995
06/27/1995 06/27/1995 06/28/1995 06/28/1995
06/29/1995 06/29/1995
06/29/1995 06/29/1995
06/29/1995 07/13/1995 07/14/1995 07/20/1995 07/24/1995

81 MINUTE ORDER of 6/14/95 by Hon. Ruben Castillo : Granting defendant's motion to stay production pursuant to subpoena served on DHM appraisals [75-1]. The court hereby stays subpoena enforcement of this subpoena until after the court rules on plaintiffs' third motion to compel so that the parties can revisit the proper scope of discovery against DHM in light of that ruling. Mailed notice (fce) (Entered: 06/15/1995)
82 Document Sealed (pursuant to Court Order); Notice of filing. (smm) (Entered: 06/28/1995)
83 RESPONSE by defendant Citibank Fed Svg Bk to plaintiffs' motion to vacate 7/3/95 discovery cutoff; Notice of filing. (smm) (Entered: 06/28/1995)
84 MOTION by plaintiffs to vacate the 07/03/95 discovery cutoff pending the court's ruling on their two outstanding motions to compel (Exhibits); Notice of motion (fce) (Entered: 06/28/1995)
85 MINUTE ORDER of 6/28/95 by Hon. Ruben Castillo : Granting plaintiffs' motion to vacate the 07/03/95 discovery cutoff pending the court's ruling on their two outstanding motions to compel [84-1]. The 07/03/95 discovery cutoff is hereby vacated. Mailed notice (fce) (Entered: 06/28/1995)
86 MEMORANDUM OPINION AND ORDER (smm) (Entered: 06/30/1995)
87 MINUTE ORDER of 6/29/95 by Hon. Ruben Castillo : Enter memorandum opinion and order. Plaintiffs' third motion to compel and plaintiffs' fourth motion to compel are granted. Plaintiffs' motion for sanctions is denied [77-1]. Fact discovery cutoff is extended to 12/29/95. Mailed notice. (smm) (Entered: 06/30/1995)
88 MEMORANDUM OPINION AND ORDER (smm) (Entered: 06/30/1995)
89 MINUTE ORDER of 6/29/95 by Hon. Ruben Castillo : Status hearing set to 7/24/95 at 9:00 a.m. Plaintiffs' motion for class certification is granted under Rule 23(b)(2) for purposes of injunctive relief only [19-1]. Plaintiffs are directed to file a joint proposed discovery and litigation schedule before 7/20/95. Mailed notice. (smm) (Entered: 06/30/1995)
90 MINUTE ORDER of 6/29/95 by Hon. Ruben Castillo : Defendant's motion for a briefing schedule is denied as moot [52-1]. No notice. (smm) (Entered: 06/30/1995)
91 SECOND AMENDED COMPLAINT [37-1] by plaintiff; Notice of filing (fce) (Entered: 07/14/1995)
92 MINUTE ORDER of 7/14/95 by Hon. Ruben Castillo : Plaintiffs are granted leave to file a second amended complaint pursuant to the court's prior order which certified the class. No notice. (smm) (Entered: 07/19/1995)
93 JOINT DISCOVERY plan by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks, defendant Citibank Fed Svg Bk; Notice of filing. (smm) (Entered: 07/21/1995)
94 MOTION by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks for leave to to file additional appearance (Attachments); Notice of

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07/24/1995 07/24/1995 07/24/1995
07/24/1995 07/24/1995 08/02/1995 08/29/1995
10/13/1995 10/13/1995 10/13/1995 10/13/1995 10/25/1995 11/13/1995
11/28/1995

motion. (smm) (Entered: 07/25/1995)
95 JOINT DISCOVERY plan by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks, defendant Citibank Fed Svg Bk; Notice of filing. (smm) (Entered: 07/25/1995)
96 AMENDMENT by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks, defendant Citibank Fed Svg Bk to protective order [17-1]. (smm) (Entered: 07/25/1995)
97 MINUTE ORDER of 7/24/95 by Hon. Ruben Castillo : Status hearing held; continued to 8/29/95 at 9:00 a.m. Enter joint discovery plan. All fact discovery to be completed by 12/31/95. All expert discovery to be completed by 7/29/96. Any dispositive motions to be filed by 9/15/96. Enter amendment to protective order. Plaintiffs' agreed motion for leave to to file additional appearance of Sara N. Love is granted [94-1]. Mailed notice. (smm) (Entered: 07/25/1995)
98 ATTORNEY APPEARANCE for plaintiffs Selma S Buycks-Roberson, Renee Brooks by Sara Norris Love (smm) (Entered: 07/25/1995)
99 RULE 39 Affidavit of Sara Norris Love (smm) (Entered: 07/25/1995)
100 ANSWER by defendant Citibank Fed Svg Bk to second amended complaint; Notice of filing. (smm) (Entered: 08/03/1995)
101 MINUTE ORDER of 8/29/95 by Hon. Ruben Castillo : Status hearing held and continued to 10/30/95 at 9:00 a.m. Pursuant to Fed.R.Civ.P. 53 this court, with the unanimous consent of all the parties, hereby appoints former Federal District Court Judge Nicholas J. Bua of the law firm of Burke, Weaver & Prell, 55 W. Monroe St. Suite 800, Chicago, IL 60603, (312) 578-6570 as special master. Mailed notice (fce) (Entered: 08/30/1995)
102 MOTION by defendant for leave to file additional appearance ; Notice of motion (fce) (Entered: 10/14/1995)
103 MINUTE ORDER of 10/13/95 by Hon. Ruben Castillo : Granting defendant's motion for leave to file additional appearance of Lucia Nale [102-1]. Telephoned notice (fce) (Entered: 10/14/1995)
104 ATTORNEY APPEARANCE for defendant by Lucia Nale (fce) (Entered: 10/14/1995)
105 RULE 39 Affidavit of Lucia Nale (fce) (Entered: 10/14/1995)
SCHEDULE set on 10/25/95 by Hon. Ruben Castillo : By agreement between the parties the status hearing is reset to 9:00 a.m. on 11/13/95. Telephoned notice (rao) (Entered: 10/25/1995)
SCHEDULE set on 11/13/95 by Hon. Ruben Castillo : Status hearing held and continued to 9:00 a.m. on 2/12/96. Status report due 1/31/96. Fact discovery cutoff extended to 1/31/96. No notice - advised in open court. (rao) (Entered: 11/13/1995)
106 MOTION by plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks for leave to file additional appearance ; Notice of agreed motion. (smm) (Entered: 11/30/1995)

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11/28/1995
11/28/1995 11/28/1995 01/04/1996
01/04/1996
03/01/1996 03/01/1996 03/08/1996
03/27/1996
03/28/1996 03/28/1996 03/28/1996
04/17/1996 04/18/1996 04/18/1996 04/18/1996

107 MINUTE ORDER of 11/28/95 by Hon. Ruben Castillo : Plaintiffs' agreed motion for leave to file additional appearance of John H. Wickert is granted [106-1]. Telephone notice. (smm) (Entered: 11/30/1995)
108 ATTORNEY APPEARANCE for plaintiffs Selma S Buycks-Roberson, Calvin R Roberson, Renee Brooks by John Henry Wickert (smm) (Entered: 11/30/1995)
109 RULE 39 Affidavit of John Henry Wickert (smm) (Entered: 11/30/1995)
110 MOTION by plaintiff to compel Citibank to produce discovery and for an extension of discovery (Attachments); Notice of motion (yap) (Entered: 01/05/1996)
111 MINUTE ORDER of 1/4/96 by Hon. Ruben Castillo : Status hearing reset to 9:00 a.m. on 3/8/96 Parties to file joint status report by 3/1/96 Plaintiff's motion to compel Citibank to produce discovery [110-1] is withdrawn by agreement. Plaintiff's motion for an extension of discovery [110-2] is granted. Fact discovery cutoff extended to 3/29/96. Mailed notice (yap) (Entered: 01/05/1996)
112 STATUS REPORT by defendant; Notice of filing. (yap) (Entered: 03/04/1996)
113 STATUS REPORT by plaintiff Selma S Buycks-Roberson; Notice of filing. (yap) (Entered: 03/04/1996)
SCHEDULE set on 3/8/96 by Hon. Ruben Castillo : Status hearing held and continued to 9:00 a.m. on 4/24/96. Fact discovery cutoff extended to 5/1/96. Plaintiffs to designate any expert witnesses and fully comply with Rule 26(a)(2) by 6/3/96. Defendant to designate any expert witnesses and fully comply with Rule 26(a)(2) by 7/5/96. Mailed notice (rao) (Entered: 03/08/1996)
114 RESPONSE by defendant Citibank Fed Svg Bk to plaintiffs' motion to compel (Attachments); Notice of filing; Affidavit of Mary Ann Spiegel (eav) (Entered: 03/28/1996)
115 AMENDED NOTICE by plaintiffs of motion to compel production of loan files (eav) (Entered: 03/29/1996)
116 Document Sealed (pursuant to Court Order) (eav) (Entered: 03/29/1996)
117 MINUTE ORDER of 3/28/96 by Hon. Ruben Castillo : Plaintiffs' motion to compel production of loan files is denied without prejudice for reasons stated in open court. No notice (eav) (Entered: 03/29/1996)
118 RESPONSE by defendant to plaintiffs' renewed motion to compel production of loan files (Attachments); Notice of filing (eav) (Entered: 04/18/1996)
119 MOTION by defendant to compel answers to contention interrogatories (Attachments); Notice of motion (eav) (Entered: 04/19/1996)
120 Document Sealed (pursuant to Court Order) (eav) (Entered: 04/19/1996)
121 MINUTE ORDER of 4/18/96 by Hon. Ruben Castillo : Status hearing set for 04/24/96 is vacated. Plaintiffs' reply to their renewed motion to compel production of certain documents from Citibank's loan files is due 04/29/96. Defendant's sur-reply is due 05/06/96. Plaintiff's sur-response is due 05/10/96. Motion will be taken under advisement and the Court will rule by mail.

