Cleveland officials accused some of the nation's biggest banks of creating a public nuisance through blight. Baltimore and Birmingham, Ala., filed suits alleging the same players created an epidemic of foreclosures by violating the Fair Housing Act. Buffalo, meanwhile, just wants $16,000 for demolishing each of 57 blighted homes from which it claims banks walked away.
So far, the first two approaches have failed: The Cleveland and Birmingham cases were dismissed last year, and a U.S. District Court judge in Baltimore dismissed the city's case Wednesday. This is hardly the end of the litigation: Cleveland intends to appeal; Baltimore's city attorney is already planning an amended complaint; and the city of Memphis filed a similar suit against Wells Fargo & Co. last week. But banking defense attorneys are hoping the Baltimore ruling will at least discourage further municipalities from trying their luck.
Such a result would be a significant victory for banks, which have been attracting expansive and costly suits brought by municipalities, state regulators and activist groups like the NAACP. But it does not close the door on more focused litigation like Buffalo's lawsuit.
"You have lawyers running around the country trying to persuade city councils to file these cases," says Buckley Sandler's Andrew Sandler, who defended Wells in Baltimore. "Maybe they'll persuade a few more, but city officials will be getting smarter about the advisability of filing these cases."
Starting in early 2008, with Cleveland's public nuisance suit, municipalities have been looking for culpable parties on whom to blame housing-crisis-related economic woes ranging from lost property taxes to abandoned homes' demolition costs. The suits have gotten significant public attention; Baltimore's litigation appeared prominently in the recent documentary "American Casino."
But holding banks responsible for urban blight in a city well known as the gritty backdrop for HBO's series "The Wire" did not work. Accusing Wells of playing a central role in causing Baltimore's troubles is "implausible," Judge Frederick Motz wrote in his opinion in the Baltimore case, adding that the more likely culprits are "extensive unemployment, lack of educational opportunity and choice, irresponsible parenting, disrespect for the law, widespread drug use and violence." The judge's ruling did, however, explicitly leave the door open for the city to argue Wells is responsible for more specific foreclosure-related costs.
George Nilson, Baltimore's city solicitor, said the city will be doing just that.
"We're going to sharpen our pencil and break out the damages in our claim," he said. "Specificity will be our friend."
Though conceding that skepticism about pinning culpability on the banks has been an issue not only in his city's case but also in those of Birmingham and Cleveland, Nilson said he is confident that the city can calculate specific costs and "help the judge understand [that] we're talking about places where you can spot the Wells vacancies."
In some respects, he said, the amended complaint will resemble the Buffalo litigation. That suit was inspired by Cleveland's effort, Buffalo's then-Corporate Counsel Alisa Lukasiewicz said last year. But her suit was based on the Buffalo city code rather than federal housing law and sought compensation only for specific costs related to specific properties that the city was forced to raze. The case is still alive, and was recently refiled with fewer banks as defendants. A city attorney declined to address why fewer defendants were listed.
Sandler, a Wells attorney in the Baltimore matter, said he believed suits like Buffalo's also are meritless. But the ruling's rejection of overarching culpability for lenders in his case would probably do nothing to discourage them, he said. "Buffalo is a bunch of individual actions against individual lenders," he said. "I would not put the Baltimore situation in the same category."
Where the Baltimore case might have more impact, he said, would be on the Memphis case filed against Wells Fargo on Dec. 30. This case, which alleges that Wells-related blight constitutes a public nuisance, "has all the same flaws as the Baltimore case does."
As long as approaches like the one Buffalo has taken are alive, it is unlikely that new suits will completely stop. Howard Cayne, a partner in Arnold & Porter's Washington office who represents banks, suggested that municipalities, even if they cannot win in court, could still "hope that the imposition of legal costs will force banks to settle." Anything other than a united front would be a disaster, he added, as any significant settlement would invite further litigation.
Given that most of the cities' claims have been brought by outside firms working on contingency, cost is unlikely to be a major factor in cities' legal decisions.
Nilson, Baltimore's solicitor, said the District of Columbia civil rights firm Relman & Dane has picked up the bulk of the costs so far, allowing the city to accrue only modest costs. That the firm is willing to work on contingency even in a case of smaller scope speaks to its belief that it can win, Nilson said.
The judge's opinion "would have made a graceful exit possible," Nilson said, but Relman & Dane is still committed.