Wells Fargo is facing multiple lawsuits from customers and employees over the long-running fake account fiasco that saw more than two million bogus, unauthorized accounts being opened in customers’ names. Even though lawmakers and consumer advocates have repeatedly asked the bank to not sidestep its liability by using an often-ignored clause in its customer agreement, lawyers for Wells Fargo have already begun to play that “get out of jail free” card.
Wells — just like most major banks, telecom and cable companies, online retailers, and electronics manufacturers — includes a forced arbitration clause in its consumer contracts.
These clauses do two things: First, they prevent the customer from bringing a lawsuit through the legal system. Instead, any dispute can be shunted off into private arbitration. Second, and more importantly, they prohibit similarly wronged customers from joining their complaints into a single class action — even through arbitration.
Thus, rather than having a handful of named plaintiffs representing an entire class of harmed individuals, each wronged customer must go through arbitration on their own.
That might be worth the effort if your individual claim is substantial, but in many class actions the rewards for a single class member are often small; however the total damages for the company can be huge. The purpose is to hold the wrongdoer accountable financially and to do so in a public forum, so that any additional information that might be brought to light does not remain hidden in a file cabinet somewhere.
As a result of this high-effort, low-reward system, only a small number of potential plaintiffs ever enter into arbitration — the overwhelming majority of bank customers don’t even know that they have signed away this right to sue.
When Wells Fargo acknowledged that its employees had been gaming the bank’s sales quota and incentives system by opening and closing millions of fake accounts in existing customers’ names, lawmakers directly asked then-CEO John Stumpf if Wells planned to play the arbitration card to compel the inevitable class actions out of court and into discrete arbitration disputes.
Stumpf declined to say yes or no, but the answer was pretty clear when he responded that he had “instructed my team to do whatever it takes, within reason, to take care of these customers,” and that he would discuss the issue with his legal team.
In response, a coalition of senators wrote to Stumpf, calling on him to rethink this tactic, arguing that the lack of transparency surrounding closed arbitration hearings “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.”
More recently, members of both the House and Senate introduced the Justice For Victims Of Fraud Act, which if passed would forbid Wells from compelling these disputes into arbitration.
However, the bank has already begun the process of diverting these lawsuits out of public view and dividing them up into individual arbitration disputes.
In November, the bank filed a motion to compel arbitration [PDF] for the 80 plaintiffs in a class action filed in a Utah federal court.
The bank successfully used a similar tactic to break up a May 2015 class action lawsuit filed more than a year before Wells Fargo ever publicly admitted to the fake account fraud.
In Sept. 2015, a full year in advance of Wells’ $185 million settlement with state and federal regulators, the court granted [PDF] the bank’s motion to compel that case into arbitration.
This week, the New York Times reported on more of the bank’s efforts to keep these lawsuits out of the courtroom, even though there is no dispute that Wells Fargo employees opened these unauthorized accounts.
“It is ridiculous,” one of the named plaintiffs in the Utah lawsuit tells the Times. “This is an issue of identity theft — my identity was used so employees could meet sales goals. This is something that needs to be litigated in a public forum.”
Wells claims that arbitration is a “last resort,” in spite of the fact that it’s asking for these cases to be dismissed only weeks after they have been filed.
“We want to make sure that no Wells Fargo customer loses a single penny because of these issues,” explains the bank in a statement to the Times.
While making customers whole again is a positive step, it doesn’t address the potential punitive aspect of a class action, wherein the bank would be made to feel the sting of its bad practices by having to publicly admit culpability.
“I think it’s a major problem when you have a bank that is so large, doing the things that Wells Fargo did on a systematic basis, to be able to keep that under wraps,” explains one lawyer representing a Wells customer whose case was forced into arbitration.
This afternoon, Senators Patrick Leahy (VT) and Sherrod Brown (OH) wrote to new Wells Fargo CEO Tim Sloan expressing their disappointment.
“Wells Fargo’s demand to deny defrauded customers their fundamental rights demonstrates your complete failure to understand the gravity of the company’s actions and an utter unwillingness, despite promises to the contrary, to actually put your customers first,” reads the letter [PDF], also signed by Sen. Al Franken (MN), Sen. Elizabeth Warren (MA), Dick Durbin (IL), and Richard Blumenthal (CT).
“Forced arbitration denies Americans their constitutional right to seek justice in a court of law and shields companies from accountability – both from the courts and the public eye,” continue the senators. “We will not simply trust you to get this right as long as your actions continue to belie your words. We will not forget that your company has harmed millions of Americans. We will continue to watch closely and hold you accountable at every misstep.We strongly urge you to reconsider your use of forced arbitration.”