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04/29/1996 05/06/1996 05/08/1996 05/10/1996 06/07/1996 06/12/1996
07/11/1996 07/16/1996 07/29/1996 07/31/1996 08/01/1996
08/02/1996 08/12/1996
09/06/1996

Defendant's motion to compel answers to contention interrogatories is entered and continued generally until the Court rules on plaintiffs' renewed motion to compel production of certain documents. All litigation dates are suspended until the Court rules on plaintiffs' renewed motion to compel production of certain documents. [119-1] Mailed notice (eav) (Entered: 04/19/1996)
122 Document Sealed (pursuant to Court Order) (eav) (Entered: 04/30/1996)
123 SUPPLEMENTAL response by defendant to plaintiffs' renewed motion to compel [118-1] (Attachments); Notice of filing. (fce) (Entered: 05/07/1996)
124 SUPPLEMENTAL AFFIDAVIT of Thomas S. Neubig; Notice of filing (eav) (Entered: 05/09/1996)
125 Document Sealed (pursuant to Court Order of 11/17/94 and Local General Rule 10). Plaintiffs' sur-reply in support of their request for loan files and summary forms; Notice of filing. (RESTRICTED) (eav) (Entered: 05/13/1996)
127 MINUTE ORDER of 6/7/96 by Hon. Ruben Castillo : Plaintiff's renewed motion to compel certain loan files is granted. [119-1] (See reverse of minute order.) Mailed notice (eav) (Entered: 06/10/1996)
128 MINUTE ORDER of 6/12/96 by Hon. Ruben Castillo : Pursuant to this Court's 06/07/96 order, defendant's motion to compel answers to contention interrogatories [119-1] is denied as moot. Mailed notice (eav) (Entered: 06/13/1996)
129 NOTICE of change of firm name (eav) (Entered: 07/12/1996)
SCHEDULE set on 7/16/96 by Hon. Ruben Castillo : Status hearing set for 9:30 a.m. on 9/11/96. Mailed notice (rao) (Entered: 07/16/1996)
131 MOTION by defendant for protective order (Exhibits); Notice of motion (eav) (Entered: 08/02/1996)
130 RESPONSE by plaintiff to Citibank's motion for protective order (Attachments); Notice of filing (eav) (Entered: 08/01/1996)
132 MINUTE ORDER of 8/1/96 by Hon. Ruben Castillo : Plaintiffs are directed to submit in-camera by 08/14/96 their litigation plan and who are the recipients of the letters in question. [131-1] Defendant's reply to their motion for protective order is due 08/14/96. Motion will be taken under advisement and the Court will rule by mail. [131-1] No notice (eav) (Entered: 08/02/1996)
133 MOTION by defendant for leave to withdraw motion for protective order ; Notice of motion (eav) (Entered: 08/14/1996)
134 MINUTE ORDER of 8/12/96 by Hon. Ruben Castillo : Defendant's motion for leave to withdraw motion for protective order is granted. [133-1] Defendant's motion for protective order [131-1] is withdrawn. Mailed notice (eav) (Entered: 08/14/1996)
135 MOTION by plaintiffs for extension of time for their expert reports and answers to contention interrogatories (Attachment); Notice of motion (eav) (Entered: 09/12/1996)

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09/11/1996
11/04/1996 11/05/1996 12/09/1996 12/13/1996
01/22/1997 02/03/1997
03/04/1997 03/10/1997

136 MINUTE ORDER of 9/11/96 by Hon. Ruben Castillo : Status held and continued to 11/21/96 at 9:00 a.m. Plaintiffs' motion for extension of time for their experts reports and answers to contention interrogatories is granted. [135-1] Plaintiffs to identify all experts and fully comply with Rule 26(a)(2) by 11/15/96. Defendants to identify all experts and fully comply with Rule 26(a)(2) by 01/16/97. Expert discovery cutoff extended to 02/17/97. Any dispositive motions to be filed by 02/17/97. Mailed notice (eav) (Entered: 09/12/1996)
137 AGREED MOTION by plaintiffs to extend discovery dates ; Notice of motion (eav) (Entered: 11/06/1996)
138 MINUTE ORDER of 11/5/96 by Hon. Ruben Castillo : Status hearing re-set for 12/20/96 at 9:30 a.m. Parties' agreed motion to extend discovery dates is granted. [137-1] Plaintiffs' expert reports and answers to contention interrogatories are due 12/16/96. Defendant's expert reports are due 02/17/97. Expert discovery cutoff extended to 03/17/97. Any dispositive motions will be due 03/17/97. Mailed notice (eav) (Entered: 11/06/1996)
139 SECOND AGREED MOTION by plaintiff to extend discovery dates ; Notice of motion (Temporarily unavailable for docketing) (eav) (Entered: 12/18/1996)
140 MINUTE ORDER of 12/13/96 by Hon. Ruben Castillo : Status hearing re-set for 01/22/97 at 9:00 a.m. Second agreed motion to extend discovery dates is granted. [139-1] Plaintiffs to designate experts and fully comply with Rule 26(a)(2) by 02/17/97. Defendants' to designate experts and fully comply with Rule 26(a)(2) by 04/17/97. Expert discovery cutoff set for 05/16/97. Any dispositive motions will be due 05/16/97. Parties to note the schedule is a little different from that stated in the agreed motion. Mailed notice (eav) Modified on 01/27/1997 (Entered: 12/18/1996)
SCHEDULE set on 1/22/97 by Hon. Ruben Castillo : Counsel's oral request to reset the status hearing is granted. Status hearing reset to 9:00 a.m. on 2/3/97. Mailed notice (rao) (Entered: 01/22/1997)
SCHEDULE set on 2/3/97 by Hon. Ruben Castillo : Status hearing held. Settlement conference set for 10:00 a.m. on 2/20/97. Parties with settlement authority are directed to appear or be available by telephone. Parties oral request to continue all dates 30 days is granted. Discovery ordered closed on 6/16/97. Any dispositive motions are to be filed by 6/16/97. Plaintiffs to designate all experts and fully comply with Rule 26(a)(2) by 3/17/97. Defendant to designate all experts and fully comply with Rule 26(a)(2) by 5/16/97. Mailed notice (rao) (Entered: 02/04/1997)
SCHEDULE set on 3/4/97 by Hon. Ruben Castillo : Settlement conference reset to 2:00 p.m. on 3/10/97. Parties with settlement authority are directed to appear or be available by telephone. Mailed notice (rao) (Entered: 03/04/1997)
SCHEDULE set on 3/10/97 by Hon. Ruben Castillo : Settlement conference held and continued to 4:30 p.m. on 6/2/97. Parties are instructed to fully exhaust all settlement possibilities prior to the next settlement conference. The court is willing to hold the next settlement conference sooner than 6/2/97 if mutually agreed to by the parties. Mailed notice (rao) (Entered: 03/11/1997)

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05/23/1997 05/29/1997
06/26/1997
07/25/1997 07/31/1997 09/05/1997 09/05/1997 09/09/1997 09/12/1997 09/18/1997
09/29/1997
10/10/1997 10/14/1997 10/16/1997 10/31/1997

141 MOTION by defendant to modify pretrial schedule ; Notice of motion (yap) (Entered: 06/04/1997)
142 MINUTE ORDER of 5/29/97 by Hon. Ruben Castillo: The defendant's motion to modify pretrial schedule [141-1] is granted. Expert disclosures is extended to 7/7/97. Settlement conference set for 6/2/97 is reset to 7/2/97 at 4:30 p.m. No notice (yap) (Entered: 06/04/1997)
SCHEDULE set on 6/26/97 by Hon. Ruben Castillo : Parties oral request to reset settlement conference is granted. Settlement conference reset to 4:30 p.m. on 7/29/97. Parties with settlement authority are directed to appear or be available by telephone. Mailed notice (rao) (Entered: 06/26/1997)
143 SETTLEMENT STATEMENT and appenadix of exhibits in support of its settlement statement by defendant. (RESTRICTED) (tlm) (Entered: 07/29/1997)
SCHEDULE set on 7/31/97 by Hon. Ruben Castillo : Settlement conference reset to 4:30 p.m. on 9/9/97. Mailed notice (rao) (Entered: 07/31/1997)
144 RESPONSE by plaintiffs to Citibankps "Settlement Statement". (RESTRICTED) (tlm) (Entered: 09/08/1997)
145 NOTICE OF FILING by plaintiff regarding response [144-1] (tlm) (Entered: 09/08/1997)
SCHEDULE set on 9/9/97 by Hon. Ruben Castillo : Settlement conference reset to 3:30 p.m. on 9/12/97. Mailed notice (rao) (Entered: 09/09/1997)
SCHEDULE set on 9/12/97 by Hon. Ruben Castillo : Settlement conference held and continued to 4:00 p.m. on 9/18/97. Mailed notice (rao) (Entered: 09/15/1997)
SCHEDULE set on 9/18/97 by Hon. Ruben Castillo : Settlement conference held and continued to 4:30 p.m. on 9/29/97. Parties are ordered to fully exhaust all settlement possibilities prior to the final settlement conference on 9/29/97. Mailed notice (rao) (Entered: 09/23/1997)
SCHEDULE set on 9/29/97 by Hon. Ruben Castillo : Settlement conference held in chambers. The Court has determined that this case does not appear likely to settle in the near future. Status hearing set for 9:00 a.m. on 11/12/97. Any dispositive motions are to be filed on or before 10/30/97. Mailed notice (rao) (Entered: 09/29/1997)
146 MOTION by Defendant for leave to withdraw appearance of Maryann Spiegel ; Notice of motion. (tlm) (Entered: 10/21/1997)
147 MINUTE ORDER of 10/14/97 by Hon. Ruben Castillo : Defendant's motion for leave to withdraw appearance of Maryann Spiegel is granted. [146-1] Telephoned notice (tlm) (Entered: 10/21/1997)
148 MOTION by plaintiffs for sanctions against Citibank and/or its counsel ; Notice of motion (RESTRICTED) (mjc) Modified on 11/13/1997 (Entered: 11/13/1997)
156 APPENDIX of exhibits filed by defendant in support of its motion for summary judgment (2 vols: 156-1 through 156-2) (Temporarily unavailable for docketing.)(RESTRICTED) (fce) (Entered: 01/15/1998)

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10/31/1997 10/31/1997 10/31/1997 10/31/1997 10/31/1997 10/31/1997 10/31/1997 11/06/1997
11/12/1997
11/13/1997 11/18/1997

157 MOTION by defendant Citibank Fed Svg Bk for leave to file oversized brief in support of its motion in limine instanter (Temporarily unavailable for docketing.) (fce) Modified on 01/16/1998 (Entered: 01/15/1998)
158 MOTION by defendant Citibank Fed Svg Bk for leave to file oversized brief in support of its motion for summary judgment instanter ; Notice of filing (Temporarily unavailable for docketing.) (fce) Modified on 01/16/1998 (Entered: 01/15/1998)
159 MOTION by defendant Citibank Fed Svg Bk for summary judgment (Temporarily unavailable for docketing.) (fce) Modified on 01/16/1998 (Entered: 01/15/1998)
160 BRIEF by defendant Citibank Fed Svg Bk in support of its motion for summary judgment [159-1] (Temporarily unavailable for docketing.)(RESTRICTED) (fce) (Entered: 01/15/1998)
161 MOTION by defendant Citibank Fed Svg Bk in limine to exclude the testimony of plaintiffs' experts (Temporarily unavailable for docketing.) (fce) Modified on 01/16/1998 (Entered: 01/15/1998)
162 BRIEF by defendant Citibank Fed Svg Bk in support of motion in limine to exclude the testimony of plaintiffs' experts [161-1] (Temporarily unavailable for docketing.)(RESTRICTED) (fce) (Entered: 01/15/1998)
163 LOCAL RULE 12(M) Statement in support of its motion for summary judgment against the class and the named plaintiffs by defendant Citibank Fed Svg Bk (Temporarily unavailable for docketing.)(RESTRICTED) (fce) (Entered: 01/15/1998)
151 MINUTE ORDER of 11/6/97 by Hon. Ruben Castillo : Defendant Citibank's motion for leave to file oversized brief in support of its motion for summary judgment instanter and defendant Citibank's motion to file oversized brief in support of its motion in limine are granted. Mailed notice (mjc) (Entered: 11/19/1997)
149 MINUTE ORDER of 11/12/97 by Hon. Ruben Castillo : Oral argument on defendant's motion in limine to exclude the testimony of plaintiffs' experts is set for 11/24/97 at 3:00 p.m. Defendant's motion for summary judgment against the class and the named plaintiffs is entered and continued to 11/24/97. Defendant's response to plaintiffs' motion for sanctions against Citibank and/or its counsel [148-1] is due 12/29/97. Plaintiffs' reply is due 1/26/98. Motion [148-1] will be taken under advisement and the court will rule by mail. Status hearing held. Mailed notice (mjc) (Entered: 11/13/1997)
150 MINUTE ORDER of 11/13/97 by Hon. Ruben Castillo : Oral argument on defendant's motion in limine to exclude the testimony of plaintiffs' experts is reset to 12/4/97 at 4:30 p.m. Mailed notice (mjc) (Entered: 11/14/1997)
152 MINUTE ORDER of 11/18/97 by Hon. Ruben Castillo : Defendant's motion for summary judgment against the class and the named plaintiffs is entered and continued to 12/4/97 at 4:40 p.m. Mailed notice (mjc) (Entered: 11/20/1997)

