Now that Wells Fargo is in the hot seat for allegedly pushing its employees to meet sales goals and quotas by opening millions of bogus accounts in customers’ names, will the bank use the anti-consumer terms of its customer contracts to get out of the inevitable class action lawsuits? A coalition of U.S. senators have written the bank’s CEO asking him to please not strip customers’ of their day in court.
Customers have already filed at least one class action against Wells Fargo over these fraudulent accounts, but as we noted in our story about that case, the bank’s contracts include a clause that not only allows Wells to force lawsuits out of the court system and into private arbitration, but also bars harmed customers from joining their complaints together as a class.
Wells already used this tactic — employed by a growing number of businesses — to get out of a related lawsuit filed last year by a customer in California, and consumer advocates are concerned the bank might pull the forced arbitration lever again to minimize its total liability.
At a hearing before the Senate Banking Committee on Tuesday, Wells Fargo CEO John Stumpf was asked about his plans to use arbitration, but his response was non-committal, saying only that he would need to discuss the matter with his legal staff, and “I have instructed my team to do whatever it takes, within reason, to take care of these customers.”
Today, a group of six lawmakers, led by Sen. Patrick Leahy (VT; Ranking Member of the Senate Judiciary Committee) and Sherrod Brown (OH; Ranking Member of the Senate Banking Committee), sent a letter to Stumpf, contending that the bank’s forced arbitration clauses are actually partly to blame for this mess.
“A major reason that these outrageous practices continued for at least five years is that Wells Fargo’s customer account agreement includes a forced arbitration clause,” reads the letter [PDF]. “These clauses eliminate consumers’ ability to bring a claim in open court or to band together in a class action, before any dispute has arisen. Forced arbitration clauses deny access to the courts even when consumers are seeking to enforce their rights under fundamental state and federal laws. Instead, consumers must seek justice individually, on a case-by-case basis in closed-door arbitration proceedings that are often stacked in favor of the corporate defendant.”
Unlike court proceedings, the results of arbitration cases are not made part of the public record. This lack of transparency, argue the senators, “helps hide fraudulent schemes such as the sham accounts at Wells Fargo from the justice system, from the news media, and from the public eye.”
What would make the use of arbitration particularly galling in this case, explains the letter, is that it involves the use of real customer accounts to “deny customers access to the court system to challenge Wells Fargo’s creation of sham accounts.”
If, as Stumpf proclaimed in his testimony before the Banking Committee, he accepts “full responsibility for all unethical sales practices,” the senators say he should show he really means it by pledging to not use the arbitration clauses to avoid lawsuits.
The senators have asked Wells to respond with information about its customer agreements, complaints about the fake accounts, and the bank’s use of arbitration.
For example, they want to know when it first started hearing allegations of bogus accounts (Stumpf admitted this week that he learned of the practice back in 2013), how many allegations it received through Sept. 2016, and how many of these were compelled into arbitration? And is the bank’s policy to put a gag order on arbitration results?
“What percentage of these allegations were heard by the same arbitrator or arbitration provider?” continues the line of questions. “Did Wells Fargo disclose to its investors allegations concerning the unauthorized creation of accounts?”
The senators also want to know who at Wells was responsible for setting legal strategy with regard to these bogus accounts.
“Specifically, who decided that your legal strategy would be to deny people access to the courts and force people to submit to mandatory arbitration on fraudulent accounts?” asks the letter.
In addition to Senators Leahy and Brown, the letter was signed by Sen. Elizabeth Warren (MA), Sen. Richard Durbin (IL), Sen. Al Franken (MN), and Sen. Richard Blumenthal (CT).