facts that placed Union Auto on notice of the claims against it and that suggested

an entitlement to relief. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)

3 (explaining pleading requirements under Rule 8(a)); Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (holding that Rule 8(a) requires that a plaintiff

plead “only enough facts to state a claim to relief that is plausible on its face”).

The ECOA provides that it is “unlawful for any creditor to discriminate

against any applicant, with respect to any aspect of a credit transaction . . . on the

basis of race, color, religion, national origin, sex or marital status, or age.” 15

U.S.C. § 1691(a). The FAC alleges that Union Auto violated the ECOA by

instituting a lending policy that allowed sales representatives to add discretionary

“overages”—subjective markups unrelated to any creditworthiness standards—to

financing contracts, which resulted in a pattern of discrimination against non-

Asians. Specifically, FAC ¶¶ 9&12 allege that the Board of Governors of the

Federal Reserve System found reason to believe that Nara Bank’s indirect

automobile lending program discriminated against non-Asian borrowers, and that

Union Auto originated 21% of the loans in Nara Bank’s indirect automobile

lending program. FAC ¶ 18 alleges that Union Auto gave its employees discretion

to set overages within broad parameters, and that “[t]his discretion was exercised

in a manner that discriminated against non-Asian borrowers.” The FAC also

recites the results of the United States’ independent analysis of loan files, which

shows that Union’s “non-Asian borrowers were charged mean overages

4 approximately 35 to 155 basis points higher than Asian borrowers,” that these

differences “cannot be explained fully by factors unrelated to race or national

origin such as differences in the customers’ creditworthiness,” and that “[t]hese

differences are statistically significant.” Viewed in the light most favorable to the

nonmoving party, Rowe, 559 F.3d at 1029 (quotation marks omitted), these

allegations plausibly state a claim for relief.

Contrary to the district court’s conclusion, the FAC’s classification of

“Asians” and “non-Asians” did not render the ECOA claim any less plausible. The

link between names and racial categorization for the purposes of both

antidiscrimination law and discriminatory conduct is well-established, see

Orhorhaghe v. I.N.S., 38 F.3d 488, 498 (9th Cir. 1994) (citations omitted), and

“Asian” is a category routinely deployed for the purposes of anti-discrimination

laws,2 see, e.g., Davis v. City and County of San Francisco, 890 F.2d 1438, 1446

(9th Cir. 1989) (upholding consent decree that “provid[ed] relief to Asians,

Hispanics or women who have been discriminated against at both the entry-level

2 Federal regulations themselves provide a capacious definition of the category of “Asian or Pacific Islander” in the context of Title VI of the Civil Rights Act: “A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Islands, and Samoa.” 28 C.F.R. § 42.402(e)(3).

5 and promotion level”); see also U.S. v. Cannady, 54 F.3d 544, 547 (9th Cir. 1995)

(“Asians” are a “distinctive group[] in the community” for purposes of the Jury

Selection and Service Act of 1968, 28 U.S.C. § 1861).

That the FAC pleads discrimination against non-Asians—instead of against

Asians—is irrelevant. The ECOA protects individuals, not groups, and

discrimination against a single applicant on a basis prohibited by the ECOA

violates the law. See 15 U.S.C. § 1691(a).

Nor was the district court justified in dismissing the FAC for failing to

articulate a theory of “why the sales-reps would give lower loan rates to ‘Asians.’”

U.S. v. Nara Bank, No. 09-07124-RGK, 2010 WL 2766992, at *2 (C.D. Cal. May

28, 2010). Under a disparate impact theory, intent is irrelevant. See Rose v. Wells

Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990). And under a disparate

treatment theory, a plaintiff need only allege that a defendant “simply treats some

people less favorably than others because of their race, color, religion, sex, or

national origin.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15

(1977).

Because the United States has stated a plausible claim under the ECOA, we

reverse the dismissal of the complaint against Union Auto and remand for further

proceedings consistent with this decision.

6 REVERSED in part, and REMANDED.

7

FILED

United States v. Union Auto Sales, Inc., No. 10-56177 JUL 13 2012

MOLLY C. DWYER, CLERK

Callahan, Circuit Judge U.S. COURT OF APPEALS

I respectfully dissent. In my view, the complaint at issue here would have

survived a motion to dismiss for failure to state a claim before 2007. However,

that year the Supreme Court decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007). Apparently, the government didn’t feel the ripple in the Force caused by

Twombly, or hear the cries of the thousands of complaints that died as a result of

the decision. After Twombly, it is not enough that a complaint alleges a claim in

which discrimination is possible; now a complaint must allege facts that establish a

claim for discrimination which is plausible. Id. at 557-58 (explaining “that

something beyond the mere possibility of loss causation must be alleged, lest a

plaintiff with ‘a largely groundless claim’ be allowed to ‘take up the time of a

number of other people, with the right to do so representing an in terrorem

increment of the settlement value.’” (quoting Dura Pharmaceuticals, Inc. v.

Broudo, 544 U.S. 336, 347 (2005))). This case perfectly demonstrates an

insufficient pleading because the government has “not nudged [its] claims across

the line from conceivable to plausible . . . .” Id. at 570.

In Starr v. Baca, 652 F.3d 1202, 1215-16 (9th Cir. 2011), we reviewed

-1- recent Supreme Court opinions related to the pleading standard and found that

whatever the difference between these cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id. at 1216. Here, the First Amended Complaint (“FAC”) simply recites the

elements of a cause of action.

The allegations in the FAC regarding Union Auto Sales’ (“Union”)

discriminatory conduct do not “plausibly suggest an entitlement to relief.” Id.

First, the government alleges that Union “originated more than 1400 automobile

loans between January 1, 2004 and December 31, 2006,” and that it classified “at

least 200 borrowers as Asian and at least 1200 borrowers as non-Asian, many of

whom were Hispanic.” FAC ¶ 19. Next, it alleges that Union charged non-Asian

borrowers “approximately 35 to 155 basis points higher than Asian borrowers.”

FAC ¶ 20. It then alleges that “[m]ore than 600 non-Asian customers . . . were

charged overages higher than the mean overage charged to Asian borrowers during

the covered time period.” Id. Since there were 1200 non-Asian borrowers, this

-2- allegation states that half the non-Asian borrowers were charged overages higher

than the average Asian borrower. This is not sufficient to nudge the government’s

claim across the line from conceivable to plausible. See Twombly, 550 U.S. at 570.

The government further alleges that Union “did not use formal, written, or

uniform underwriting guidelines to set interest rate markups. Instead, employees

. . . were granted the discretion to engage in subjective decision-making and set

overages within broad parameters. This discretion was exercised in a manner that

discriminated against non-Asian borrowers.” FAC ¶ 18. The government also

alleges that “[t]he difference in overages between the automobile loans made to

non-Asian customers . . . and those made to Asian customers cannot be explained

fully by factors unrelated to race or national origin such as differences in the

customers’ creditworthiness. These differences are statistically significant.” FAC

¶ 21. The government’s wholly conclusory allegations “amount to nothing more

than a ‘formulaic recitation of the elements’ of a constitutional discrimination

claim,” and the Supreme Court has made clear that conclusory allegations are not

sufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (quoting

Twombly, 550 U.S. at 555).

I would hold the government to the same pleading standard other plaintiffs

must satisfy. Like any other plaintiff, the government must allege a claim for relief

-3- that rises above possible; it must be plausible. Because the government’s

complaint here falls short, I dissent.

-4-