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12/04/1997
12/04/1997
12/23/1997 01/02/1998 01/12/1998 01/15/1998 01/15/1998 01/15/1998 01/21/1998 02/10/1998 03/27/1998 03/30/1998 04/20/1998
04/20/1998

153 MINUTE ORDER of 12/4/97 by Hon. Ruben Castillo : The parties have indicated in a letter to the court that a full proposed settlement has been reached in this case. The parties are given until 12/22/97 to file a joint motion for preliminary approval of the proposed class settlement. Mailed notice (mjc) (Entered: 12/05/1997)
154 MINUTE ORDER of 12/4/97 by Hon. Ruben Castillo : The parties report, as confirmed in writing, that a full proposed settlement has been reached in this class action case. While the court is considering the proposed settlement this lawsuit is hereby administratively taken off this court's active docket and dismissed without prejudice with full rights to reinstatement if this court rejects the proposed settlement. All litigation dates in this case are hereby vacated. All pending motions are denied [148-1] as moot. Terminating case. Mailed notice (mjc) (Entered: 12/05/1997)
SCHEDULE set on 12/23/97 by Hon. Ruben Castillo : Parties are given until 12/31/97 to file the appropriate settlement documents dismissing this action with prejudice. Mailed notice (rao) (Entered: 12/23/1997)
155 TRANSCRIPT of proceedings for the following date(s): 11/12/97 Before Honorable Ruben Castillo (mjc) (Entered: 01/05/1998)
164 JOINT MOTION for preliminary approval of settlement agreement ; Notice of motion (mjc) (Entered: 01/21/1998)
165 MINUTE ORDER of 1/15/98 by Hon. Ruben Castillo : Joint motion for preliminary approval of settlement agreement is granted [164-1]. Fairness hearing set for 4/20/98 at 1:00 p.m. Mailed notice (mjc) (Entered: 01/16/1998)
166 SETTLEMENT AGREEMENT by parties (Exhibits) (mjc) (Entered: 01/16/1998)
167 PRELIMINARY APPROVAL ORDER regarding motion for preliminary approval of settlement agreement [164-1] (Exhibit) (mjc) (Entered: 01/22/1998)
168 MINUTE ORDER of 1/21/98 by Hon. Ruben Castillo : Enter preliminary approval order. Mailed notice (mjc) (Entered: 01/22/1998)
169 MINUTE ORDER of 2/10/98 by Hon. Ruben Castillo: The Court hereby approves the Revised Class Settlement Notice as submitted on 02/09/98. Mailed notice (hp) (Entered: 02/11/1998)
170 PROOFS OF CLAIM by class plaintiff (Exhibits) (mjc) Modified on 04/01/1998 (Entered: 03/31/1998)
171 PROOFS OF CLAIM by class plaintiffs; Notice of filing (mjc) Modified on 04/01/1998 (Entered: 04/01/1998)
SCHEDULE set on 4/20/98 by Hon. Ruben Castillo : Fairness hearing held. Plaintiffs' fee petition to be filed by 4/27/98. Defendant's response is due 5/4/98. Plaintiff's reply is due 5/11/98. Court will rule by mail. Mailed notice (rao) (Entered: 04/20/1998)
172 SUPPLEMENTAL filing of plaintiffs' proofs of claim by plaintiffs (Exhibit); Notice of filing (mjc) Modified on 04/28/1998 (Entered: 04/21/1998)

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04/20/1998 04/27/1998 04/27/1998 05/04/1998 05/07/1998 05/07/1998
05/07/1998
05/07/1998 05/12/1998 05/12/1998 05/12/1998

173 AFFIDAVIT of Lucia Nale (mjc) (Entered: 04/21/1998)
174 PETITION by plaintiffs for an award of attorneys' fees (Exhibits) (mjc) (Entered: 04/29/1998)
175 NOTICE of filing by plaintiffs regarding petition for an award of attorneys' fees [174-1] (mjc) Modified on 05/04/1998 (Entered: 04/29/1998)
176 RESPONSE by defendant to plaintiffs' motion for an award of attorneys' fees [174-1]; Notice of filing (mjc) (Entered: 05/05/1998)
177 ORDER regarding motion for an award of attorneys' fees [174-1] (eav) (Entered: 05/08/1998)
178 MINUTE ORDER of 5/7/98 by Hon. Ruben Castillo : Enter order. Plaintiffs' petition for attorneys' fees is granted. [174-1] The Court hereby awards plaintiffs' a total of $950,000 in attorneys' fees and costs. Mailed notice (eav) (Entered: 05/08/1998)
179 MINUTE ORDER of 5/7/98 by Hon. Ruben Castillo : All matters having been resolved and pursuant to the Settlement Agreement, this case is hereby dismissed with prejudice. Mailed notice (eav) (Entered: 05/08/1998)
180 ENTERED JUDGMENT (eav) (Entered: 05/08/1998)
181 FINAL JUDGMENT with order (mjc) (Entered: 05/13/1998)
181 ORDER of dismissal with final judgment (mjc) (Entered: 05/13/1998)
182 MINUTE ORDER of 5/12/98 by Hon. Ruben Castillo : Enter final judgment and order of dismissal. Mailed notice (mjc) (Entered: 05/13/1998)

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SELMA S. BUYCKS-ROBERSON;

)

CALVIN R. ROBERSON; and

)

RENE BROOKS, on behalf of

)

themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CITIBANK FEDERAL SAVINGS

)

BANK,

)

)

Defendant.

)

MEMORANDUM OPINION AND ORDER Plaintiffs have filed several motions to compel the production of documents and answers to interrogatories during the last few months. The Court pauses here to note that this case has already had an early history of significant discovery disputes. l The Court is hopeful that its separate opinion, which was released today on the issue of class certification, will help the parties determine the proper scope of discovery and obviate these types of disputes in the future. Further discovery disputes from this point forward will cause this Court to consider whether this case is an appropriate matter to mandate automatic disclosure under FED. R. Crv. P.26(a)(1). The Court will now directly address the merits of the Plaintiffs' Third and Fourth Motions to Compel, which are currently pending before this Court. We will also address Plaintiffs / Motion

1 See Motion to Compel Responses To Discovery (Doc. #23);

Amended Motion to Compel Discovery (Doc. #26); and the two Motions

to Compel which are the sUbject of this Opinion.

Q"Jrt

1
j

for Sanctions related to citibank's alleged failure to comply with
FED. R. Crv. P. 30 (b) (6) . A. Mo"tions"to Compel
The Court previously requested citibank to address two specific questions in its response to the Third Motion to Compel Discovery: (1) whether citibank was "drawing a line in the sand" and refusing to provide any additional discovery or was proposing some more measured alternatives to Plaintiffs' sweeping discovery demands; and (2) what citibank's response is to Plaintiffs' arguments that the discovery to date (seventy-three loan files with certain redactions) has uncovered a pattern of discrimination in citibank's mortgage lending. These questions apply equally to the Fourth Motion to Compel.
In response to the second question, citibank flatly denies that the seventy-three files produced thus far establish the alleged pattern of discriminatory lending. Instead, citibank steadfastly maintains that the underwriting criteria were racially neutral on their face and as applied. citibank also maintains that the evidence will establish that each of the named defendants was denied the home loans he or she requested due to his or her lack of financial qualifications. Because the focus of litigation will be whether citibank applied its allegedly neutral criteria in a racially discriminatory fashion, citibank contends that the issue of individual financial qualifications will require discovery relevant to each plaintiff's personal claims.
Thus far citibank has sought to limit discovery to the named
2

plaintiffs' claims. citibank asserts that it "is prepared to produce some additional loan files, provided that the scope of that production is reasonably related to the issues raised by the individual claims." citibank' s Response to the Third Motion to Compel at 2. However, "individual claims" are not the sole basis for this litigation, given this Court's decision to certify a class for purposes of injunctive or declaratory relief with respect to Plaintiffs' redlining claims. The Court's ruling necessitates a broader scope of discovery to enable Plaintiffs to prove their case, and this "broader scope" does not permit the kind of "sampling approach" suggested by citibank.
citibank's suggested "sampling approach" goes to the heart of the Court's first question. While citibank is not "drawing a line in the sand" by refusing to provide any additional discovery (it will provide an additional twenty files totalling ninety-three files produced), it is not proposing a graduated approach to discovery either. Rather, citibank apparently believes that it can provide a "sample" of ninety-three redacted2 loan files from the Oakbrook and Broadview areas of Chicago to serve as accurate examples of its policies and practices regarding its "debt-toincome" criteria (used to reject Buycks-Roberson's application); its "collateral criteria" (used to reject Brooks' application); and its "subordinate financing criteria" (used to reject Roberson's
2 The redactions include not only the applicants' names, but also their addresses, towns, zip codes, and narrative portions of the appraisal information on their properties. See Plaintiffs' Fourth Motion to Compel Discovery at 14.
3

application) as applied to Caucasian and African-American applicants between 1992 and 1994.
Plaintiffs object to the sampling approach and assert that they need files from the entire Chicago metropolitan area, since
they seek to prove a claim of discrimination on behalf of all
financially qualified African-Americans denied mortgage loans who
lived in predominately African-American communities between 1992
and 1994-not simply those who lived in Broadview. Although citibank makes various proposals to expand the document production to include other minority areas, at most its proposals amount to a
"self-selected" sampling for the sole purpose of sparing citibank the "time-consuming, expensive process to locate and redact" thousands of loan files.
The Court has carefully reviewed each of Plaintiffs' Motions
to Compel and citibank's responses to the Motions. Many of the
arguments contained in these Motions relate to the merits of the
case and the statistical evidence that ultimately will need to be
analyzed on summary jUdgment and/or at trial. For purposes of
rUling on the present Motions, the Court will not address all of the arguments raised. 3 To the extent that these arguments are
relevant at this stage of the proceedings, the Court has attempted
3 We want strongly to emphasize that a motion to reconsider filed solely for the purpose of raising any argument already contained in the motions and memoranda to rehash the same points already argued will result in a summary denial. Although motions to reconsider serve a useful role in bringing new facts or errors of law to the Court's attention, as noted in Jefferson v. Sec. Pac., 1995 WL 360710 (N.D. Ill. June 14, 1995), this Court will not countenance motions to reconsider filed simply to bring the parties' position to the Court's attention one more time.
4

to incorporate them into its ruling on class certification.
Suffice it to say that citibank's sampling approach is not the
kind of graduated or principle oriented limitation of discovery
that this Court might be willing to allow. Having certified a
class on the issue of redlining for purposes of injunctive or
declaratory relief, we find that Plaintiffs' discovery requests
identified in its Motions to Compel are reasonable. We therefore
grant these Motions in their entirety with only two conditions.
First, Plaintiffs' request for loan files without redacted
addresses is denied. Specific street addresses are not necessary
to the claims of the plaintiff class. Second, the previously
redacted names of towns, zip codes and narrative appraisal
information are relevant information for the redlining claims and
should be produced by citibank on all document&-including those
which have already been given to Plaintiffs as part of citibank's
self-selected sample.
B. Sanct:ions
Plaintiffs have also filed a Motion for Sanctions against
citibank pursuant to FEDERAL RULE OF CIVIL PROCEDURE ("Rule") 37(d).
Rule 37(d) provides in relevant part:
Rule 37. Failure to Make Disclosure or cooperate in Discovery: Sanctions
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. [Effective December 1, 1993.] If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b) (6) ... to testify on behalf of a party fails (1) to appear before the. officer who is to take the deposition, after being served with the proper notice, . . . the court in which the action is pending on motion may make such orders in regard to the
5

failure as are just, and among others it may take any
action authorized under subparagraphs (A), (B), and (C) of subdivision (b) (2) of this rule. ,Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expense, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

******

FED. R. CIV. P. 37 (d) •

Rule 37(b) (2) permits sanctions for failure to permit

discovery pursuant to Rule 30(b) (6). Rule 30(b) (6) provides in

relevant part:

Rule 30. Depositions Upon Oral Examination

(0) Notice of Examination: organization.

