Anti-Discrimination and Fair Lending LITIGATION/CONTROVERSY

WilmerHale offers its clients broad experience and exceptional advocacy in all aspects of anti-discrimination and fair lending practice, including litigation, regulatory investigations and fair lending examinations, and compliance and counseling.

Our attorneys have extensive experience representing clients in anti-discrimination and fair lending matters in federal and state courts, as well as before regulatory bodies such as the Department of Justice, Consumer Financial Protection Bureau (CFPB), Federal Reserve, Department of the Treasury, Federal Trade Commission and state agencies. We have defended financial institutions, insurance companies, and automobile lenders and dealers in high-profile anti-discrimination and fair lending investigations and litigation against the government and private plaintiffs. We routinely counsel clients on compliance with anti-discrimination and fair lending laws—including the Fair Housing Act, Equal Credit Opportunity Act, and other federal and state anti-discrimination and consumer protection statutes—across all types of financial products and services, including mortgage, credit card, auto lending and more. Our attorneys have routinely advised and represented financial services clients in CFPB fair lending examinations and enforcement matters since the Bureau's inception in 2011.

WilmerHale's fair lending practice combines significant experience from our Financial Institutions Group and Government and Regulatory Litigation Group. Our team includes a former US Deputy Attorney General, former senior official in the Law Department of the Office of the Comptroller of the Currency, former Director of Litigation at the NAACP Legal Defense and Educational Fund, and former senior counselor to CFPB Director Richard Cordray—all of whom continue to be at the forefront of anti-discrimination and fair lending issues. Capitalizing on this broad experience, we benefit from a deep understanding of the relevant subject area, regularly counsel peer institutions on similar issues, and achieve optimal results for our clients.


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Ogden, David W.

David W. Ogden

Chair, Government and Regulatory Litigation Practice Group

+1 202 663 6440 (t)

Gutierrez, Franca Harris

Franca Harris Gutierrez

Vice Chair, Financial Institutions Practice Group

+1 202 663 6557 (t)


Litigation. We represent plaintiffs and defendants in civil litigation and class actions arising under anti-discrimination and fair lending laws. Examples of this experience include:

  • defending an investment bank in ongoing litigation brought by a purported class asserting disparate impact and discrimination claims relating to the investment bank's purchase and securitization of mortgage loans;
  • representing a bank in ongoing lawsuits filed by major cities relating to allegations that loans originated by the bank were discriminatory, leading to foreclosures and resulting in reduced tax revenue; and
  • defending a government-sponsored enterprise (GSE) in a purported class action asserting disparate impact discrimination claims relating to the GSE's automated underwriting system.

Enforcement and Investigations. We represent clients, including large financial institutions, in regulatory inquiries, examinations, investigations and enforcement matters conducted by the CFPB, Department of Justice, and other federal and state regulators. Our experience includes:

  • representing a captive automobile lender in investigations of lending practices by the CFPB, Department of Justice and New York Department of Financial Services;
  • representing two automobile dealers in a Department of Justice Civil Rights Division investigation regarding allegations that discretion given to salespersons resulted in discriminatory pricing of automobile loans;
  • representing a bank in a Department of Justice Civil Rights Division investigation into alleged discrimination arising out of the mortgage origination process, relating to the bank's purchase of a mortgage entity;
  • representing an insurance company in an investigation by a state attorney general regarding allegedly discriminatory criteria for pricing homeowner's insurance; and
  • representing a large financial institution in parallel CFPB and Department of Justice investigations and a potential enforcement action with respect to practices concerning consumer credit and small business offerings.

Counseling. Our team conducts internal compliance reviews and counsels large financial institutions and other clients, including industry trade associations, on compliance and policy issues under anti-discrimination and fair lending laws. This includes developing self-identification and remediation plans when and if issues are identified. We have helped clients navigate a wide range of anti-discrimination and fair lending issues, including:

  • addressing language accessibility issues arising from the provision of credit to consumers with limited English proficiency and credit offerings in US territories;
  • properly assessing public assistance and other non-taxable income sources in evaluating income for extension of credit;
  • working to develop algorithms and other models that permissibly weigh factors such as age in credit scoring;
  • designing and maintaining compliant special-purpose credit programs; and
  • evaluating collections policies and procedures to ensure that benefits are made available on a non-discriminatory basis, including to borrowers with language accessibility issues, borrowers in US territories, and borrowers on parental leave, disability or receiving protected forms of income.