Deposition of

(6) A party may in the party's notice and in a subpoena

name as the deponent a pUblic or private corporation or

partnership

and describe with reasonable

particularity the matters on which examination is

requested. In that event, the organization so named

shall designate one or more officers, directors, or

managing agents, or other persons who consent to testify

on its behalf, and may set forth, for each person

designated the matters on which the person will testify.

The persons so designated shall testify as to

matters known or reasonably available to the

organization. . . .

****

FED. R. CIV. P. 30 (b) (6) .

In Federal Deposit Ins. Corp. v. Butcher, 116 F.R.D. 196 (E.D.

Tenn. 1986), the court interpreted Rule 30(b) (6) to mean that a

6

corporation has a duty to:
make a conscientious good faith effort to designate the persons having knowledge of the matters sought by the [discovering party] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the discovering party] as to the relevant subject matters.
116 F.R.D. at 199 (citing Mitsui & Co. v. Puerto Rico Water
Resources Auth., 93 F.R.D. 62, 67 (D.P.R. 1981)).
Plaintiffs claim that Rule 37(d) sanctions should be leveled
against citibank for its failure to produce a knowledgeable
deposition witness pursuant to Rule 30(b) (6). In Resolution Trust
Corp. v. Southern Union Co., 985 F.2d 196, 197 (5th Cir. 1993), the
Fifth Circuit stated:
Rule 37 authorizes the district court to impose sanctions against a party for failing to appear "before the officer who is to take the deposition, after being served with the proper notice. II ••• Rule 30 (b) (6) . . . places the burden of identifying responsive witnesses for a corporation on the corporation. Obviously, this presents a potential for abuse which is not extant where the party noticing the deposition specifies the deponent. When a corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that agent. If that agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all.
985 F.2d at 197.
Plaintiffs allege that their Rule 30(b) (6) notice of
deposition requested citibank to designate a person who could
testify about citibank' s underwriting pOlicies and practices.
However, although citibank had a duty to produce such a witness, it
produced Ms. Haywood instead. Ms. Haywood concededly was only able
to testify regarding the underwriting pOlicies and practices of
7

citibank's Yellow Team. In addition, Ms. Haywood could not (1) confirm from personal knowledge that every other underwriting team at citibank in 1992 followed the same practices as her group; or (2) testify from personal knowledge regarding citibank' s underwriting policies and practices during 1993 with respect to Plaintiff Calvin Roberson. Plaintiff argues that the appearance of an unknowledgeable Rule 30(b) (6) witness such as Ms. Haywood is tantamount to no appearance at all.
citibank's responses are not convincing. As to Ms. Haywood's lack of personal knowledge, citibank asserts that "it is difficult and time-consuming to investigate unwritten practices that were in effect three years ago." citibank Resp. at 4. citibank also claims that the practices of groups other than the Yellow Team in 1992 are not relevant to any of the issues in this case. citibank Resp. at 5. These responses are unpersuasive because they fail to confront the fact that citibank had a duty to provide a witness or witnesses with the requisite knowledge and to prepare these witnesses, despite the difficulty of investigating the sUbject matter requested by the deposing party. Moreover, the fact that Ms. Haywood had personal. knowledge as to Plaintiffs Buycks-Roberson and Brooks, because the Yellow Team handled their applications in 1992, does not provide justification for her failure to know about the practices employed in Calvin Roberson's case in 1993.
citibank's response to the Motion for Sanctions is similar to its responses to the Motions to Compel Discovery. That is, citibank seems to believe that it can satisfy Rule 30 (b) (6) by
8

producing a witness with only selected information to offer and describe that information the only relevant information available, just as it attempts to offer a "sample" of documents and interrogatory answers by selecting what it considers to be the relevant material. The Federal Rules and this court do not countenance self-selecting discovery by either party.
Nonetheless, although all of citibank's arguments prove similarly meritless, Plaintiffs have failed to certify that they presented citibank with their objections to the Rule 30 (b) (6) deposition before filing this Motion. without this good faith certification, the Court cannot award sanctions or the other expenses requested by Plaintiffs.
Moreover, this Court is mindful that its rUling today certifying the plaintiff class certainly impacts the scope of discovery and the reasonableness of citibank's Rule 30(b) (6) witness choice. The Court remains hopeful that this Opinion will avoid the need for further disputes about the proper conduct of discovery in this case and will not hesitate to award sanctions in the future if such sanctions are warranted.
CONCLUSION
The Plaintiffs' Third and Fourth Motions to Compel are GRANTED conditionally, as noted in this Opinion. The Plaintiffs' Motion for Sanctions is DENIED. The date for the completion of fact discovery in this case is hereby extended to December 29, 1995.
9

June 29, 1995

Ruben Castlllo United states District Judge

10.

i
I.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Selma S. BUYCRS-ROBERSON,

)

Renee BROORS, and Calvin ROBERSON)

on behalf of themselves and

)

others similarly situated,

)

)

)

Plaintiffs

)

)

vs.

)

)

CITIBANK FEDERAL SAVINGS

)

BANK,

)

)

Defendant.

)

No. 94 C 4094 JUdge castillo

NOTICE OF DEPOSITION TO: All Counsel of Record per the attached service list

PLEASE TAKE NOTICE that, pursuant to Fed. R. civ. P.

30(b) (6), we shall appear before a notary pUblic or other person

authorized to administer oaths to take the DEPOSITION of the

following person at the date and time indicated below, at the

offices of Robinson Curley & Clayton, P.C., 300 South Wacker

Drive, Chicago, Illinois 60606. The deposition will continue

from day-to-day until completed.

Deponent

The person most

May 1, 1995

knowledgeable of deponent,

citibank Federal Savings

Bank's, horne loan underwriting

policies and practices.

10:00 a.m.

Selma Buycks-Roberson; Calvin R. Roberson; and Renee Brooks, on behalf of themselves and others similarly situated,

By: ttorneys

Fay Clayton Hilary I. Alexis Sara N. Love ROBINSON CURLEY & CLAYTON, P.C. 300 South Wacker Drive suite 1700 Chicago, Illinois 60606 (312) 663-3100
2

 
 DOC\(E1'EO

IN THE UNITED STATES DISTRICT-COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SELMA S. BUYCKS-ROBERSON;

)

CALVIN R. ROBERSON; and

)

RENE BROOKS, on behalf of

)

themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CITIBANK FEDERAL SAVINGS

)

BANK,

)

)

Defendant.

)

No. 94 C 4094 Judge castillo

JUN ~ () 19(35
\l. ~lUt&l t\\l\l\\l\~

MEMORANDUM OPINION AND ORDER Plaintiffs Selma S. Buycks-Roberson, Calvin R. Roberson and Rene Brooks ("Plaintiffs") are African-American and sue defendant citibank Federal Savings Bank ("Citibank") seeking redress for alleged racial discrimination and discriminatory redlining1 practices in connection with citibank's home loan application approval process. Count I of the complaint alleges that citibank intentionally discriminated against the Plaintiffs on the basis of race with respect to a credit transaction in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. Count II alleges that citibank, whose business includes engaging in transactions related to residential real estate, discriminated against the

lRedlining has been defined as "mortgage credit discrimination based on the characteristics of the neighborhood surrounding the would-be borrower's dwelling." Thomas v. First Fed. Sav. Bank of Ind., 653 F. SUpp. 1330, 1337 (N.D. Ind. 1987). See also NAACP v. AFMI Co., 978 F.2d 287, 290 (7th cir. 1992), cert. denied, 113 S.ct. 2335 (1993); cartwright v. American Savs. Ass'n, 880 F.2d 912, 922 (7th Cir. 1989).

Plaintiffs on the basis of race or color in violation of the Fair

Housing Act, 42 U.S.C. § 360l, et seq. Count III alleges that

citibank / s discriminatory acts violate the Thirteenth Amendment and

invokes 42 U.S.C. § 1981, which secures the right of plaintiffs to make and enforce contracts on the same basis as Caucasian2

citizens / and 42 U. S. C. § 1982, which secures the right of

plaintiffs to inherit, purchase, lease, sell, hold and convey real

and personal property on the same basis as white citizens.

Plaintiffs seek injunctive relief, actual damages and punitive

damages with respect to all three counts.

Pursuant to Federal Rule of civil Procedure 23/ Plaintiffs

move for class certification on all counts.

Specifically,

Plaintiffs propose that the class be defined as all African-

Americans who filed home loan applications with citibank on or

after JUly 6, 1992,3 and whose applications were rejected on the

2Plaintiffs define the Caucasian race to include persons of European and Asian descent. The sole Hispanic applicant in the relevant statistical group has been excluded from Plaintiffs / proposed class. See Plaintiffs / Memorandum In Support Of Their Third Motion To Compel Discovery at 9 n.5.
3The statutes of limitation for all three counts require a plaintiff to file his or her action no later than two years from the date of the occurrence of the violation. See l5 U. S. C. § 1691e(f) (count I); 42 U.S.C. § 3613 (a) (1) (A) (Count II); 42 U.S.C. § 1983 (Count III) (§§ 1981 and 1982 claims must satisfy the twoyear Illinois statute of limitations applicable to a "tort action for the recovery of damages for personal injuries." See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Kalimara v. Illinois Dep't of corrections, 879 F.2d 276, 276-77 (7th Cir. 1989); Lewellen v. Morley, 875 F.2d 118/ l19 (7th Cir. 1989). Plaintiffs propose that the class consist of all African-Americans whose home loan applications were filed within two years of the date on which the original complaint was filed, i.e., July 6/ 1994. Compl. ~ 8(b). The Court notes that any alleged violations of the above statutes would not occur until citibank actually rejected an application. Plaintiffs are given leave to file an amended complaint redefining the class as all African-Americans whose home loan applications

Ii
basis of race, color or the racial composition of the neighborhood
in which their properties were located. See Amended Compl. ~ 8(b).
BACKGROUND4
Se1.ma S. Buycks-Roberson5
On approximately April 4, 1992, Selma Buycks-Roberson applied
for a home loan of approximately $43,700 from citibank. Compl. ~
9. Ms. Buycks-Roberson wished to use the loan to refinance an
existing mortgage of approximately $43,500 on her home, located at
2057 South 25th Avenue in Broadview, Illinois. Compl. ~ 10. The
property that Ms. Buycks-Roberson attempted to refinance is located
in a neighborhood in which the African-American representation is
growing and currently constitutes over fifty percent of that
neighborhood's population. Compl. ~ 11.
In conjunction with her application, Ms. Buycks-Roberson
were rejected on or after July 6, 1992.
4When evaluating a motion for class certification, the Court accepts all well-pleaded facts as true. See Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993) ("the allegations made in support of certification are taken as true"); Allen v. City of Chicago, 828 F. Supp. 543, 550 (N .D. Ill. 1993) (same) . Accordingly, the following recitation of background facts is derived from the allegations of the complaint and, where appropriate, facts alleged in Plaintiffs' memorandum and reply in support of class certification.7
5At the time her loan application was denied, Plaintiff BuycksRoberson lived in Kenwood, a predominantly African-American neighborhood. Citibank cites statistics indicating that "Kenwood's racial composition at [the time Buycks-Roberson's application was rej ected] was 76% African-American, 20% white and 4% other." citibank's Suppl. Mem. at 10 (citing 1992 Woodstock Institute Report). "Brooks therefore represents a class of persons who are both African-American and who lived in predominantly AfricanAmerican neighborhoods at the time citibank rejected their loan applications.
3

provided to citibank extensive documentation concerning the property and her financial status / including documents showing annual income of over $47/000. compl. ~ 12. On approximately April 28, 1992, Ms. Buycks-Roberson received from citibank a letter informing her that her mortgage loan application had been denied because of delinquent credit obligations and other adverse credit history. CompI. ~ 13. On June 19, 1992, Ms. Buycks-Roberson reapplied for the home loan, and again provided to citibank extensive documentation concerning her annual income, financial status and information concerning her credit worthiness. Compl. ~ 14. On or after JUly 10/ 1992/ Ms. Buycks-Roberson received from citibank a letter informing her that citibank had denied her mortgage loan application because her "income [did] not support the amount of credit requested.~ Compl. ,-r 15. Ms. Buycks-Roberson alleges that she was qualified to receive the loan she sought from citibank. Compl. ~ 16. Calvin R. Roberson6
On approximately July 9/ 1993/ Calvin Roberson applied for a home loan of approximately $43/000 from citibank. Mr. Roberson wished to use the loan to refinance an existing mortgage of approximately $43/000 on his home, located at 2847 West 85th street

6At the time his application was denied, Calvin Roberson lived

in Ashburn, a predominantly White neighborhood. citibank cites

statistics indicating that "[t]he racial composition of that

neighborhood

was 10% African-American, 83% White and 7%

other." citibank/s Suppl. Mem. at 12. Roberson therefore can

represent only a class of plaintiffs consisting of African-

Americans who were denied home loans during the class period, not

class members who were African-American and lived in predominantly

African-American neighborhoods.

4

in Chicago, Illinois. Compl. ~ 18. The property that Mr. Roberson attempted to refinance is located in a neighborhood where the
African-American representation is growing. compl. ~ 19. Mr. Roberson provided citibank with all requested documentation,
including documents showing an annual income of approximately
$69,000 from his management position at AT&T and the equity in his
home valued at approximately $75,000. Mr. Roberson also provided
documentation showing additional liquid assets well in excess of
the amount of the loan requested. Mr. Roberson's income was more
than sufficient to enable him to meet his credit obligations.
Compl. ~ 20. On approximately July 9, 1993, Mr. Roberson received a letter from citibank denying his application for refinancing on grounds that it was "incomplete" and citibank did not "make this
type of loan." CompI. ~ 21. Mr. Roberson alleges that he was qualified to receive the loan he sought from citibank. CompI. ~ 22.
Rene Brooks7
On approximately November 25, 1993, Rene Brooks applied for a
home loan of approximately $95,000 from citibank. Compl. ~ 23. Ms. Brooks wished to use the loan to refinance an existing mortgage
of approximately $95,000 on her condominium, located at 5000 South
7At the time her application was denied, Rene Brooks lived in Kenwood, a predominantly African-American neighborhood. citibank cites statistics indicating that "Kenwood's racial composition at [the time Brook's application was rejected] was 76% AfricanAmerican, 20% White and 4% other." citibank's SuppI. Mem. at 10 (citing 1992 Woodstock Institute Report). Brooks therefore represents a class of persons who are both African-American and who lived in predominantly African-American neighborhoods at the time citibank rejected their loan applications.
5

----------------------------------
Cornell street in Chicago, Illinois. The property that Ms. Brooks attempted to refinance is located in a neighborhood with a significant African-American population. Compl. ~ 26. Ms. Brooks provided citibank with all required documentation. CompI. ~ 24. On approximately March 8, 1994, citibank denied Ms. Brooks' application for a home loan on the grounds that she had inadequate collateral and that she had submitted an incomplete application. Compl. ~ 27. Ms. Brooks alleges that she was qualified to receive the home loan she sought from citibank. Compl. ~ 28. statistics
The Home Mortgage Disclosure Act ("HMDA") data8 provided by both parties indicates that in 1992 and 1993, the percentage of loan applications approved by citibank was far lower in areas where the racial composition of the neighborhood was predominantly African-American than it was in areas where the composition of the neighborhood was predominantly White. In 1992, for example, citibank denied refinancing loans to only 19% of upper-income applicants living in areas with less than 10% minority populations. In that same year and income bracket, Citibank denied refinancing loans to 42% of the applicants in areas with an 80-100% minority population. PIs. Reply, Ex. F. Plaintiffs allege that this data
8Home Mortgage Disclosure Act data is required to be submitted by lending institutions to the Federal Financial Institutions Examination Council. Plaintiffs' theory is that the HMDA data show that "as the percentage of minorities in an area increases, the percentage of loans approved decreases, regardless of income." See HMDA Table 7-3 and accompanying percentage table, Ex. L to Plaintiffs' Memorandum In Support of Their Third Motion to compel Discovery at 13 n.9 and accompanying text.
6

r:
"strongly suggest (s) that African-American home loan applicants and applicants from largely African-American neighborhoods are discriminated against by citibank in significantly large numbers even though some African-Americans receive loans." PIs. Reply at 9. Plaintiffs also claim that these statistics demonstrate that citibank had a policy of rejecting home loan applications on the basis of the applicants' race, color or the racial composition of the neighborhood in which their properties were located.
Plaintiffs also assert that the 1992 and 1993 Loan Application Registers for citibank in Illinois show that over 780 AfricanAmericans were denied home loans in the state of Illinois alone between 1992 and 1993, and that this fact supports Plaintiffs' claim that citibank has exhibited a pattern of discrimination based on race.
ANALYSIS The party seeking class certification bears the burden of establishing that certification is appropriate. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th cir. 1984). After careful review, the Court concludes that Plaintiffs have carried their burden. Rule 23 requires a two-step analysis to determine whether class certification is appropriate. First, a plaintiff must satisfy all four requirements of Rule 23 (a) . That is, "the plaintiff must meet the prerequisites of numerosity, commonality,
typicality and adequacy of representation." Harriston v. Chicago
7

•J ~
Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (internal quotation marks omitted). "All of these elements are prerequisites to certification; failure to meet anyone of them precludes certification as a class." Retired Chicago Police Ass'n, 7 F.3d at 596; Harriston, 992 F.2d at 703. Second, the action must satisfy one of the three subsections of Rule 23 (b) . Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).
Plaintiffs in this case seek certification under either Rule 23(b) (2) or Rule 23(b) (3). Where a class can be certified under either Rule 23(b)(2) or 23(b)(3), courts have generally held certification under Rule 23(b) (2) to be preferable. See H. NEWBERG, CLASS ACTIONS § 4.20 (1992) and cases cited therein. Because the Court finds that this action falls squarely within the reach of Rule 23 (b) (2), which provides for certification if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole," FED. R. CIV. P. 23 (b) (2), this Opinion addresses only the requirements for certification under Rule 23 (b) (2) .
Plaintiffs maintain that all of the requirements of Rule 23(a) and (b) (2) are met. citibank does not dispute the appropriateness of Rule 23(b) (2) to the facts of the instant case, but contends that the plaintiffs fail to satisfy any of Rule 23(a)'s prerequisites.
8

A. Rule 23 (a)
As a threshold matter, citibank contends that Plaintiffs have failed to identify a class with sufficient "definiteness." Definiteness of the proposed class is an implicit requirement of Rule 23(a). See Alliance to End Repression, 565 F.2d at 977; Gomez v. Illinois State Ed. of Educ., 117 F.R.D. 394, 397 (N.D. Ill. 1987). with respect to this requirement, the Seventh Circuit has stated that the scope of a class may be defined by reference to the defendants' conduct. Alliance to End Repression, 565 F.2d at 978. citibank argues that Plaintiffs have offered "no definition of a class beyond all blacks who applied but did not obtain loans from Citibank," and "rejection alone does not indicate discrimination," because "[t]housands of white applicants also have been rejected." Def.'s Opp. Mem. at 1.
In the instant case, the Court disagrees with citibank that the plaintiffs' proposed class is insufficiently definite. The class has been defined to include only African-Americans whose applications for home mortgage loans were rejected by citibank on or after July 6, 1992, or who lived in predominantly minority neighborhoods at the time their applications were denied. As defined, the class definition properly focuses on defendant' s conduct with respect to the denial rate of African-American home loan applicants, in general, and African-Americans living in African-American neighborhoods, in particular. The definiteness threshold requirement is therefore met. See Alliance to End Repression, 565 F.2d at 977; Gomez, 117 F.R.D. at 397.
9

Courts retain broad power to modify the definition of a proposed class. See, e.g., Metropolitan Area Hous. Alliance v. united States Dep't of Hous. & Urban Dev., 69 F.R.D. 633 (N.D. Ill. 1976) (citing Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D. Ill. 1974)) ("[a] court may modify the proposed definition of a class if it believes the definition is inadequate"); see also C.A. WRIGHT, et al., FEDERAL PRACTICE & PROCEDURE § 1760 at 127-28 (2d ed. 1986). This Court retains the power to modify the class definition at any time before a final judgment on the merits, if the evidence or the legal principles governing this case establishes that the class definition is too broad. FED. R. CIV. P. 23 (c) (1). We now address the explicit requirements of Rule 23(a).
1. Numerosity Rule 23(a) (1) requires that the class be "so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). In making this determination, "the court is entitled to make common sense assumptions." Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D. Ill. 1988). See also In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D. Ill. 1991). Additionally, although "the one who asserts the class must show some evidence or reasonable estimate of the number of class members[,] if a plaintiff cannot provide precise numbers, "a good faith estimate is sufficient [to satisfy the numerosity requirement] where it is difficult to assess the exact class membership." Long v. Thornton Township High Sch. Dist. 205, 82 F.R.D. 186, 189 (N.D. Ill. 1979).
10

Plaintiffs allege that citibank denied horne loans to over 780 African-Americans between 1992 and 1993. The HMDA data also suggest that a substantial percentage of these African-American applicants sought horne loans for properties located in predominantly African-American neighborhoods. Plaintiffs have cited cases in which classes were certified with fewer than 780 members. ·See Concerned Tenants Ass'n of Indian Trails Apartments v. Indian Trails Apartments, 496 F. Supp. 522 (N.D. Ill. 1980) (certifying a class consisting of 360 tenants and their families in a housing discrimination case) i Edmondson v. simon, 86 F.R.D. 375 (N.D. Ill. 1980) (certifying a class consisting of 170 members);
Riordan v. smith Barney, 113 F.R.D. 60 (N.D. Ill. 1986) (certifying a class consisting of 29 plaintiffs); Contract Buyers League v. F
& F Inv., 48 F.R.D. 7 (N.D. Ill. 1969) (certifying a class consisting of 50 African-American horne buyers). Thus, even if the number of class members in this case were less than half that alleged by the Plaintiffs, the case law cited above indicates that class certification is appropriate . Given that a "good faith estimate" is sufficient to satisfy Rule 23(a) (1), this Court finds that the numerosity requirement has been met.
2. Commonality Rule 23(a) (2) requires the presence of questions of law or fact common to the class. "A common nucleus of operative fact is usually enough to satisfy the commonality requirement," Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (citing Franklin v. City of Chicago, 102 F.R.D. 944, 949-50 (N.D. Ill. 1984», and
11

"some factual variation among the class grievances will not defeat
a class action." Rosario, 963 F.2d at 1017. Indeed, as noted in
Gomez:
[t]here need only be a single issue [of law or fact] common to all members of the class," (Edmonson v. Simon, 86 F.R.D. 375, 380 (N.D. Ill. 1980», and differences in individual class members' cases concerning damages or treatments will not defeat commonality. Tonya K. v. chicago Board of Education, 551 F. SUpp. 1107, 1110 (N. D. Ill. 1982). "Especially in the context of Rule 23(b) (2) class actions, distinct factual contexts will be unified under a common claim for equitable relief." Christiano v. Courts of Justices of the Peace, 115 F.R.D. 240, 24748 (D. Del. 1987).
117 F.R.D. at 399.
The parties' arguments on the issue of commonality are as
follows. Plaintiffs assert that the common issues of law and fact
in this case are: (1) whether citibank employed pOlicies or engaged
in practices or procedures which resulted in the denial of African-
Americans' home loan applications on the basis of the applicant's
race; and (2) whether citibank personnel practiced redlining by
applying its underwriting criteria in a sUbjective manner which
resulted in the denial of home loans to African-Americans in
predominantly African-American communities. PIs. Mem. at 6; PIs.
Reply at 5 (citing citibank's policy manual as Ex. A).
citibank contends that the Plaintiffs have not challenged any
particular underwriting criteria that applies generally to any
class. 9 According to Citibank, without such a claim, this case
cannot be certified for class treatment, because each class
9 According to citibank, its "lending decisions were, and are, the result of a highly individualized, case-by-case underwriting process." See citibank's Supple Mem. at 2.
12

member's case "will turn on the facts specific to the applicant's

financial condition and credit history." Def's Opp. Mem. Intro.

"Individual instances of alleged discrimination cannot simply be

combined with the common characteristic of race to create a

certifiable class." Def.'s Opp. Mem. at 2. Rather, "to

demonstrate commonality and typicality, the plaintiffs in this case

must show a particular policy affecting all members ofa class in

the same way." Def.'s Opp. Mem. at 3 (citing Falcon, 457 U.S. at

157) .

The following analysis resolves the problems citibank raises.

Plaintiffs ' pivotal allegation is that citibank gives its loan

originators considerable discretion when making loan decisions,

such that they may "request additional information from applicants

to explain potentially adverse information contained in their

credit history profiles before a decision. . to approve their

loan is made," or they may identify certain applicants as

"desirable customers" who are then given "preferential treatment."

See PIs. Reply at 5. Although these allegations do not prove race

discrimination, they are sufficient to raise an issue as to whether

citibank used its discretion to apply the otherwise neutral

underwriting criter.ia in a way which resulted in the denial of home

loans to African-Americans based on their race or the racial

composition of their neighborhoods.

Certainly, where the

subjective decisions of citibank employees allow citibank to

systematically discriminate on the basis of race or the racial

composition of the applicant's neighborhood when choosing among

13

minimally qualified applicants, common issues of law and fact exist regardless of individual differences. See Hartman v. Duffey, 19 F.3d 1459, 1471 (D.e.eir. 1994). For the reasons discussed below, the Court finds that this allegation of "subjective decisionmaking" is sufficient to satisfy the commonality requirement of Rule 23(a) (2) and the dictates of General Tel. Co. v. Falcon, 457 U.S. 147 (1982).
We begin by addressing eitibank's arguments against certification. eitibank's primary contention is that individual issues regarding the class members' financial qualifications for the home loans will defeat certification. The question of individual issues does not defeat commonality, as demonstrated below; moreover, these issues are more properly the focus of the Court's Rule 23(b) (2) analysis and thus will not be discussed in depth here.
eitibank' s alternative argument is that Plaintiffs have failed to identify a particular policy or practice "generally applicable" to the class which will unify the individual and class claims under a common theory. Having failed to identify such a practice, citibank claims that Plaintiffs' only common nexus is their race; and race alone is not sufficient to establish commonality. See Falcon, 457 U.S. at 159, 162. See also Hartman v. DUffey, 19 F.3d 1459 (D.e.eir. 1994) ("[a]s Falcon made clear, there is more to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on the basis of membership in a particular group.") . To support their "policy and practice" argument,
14

citibank has cited several cases where class certification was denied based on a plaintiff's failure to identify a "standardized" practice generally applicable to the class. See Washington v. Brown, 959 F.2d 1566, 1570 (11th Cir. 1992) (class certification denied where African-American plaintiffs failed to identify a specific employment practice); Coon v. Georgia Pac. Corp., 829 F.2d 1563, 1566-67 (11th Cir. 1987) (class certification denied where female plaintiffs failed to identify a common injury); Allen v. city of Chicago, 828 F. Supp. 543, 552-553 (N.D. Ill. 1993) (class certification denied where African-American and Hispanic plaintiffs failed to allege a discriminatory "standardized emploYment practice" generally applicable to the class). The common theme in these cases is that a plaintiff seeking class certification must allege a "nexus" or a "unifying force" other than race between the class representatives and the proposed members of the class.
The unifying force between the named representatives' claims and those of the proposed class is the allegation that citibank sUbjectively applied its neutral underwriting criteria in a way which resulted in the denial of home loans to African-American applicants on the basis of race or the racial composition of the neighborhoods in which the applicants lived. Plaintiffs' failure to "challenge any particular underwriting criteria that applies generally to the class" is not relevant, since the alleged "policy or practice" at issue is citibank's subjective application of these criteria, not the particular types of underwriting criteria, alone. This "subjective decisionmaking" (outlined in the policy manual
15

attached as Ex. A to PIs. Reply) is the practice which is

"generally applicable" to the class.

This allegation of sUbjectivity raises a question of law and

fact common to this class because it "refers to standardized

conduct" by citibank towards the class members, see Allen, 828 F.

Supp. at 551. The sUbjective application of neutral underwriting

criteria is standardized conduct because the loan originators have

the opportunity to use their discretion with respect to each loan

applicant. Moreover, this standardized conduct can be readily

identified for purposes of assessing evidence of disparate impact.

See generally Perez v. FBI, 707 F. SUpp. 891 (W.D. Tex. 1988) (class

of Hispanic FBI agents challenging race-discrimination in violation

of Title VII were certified by alleging the sUbjective application

of neutral employment practices had disparate impact). Where a

defendant's allegedly standardized conduct is at issue,

"differences in individual cases regarding treatment or damages

does not defeat commonality." Allen, 828 F. SUpp. at 551 (citing

cases); Hartman, 19 F. 3d at 1471 ("given sufficient proof, an

unsuccessful applicant for one job can presumably challenge

discriminatory hiring for different job categories where the

primary practices used to discriminate in the different categories

are themselves similar").

Thus, although the particular

underwriting criteria applied-to each class representative in this

case may be distinct, 10 the relevant conduct at issue is ci tibank' s

lOIn opposition to a related motion to compel discovery, citibank argued that "[i]n the case of plaintiff Buycks-Roberson, the focus of the litigation will be whether citibank applied its
16

allegedly 'subjective11 application of facially neutral underwriting
criteria, in general, to the class members certified by this Court.
The Supreme Court's decision in General Tel. Co. v. Falcon,
457 U.S. 147 (1982), is instructive. 12 In Falcon, a Mexican-
debt-to-income criteria in a racially discriminatory fashion. . . . As to Brooks, the issue will be whether citibank applied its collateral criteria in a racially discriminatory fashion . . . . As to Roberson, the issue will be whether citibank applied its subordinate financing criteria in a racially discriminatory fashion." See citibank's Response To Plaintiffs' Third Motion To Compel Discovery at 2.
11 In this Opinion, the Court's use of the term "subjective" means that citibank's employees were given considerable discretion to apply distinct types of underwriting criteria to individual applicants.
12The Court has not found a case directly on point from the Seventh Circuit or the district courts within this Circuit. We have found several Seventh Circuit cases that involved certified classes that alleged racial redlining practices against defendants other than lending institutions. These cases provide tangential support for certification in this case. See generally NAACP v. AFMI Co., 978 F.2d 287 (7th Cir. 1992), cert. denied, 113 S.ct. 2335 (1993) (class challenged insurance company's practice of denying coverage to applicants applying for home mortgage loans when the applicant wished to live in redline areas with large or growing numbers of minority residents); Southend Neighborhood Improvement Ass'n. v. county of st. Clair, 743 F.2d 1207 (7th Cir. 1984) (class challenged county policies regarding tax-delinquent properties that allegedly discriminated against African-Americans in violation of the Fair Housing Act, various civil rights statutes and the Thirteenth Amendment). Cf. cartwright v. American Savings Ass'n, 880 F.2d 912 (7th Cir. 1989) (non-certified minority plaintiffs brought redlining challenge against lending institution but lost because she had not provided bank with necessary information to qualify for loan). The Seventh Circuit has also allowed class actions to proceed where the allegations involved race discrimination in the context of home-loan guarantee programs, see Jorman v. Veterans Admin., 830 F.2d 1420 (7th Cir. 1987), and land installment contracts where the plaintiffs alleged that land owners sold homes to African-American buyers at higher prices and on less favorable terms than were available to similarly situated White buyers in violation of their civil rights. See Clark v. Universal Builders, Inc.; 706 F.2d 204 (7th Cir. 1983) ("Clark II"); Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir. 1973) ("Clark I").
17

American plaintiff alleged that his employer refused to promote him because of his race. This plaintiff then sought to certify a class of persons who were also Mexican-American and had not been hired or promoted by the defendant. Falcon, 457 U.S. at 149-50. The Supreme Court held that a class representative must allege more than adverse treatment based on race discrimination; rather, the representative must additionally identify a discriminatory pOlicy or practice by the defendant which is "generally applicable" to the proposed class members. Id. at 159 n.15. In other words, the Court must focus on the defendant's standard conduct toward the minority plaintiffs and determine whether that allegedly discriminatory conduct caused a common injury "typical of the class claims." Falcon, 457 U.S. at 157.
As stated by the Court: Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class. . if the discrimination manifested itself . . . in the same general fashion, such as through entirely subjective decisionmaking processes. Id. at 159 n.15. Thus, a specific policy of discrimination or a "general policy" of "general application" such as a "biased testing procedure" will satisfy the commonality and typicality requirements of Rule 23. Id. Like biased testing procedures, the sUbjective application of otherwise neutral underwriting criteria can lead to discrimination, even if several types of criteria are applied to individual applicants. See e.g., Allen v. Isaac, 99 F.R.D. 45, 54 (N.D. Ill. 1983) (Hart, J.) (class certified in disparate impact case involving
18

race discrimination where primary allegation was that defendant's test for promotion was applied by decisionmaker vested with great discretion); Lawson v. Metropolitan Sanitary Dist. of Greater chicago, 102 F.R.D. 783, 785 (N.D. Ill. 1983) (Getzendanner, J.) (certifying class of African-American plaintiffs challenging use of "promotion examinations that have a disparate impact on blacks
[and] demoting blacks based on sUbj ective and invalid performance standards"). In this case, like other disparate impact cases, Plaintiffs allege that discrimination takes place through the subjective application of facially neutral underwriting criteria which have an adverse impact on the protected group. The discriminatory policy or practice arises out of the sUbjectivity and discretion vested in the decisionmaker (the loan originator) and can be proved by use of expert testimony and statistical evidence showing "disparities rather than specific incidents of discrimination" between the relevant comparison groups. See Perez, 707 F. SUppa at 898-99.
The class representatives have alleged that a class of persons have suffered the same injury from citibank which they have suffered, namely, the denial of home loans based on race discrimination. Plaintiffs also allege that home loans were denied to African-Americans by means of "subjective decisionmaking" practices related to the application of facially neutral underwriting criteria. These allegations are distinct from Falcon, where the plaintiff's injury was distinct from the injury of the proposed class members, and race was the only "unifying force"
19

between them. We therefore find that the commonality requirement

is satisfied under Falcon.

Finally, citibank' s argument that certification should be

denied in this case because the factual contexts and individual

damages vary among the class representatives and potential class

members is not supportable.

Although the factual context

underlying each class member's claim may be distinct, "distinct

factual contexts will be unified under a common claim for equitable

relief." Christiano, 115 F.R.D. at 247-48; Allen, 828 F. Supp. 551.

The unifying force or common claim for equitable relief in this

case is the allegation that citibank used its discretion to deny

home loans to African-Americans. We believe that this allegation

satisfies Rule 23(a) (2).

3. Typicality 13

Rule 23(a) (3) requires that the representative plaintiffs'

claims be typical of those of the class as·a whole. The Seventh

Circuit defined the typicality requirement in De La Fuente v.

stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983), as follows:

A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.

Id. at 232 (quoting H. NEvvBERG, CLASS ACTIONS § 115 (b) (1977». The

Court of Appeals went on to note that factual identity between the

claims of the named plaintiffs and the other class members is not

13Commonality and typicality are closely related and a finding of one generally compels a finding of the ot.her. See NEWBERG ON CLASS ACTIONS, § 3.13.
20

necessary to satisfy the typicality requirement and that
"similarity of legal theory may control even in the face of
differences of fact." Id.; accord Retired Chicago Police Ass'n, 7
F.3d at 597. In this case, the sole legal theory underlying
Plaintiffs' claims is that citibank's alleged redlining policy,
coupled with its discriminatory pattern of denying home loans to
African-American applicants, violates the Equal Credit opportunity
Act, the Fair Housing Act, and the Plaintiffs' constitutional
rights under the Thirteenth Amendment.
citibank opposes certification on the basis of typicality by
arguing that:
[eJach decision to grant or deny a mortgage loan application depends upon a myriad of individual facts including income, existing credit obligations, credit history, employment history, the amount of financing being sought, and the value of the property being financed. Proof that Citibank allegedly applied its lending criteria in a discriminatory fashion to one applicant would not establish that any other rejected applicant was qualified to receive a loan under citibank's lending criteria or that citibank discriminated in applying its lending criteria to that applicant.
See Def.'s Opp. at 9. In particular, citibank argues that neither
injunctive nor compensatory relief can be fashioned for an entire
class "absent a challenge to a particular Citibank underwriting
criteria." Id. According to Citibank, without such a challenge,
the Plaintiffs' cannot prove discrimination, because the
"plaintiffS must demonstrate that their claims are based upon the
same core of factual allegations such that proof of one plaintiff's
claims would establish the bulk of the elements of each class
member's claims." See citibank's Suppl. Mem. at 3-4 (citing Allen,
21

828 F. Supp. at 553) .
Once again, citibank misses the point. It is the allegedly discriminatory sUbjective application of citibank's neutral underwriting criteria as a whole that may have adversely impacted
the class. Plainly, the named plaintiffs' claims arise out of the same alleged course of conduct giving rise to the claims of the
other class members. Although citibank may ultimately prove that
they did not engage in a pattern of race discrimination by rej ecting African-Americans' applications for home loans, the
determination of whether the named plaintiffs are typical class members for purposes of class certification does not depend upon
resolving the merits of this case. The typicality requirement is
satisfied because the named representatives' claims have the "same essential characteristics" as the potential class, i.e., they were
African-Americans who were allegedly denied home loan based upon their race or the racial composition of their neighborhoods. 14
4. Adequacy of Representation
Rule 23 (a) (4) 's adequacy of representation requirement has two elements: "'the adequacy of the named plaintiff's counsel, and the adequacy of representation provided in protecting the different,
14 In fact, citibank' s argument that different types of underwriting criteria may have been applied to applicants based on an "individualized treatment of the [applicant's] circumstances," see Ci~ibank's Suppl. Mem. a~ 5, simply lends credence to Plaintiffs' theory that the neutral underwriting criteria were being applied to the class members with considerable SUbjectivity. If the statistical evidence shows that the class members were given " individualized treatment" based on "circumstances" related to their race or the racial composition of their neighborhoods, then Plaintiffs' claims may be valid.
22

separate, and distinct interest [s]' of the class members." Retired Chicago Police Ass'n, 7 F.3d at 598 (quoting Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986) (en bane)). Thus, "[a] class is not fairly and adequately represented if class members have antagonistic or conflicting interests." Fitzsimmons, 805 F.2d at 697. Moreover, "it is settled law that the presence of even an arguable defense against the named plaintiff that is not applicable to the proposed class, or in this case subclass, can vitiate the adequacy of named plaintiff's representation." Hardin v. Harshbarger, 814 F. SUpp. 703, 708 (N.D. Ill. 1993) (citations omitted) .
with respect to the adequacy of counsel, Plaintiffs claim that, because counsel has previously acted on behalf of other classes, "they will be adequate again." PIs. Mem. at 8 (citing Fitzsimmons, 805 F.2d at 697). with respect to the class representatives, Plaintiffs assert that the interests of BuycksRoberson are not divergent from or antagonistic to those of the class. Nonetheless, Plaintiffs assert that Selma Brooks and Calvin Roberson are adequate representatives, even if Buycks-Roberson is not.
citibank's arguments are less conclusory. citibank contends that the major focus of this litigation will be the individual members' financial qualifications for the home loans at issue. According to citibank, the named Plaintiffs' lacked the qualifications to receive these loans under the applicable underwriting procedures. citibank argues that these are "unique
23

defenses" which will distract the class representatives from vigorously advocating on behalf of the class. See Hardin, 814 F. Supp. at 708; Koos v. First Nat'] Bank of Peoria, 496 F.2d 1162, 1164-65 (7th Cir. 1974). citibank also claims that Plaintiff Buycks-Roberson has credibility problems that could harm the class members' case on cross-examination. citibank Resp. at 11. Finally, citibank asserts that Plaintiff Buycks-Roberson' s delay in pursuing class relief (1-1/2 years) makes her an inadequate representative. See Harriston v. Chicago Tribune Co., 992 F.2d 697 704 (7th Cir. 1993) .
citibank's contentions are meritless. First, citibank's "unique defenses" argument is not persuasive, because any "distraction" attending individual issues has been minimized, at least for purposes of certification, by the Court's ruling on the Rule 23 (b) (2) issues discussed below. Second, any credibility problems related to Buycks-Roberson are subsumed by the adequacy of the remaining two named representatives, Brooks and Roberson. Third, the asserted delay has no weight for purposes of the adequacy requirement. Not only was the delay in Harriston much longer (2-1/2 years), but this case has, as indicated, met all relevant statutes of limitation and therefore satisfied any legitimate time requirements. See Mem. Ope at note 3. Giving due consideration to the requirements for certification under Rule 23(a) (4), the Court finds that both Plaintiffs and their counsel are adequate representatives in this case.
24

B. Rule 23(b) (2) Rule 23(b) (2) provides in relevant part: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole[.]
FED. R • CIV. P • 2 3 (b) (2) •
In Edmondson v. Simon, 86 F.R.D. 375 (N.D. Ill. 1980), the district court found the "general applicability" requirement of Rule 23(b) (2) to mean that "the party opposing the class must have acted in a consistent manner toward members of the class so that [its] actions may be viewed as part of a pattern of activity." Id. at 382-83. However, "[a]ll the class members need not be aggrieved by or desire to challenge the defendants' conduct." Id. In the instant case, the general applicability requirement is satisfied by Plaintiffs' allegation that citibank engaged in a subjective application of neutral underwriting criteria for the purpose of racial discrimination.
As a general matter, Rule 23(b) (2) is invoked in cases where injunctive or declaratory relief is the primary or exclusive relief sought. Where a plaintiff seeks both injunctive and monetary relief, however, courts have adopted various approaches to maintaining the economy of a class action while assuring comportment with due process in the allocation of individual damages. Some cases have allowed damages to be adjudicated in a
25

Rule 23(b) (2) action where the monetary damages are merely
ancillary to the injunction relief sought. See, e. g., Edmonson, 86
F.R.D. at 383; Williams v. Lane, 129 F.R.D. 636, 639 (N.D. Ill.
1990); Lawson v. Metropolitan Sanitary Dist. of Greater Chicago,
102 F.R.D. 783, 793 (N.D. Ill. 1983). One court notes, however,
that:
the cases in which this has been permitted appear to be cases in which the award of damages flows automatically from the grant of injunctive or declaratory relief, and in which the damages are subject to ready calculation on the basis of a formula or principles uniformly applicable to the class.
Rice v. city of Philadelphia, 66 F.R.D. 17, 20 (E.D. Pa. 1974); see
also Fischer v. Dallas Fed. Sav. and Loan Ass'n, 106 F.R.D. 465,
470 (1985), aff'd, 835 F.2d 567 (5th Cir. 1988).
Efficiency and economy are the principal purposes of a class
action procedure. Falcon, 457 U. S. at 159; Vuyanich v., Republic
Nat'l Bank of Dallas, 723 F.2d 1195, 1199, 1200-01 (5th Cir.),
cert. denied, 469 U.S. 1073 (1984). The Court simply does not
believe that either of those purposes would be advanced by
certifying a class which could claim compensatory damages as a
class,15 even if those damages are ancillary to the primary
injunctive relief sought. The principle reason for this decision
is that any monetary damages in this case do not appear, at this
point in the litigation, to be "subject to ready calculation" on a
15As noted by the court in Fischer, in a class action for injunctive relief, the named plaintiffs may obtain individual damages, as well as costs and attorneys fees, in pursuing the class action to enj oin the alleged redlining practices, if they are successful in the liability phase of the case. 106 F.R.D. at 470 n.7.
26

basis "uniformly applicable to the class." Equitable relief,
however, appears to be an appropriate remedy if in fact citibank
denied home loans to financially qualified applicants based on
racial considerations. Equitable relief, unlike actual damages, is
not subject to individualized interests and is therefore
appropriate in this case. See Williams v. Lane, 129 F.R.D. 636, 640
(N.D. Ill.) ("[b]ecause members of the plaintiff class have
homogenous interests as to the injunctive relief, their interests
are sUfficiently protected by the Rule 23(a) (4) requirement .
. "). Based on this reasoning, the Court certifies the class for
injunctive relief only during the liability phase of the litigation
and will appoint a special master to hear individual claims for
damages, if necessary. The only reported cases16 the Court has found on this point
are Fischer v. Dallas Fed. Save & Loan Ass'n, 106 F.R.D. 465 (N.D.
Tex. 1985), aff'd, 835 F.2d 567 (5th Cir. 1988); Laufman v. Oakley
Bldg. & Loan Co., 72 F.R.D. 116, 121 (S.D. Ohio 1976);n Hanson v.
16Plaintiffs cite several unreported cases involving mortgage discrimination where class certification was granted, namely, Bishop v. Chemical Bank, No. 93-1938 (N.D. Ill.); United States v. Decatur Fed. Save & Loan Ass'n No.1 92-cv-2198 (N.D. Ga. 1992); and United States v. Chevy Chase Fed. Save Bank, No. 94-1824-JG (D.D.C. 1994).
17Citibank cited Laufman as support for its position that the class should not be certified given the numerous individual issues regarding the financial qualifications. In Laufman, a Caucasian married couple sued a lending institution for denying their home loan based on an alleged policy of redlining. The district court denied class certification in an unreported decision. Laufman, 72 F. R. D. at 121. Thus, we cannot determine whether the Laufmal1 court considered the possibility of certifying the class for injunctive or declaratory relief only rather than for damages. See Fischer, 106 F.R.D. at 471 n.8.
27

Veterans Admin., 800 F.2d 1381, 1383 n.2 (5th cir. 1986) ;18 and

Dunn v. Midwestern Indemnity, 88 F.R.D. 191 (S.D. Ohio 1980) .19

The Fischer case supports the Court's conclusion that the

facts of this case support certification of the class for

injunctive relief only. See Fischer, 106 F.R.D. 465 (certifying

class alleging illegal redlining by lending institution for

purposes of injunctive or declaratory relief, but not for purposes

of monetary damages due to presence of individualized claims). In

Fischer, the defendant lending institution denied a home loan to

the plaintiffs, an unmarried Caucasian couple, for property located

in a minority area in the city of Dallas. The plaintiffs brought

a class action challenging the denial as an impermissible practice

of redlining.

The district court certified the class for

injunctive relief only under Rule 23(b) (2) and declined to certify

the class for monetary damages due to the presence of individual

issues with respect to the class members' qualifications for the

loans. This certification order was not challenged on appeal. See

Fischer v, Dallas Fed. Save & Loan Ass'n, 835 F.2d 567 (5th Cir.

1988) .

rrpfceeolraparasoscosrtgnti1ecus8cdeasersfiamorantrbiiptylfeaptiehrtceliheylanel,tgaditVoieennhneoitHmacealfroeaniulonserolsftodnacA, dnedbtesrhmy.cteiiifsnpidiicolsiLaanstriittkaniroetiitinicnoft.ntfhHsceiaonnuwsLrtohahtonuedfmaedalanoplnieepesgdreaodnaipsoiamntrlioeoptpdnirrol,ooinnvcitiefnhdosgeesr

all by

19In Dunn, the court owing the non-certifie an insurance company.

allowed d minor

i

broad discove ty plaintiffs

ry to

for purposes of prove redlining

28

In the instant case, the plaintiffs seek actual and punitive damages for all class members. The calculation of damages "depends upon the individual facts of each claimant's case" and "virtually all of the issues would have to be Iitigated individually" to "determine whether a particular alleged class member was entitled to any damages at all." Rice v. city of Philadelphia, 66 F.R.D. 17, 20 (E.D. Pa. 1974). For example, the Court would be required to inquire into each of the loans, applicants and residences involved. A class member "would not be entitled to damages, either actual or punitive, if the individual [were] not qualified for the loan, or if the condition of the property caused the loan rejection." Fischer, 106 F.R.D. at 470. Because the plaintiff class is not sufficiently homogenous to allow the calculation of damages on the basis of "principles uniformly applicable to the class," Rice, 66 F.R.D. at 20, we conclude that the best solution in the instant case is to certify the class for purposes of determining citibank's liability (if any) and fashicning injunctive relief which is based on the common interests of the class members. The Court then will require individual claims for damages to proceed separately under Rule 23(d) (2), which allows individual class members to opt-out of the monetary damages phase. See generally Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 n.2 (7th Cir. 1987) (bifurcating case m,ay be best solution where plaintiff class is not sUfficiently homogenous to ensure fairness in consideration of the damage claims of absent members); Williams
v. Lane, 129 F.R.D. 636, 640-41 (N.D. Ill. 1990) ("many courts have
29

required that the case be bifurcated to allow the injunctive relief to be adjudicated under Rule 23(b) (2) and allow the damage claims to proceed separately . . . or as individual claims").
The Court recognizes that the question of each class member's individual financial qualifications will be critical. Eliminating ancillary monetary damages from the liability phase merely . simplifies the question; it does not provide a definitive resolution. On a motion for class certification we can assume that the allegations related to the class representatives' financial allegations are true. On summary judgment, that assumption evaporates, and the class representatives must produce enough evidence to support a judgment in their favor. For instance, to survive summary jUdgment on allegations that citibank was redlining, Plaintiffs will need to produce evidence challenging citibank' s assertion that the loans were denied to African-American applicants who lived in predominantly African-American communities due to inadequate financial qualifications. without such evidence neither the Court nor a jury could infer-on the basis of statistics alone-that citibank engaged in discriminatory redlining. Therefore, financial qualifications, at least for the class representatives, are a prerequisite for injunctive relief. 2o
20Injunctive relief can be fashioned to prevent citibank from redlining and/or to require citibank to (re) consider the class members' applications without regard to the racial composition of their respective neighborhoods, but injunctive relief cannot cure bad credit, and it cannot force a lending institution to make a loan if that credit is wanting . Injunctive relief also cannot force a bank to take a bad risk on a particular property, see Cartwright, 880 F.2d at 922.
30

Although citibank maintains that the individual qualifications of each potential class member should defeat certification, the Court has solved this problem by adopting the "class-wide presumption capable of rebuttal as to individual claimants used in securities fraud cases," see generally Jaroslawicz v. Engelhard Corporation, 724 F. Supp. 294, 301 (D.N.J. 1989), antitrust actions, In re Sugar Industry Antitrust Litig., 73 F.R.D. 322, 347 (E.D. Pa. 1976), and class actions brought under Title VII, Criak v. Minnesota state Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984).
Under this approach, the class representatives will need to offer evidence of their own financial qualifications before the Court determines the merits of their claims. Evidence that the class representatives were qualified for loans but rejected by citibank will create a presumption of qualification for the entire class for purposes of liability. The individual class members' financial qualifications and individual damages (if any) can then be determined after a resolution on the merits by committing these claims to a neutral jUdicial officer such as a special master. See generally Romasanta v. united Airlines, Inc., No. 70 C 1157 (N.D. Ill.) (Moran, J.) (court appointed special administrative master to determine the whether individuals could be members of the class and the kind of relief to be granted) .21
nThe Court is aware that numerosity problems could arise if the proposed class does not contained a sufficient number of financially qualified applicants. Rule 23 (c) (1) and (c) (4) provide for these contingencies, and the Court will exercise its power under these provisions if necessary.
31

The liability phase of this case will be a representative

action. In other words, no relief is available to the class unless

the class representatives offer sufficient evidence of: (1) their

financial qualifications for home loans; and (2) the statistical

disparity between loans denied to applicants of the Caucasian and

African-American races and applicants in different census tracts or

geographical areas. Thus, although discovery will be limited on

the issue of financial qualifications to the representative parties

for purposes of liability, the Court realizes that it must allow

Plaintiffs the kind of discovery that will permit them to prove the

existence of any statistical disparity between the relevant

comparison groups, as outlined in Cartwright, 880 F.2d at 922,22

and other disparate impact cases involving the sUbjective

application of otherwise facially neutral criteria. See e.g.,

Cedillo v. International Ass'n of Bridge & Structural Iron Workers,

Local Union No.1, 603 F.2d 7, 12 (7th Cir. 1979) ("where the need

for discovery . . to obtain the requisite statistical data to

substantiate the claims asserted is clear, and where plaintiff

[was]

. effectively denied the opportunity to engage in that

discovery,

. summary jUdgment is inappropriate").23 See also

22 In Cartwright, the Seventh Circuit wrote that "the obvious flaw in the appellants' 'disparity' argument is their failure to identify any relevant statistical evidence of the number of residential loan applications American Savings received from financially qualified borrowers in any particular census tract or geographic area, and how many of those applications it rejected." Id. (emphasis added).
23 The Memorandum Opinion and Order issued today on the related discovery disputes clarifies the Court's view on the appropriate scope of discovery for this lawsuit.
32

Perez v. FBI, 707 F. SUpp. 891 (W.D. Tex. 1988) (for a general

overview on the theory of disparate impact and the types of

evidence used to prove discrimination under this theory) .

The Court's comments regarding the monetary damages phase are

brief, given that this class is certified only for injunctive

relief and there has not yet been a determination of liability.

Several district courts have discussed the due process concerns

related to the need to provide notice to absent class members in

classes certified under Rule 23(b) (2) that contain claims for both

injunctive relief and monetary damages. See Allen v. Isaac, 100

F.R.D. 373, 375-77 (N.D. Ill. 1983) (Hart, J.); Williams v. Lane,

129 F.R.D. 636, 640-41 (N.D. Ill. 1990) (Shadur, J.). To avoid

claim preclusion and ensure due process, courts are advised to give

notice regarding a class member's right to opt-out of the damages

phase and to raise any objections to the class representation. See

Rice, 66 F.R.D. at 20. Although the issue of notice is not clear

cut in Rule 23(b) (2) cases, the issue is not yet relevant in this

case because the Court is certifying the class for injunctive

relief only. Williams, 129 F.R.D. at 639 (where case is certified

for injunctive relief "[m]embers of such a class generally share a

common interest in the direction and outcome of the case . . . and

a court does not violate the rights of individual class members by

failing to provide individual notice

. or an opportunity to

withdraw and pursue claims individually"). If citibank is

Ultimately found liable of redlining, the Court will address the

issue of notice under Rule 23(b) (2).

33

Finally, the definition of the class in this case is
simplified by certifying the class for injunctive relief only. As
the court in Rice stated: Defining a class as consisting of all persons who have been or will be affected by the conduct charged to the defendants is entirely appropriate where only injunctive or declaratory relief is sought.
66 F.R.D. at 20. The class members in this case can be defined by reference to citibank's alleged conduct, namely, African-Americans
who were denied home mortgage loans by citibank on the basis of
improper racial considerations.
CONCLUSION
The Plaintiffs' Motion for Class certification is granted under Rule 23(b) (2) for purposes of injunctive relief only. The
following class of persons is certified:
All African-Americans who filed applications for home loans to citibank on or after July 6, 1992, and whose applications were rej ected because they were AfricanAmerican and/or the racial composition of the neighborhoods in which their properties were located was predominantly African-American.
The Court express ly notes that under Rule 23 (c) (1), the
Court's order certifying this class is conditional and may be
amended before any decision on the merits. In addition,' Rule
23(c) (4) empowers the Court to divide the class into subclasses.
Should it appear in the course of litigation that the individual
issues in this case prevent efficient or just resolution, this
Court shall not hesitate to exercise the authority it retains to
create appropriate sub-classes represented by separate counselor
to take whatever other measures are necessary to ensure fairness of
34

representation. Plaintiffs are directed to file a Second Amended complaint
within fourteen (14) days from the date of this Order in conformance with the Court's directive in footnote 3. citibank will have twenty (20) days to answer. This case will be set for status on July 24, 1995, at 9:00 a.m. to discuss further proceedings in this case. The parties are directed to file a joint proposed discovery and litigation schedule which will govern this case for the Court's evaluation before July 20, 1995.

June 29, 1995

Ruben castillo united States District Judge

35