As we mentioned last week, Wells Fargo — the bank where employees opened millions of unauthorized accounts in customers’ names — has been trying to wriggle out of class action lawsuits involving the fake account fiasco by forcing each individual customer into private arbitration. This afternoon, the judge in one lawsuit put the case on hold until he decides whether or not Wells gets to play this “get out of jail free” card.
A federal court judge in Utah has granted Wells Fargo’s request to press pause on litigating the actual merits of a lawsuit filed by 80 named bank customers — and seeking to represent a much larger class of Wells customers.
Like many large banks, the Wells Fargo customer agreements include a mandatory binding arbitration clause that does two things: First, it prevents the customer from bringing a lawsuit against the bank through the court system. Instead, all disputes are to be settled away from public scrutiny, in a private arbitration hearing. Second, the clause bars similarly wronged customers from joining together in a class action, even in arbitration.
As a result, each individual Wells Fargo customer must enter into the arbitration process. Studies have shown that very few consumers ever elect to arbitrate a dispute. In fact, most bank customers are not even aware that they are bound by these restrictive rules.
Even when consumers are aware of their right to arbitrate, they often elect to not enter into the process, especially when the individual rewards are less than the cost of mounting a case. Whereas in a class action, the total damages for all class members can make it financially feasible to mount the case. Additionally, only a small number of class representatives need to be named in the case; the rest of the class often needs to merely claim their portion of the damages if their side prevails or settles.
Even though multiple lawmakers and consumer advocates have called on Wells Fargo to not force the members of these class actions out of the courtroom, the bank has asked the court to compel arbitration.
The plaintiffs in this lawsuit have until Dec. 23 to file their opposition to Wells Fargo’s motion to compel arbitration, and then the bank has until Jan. 27, 2017 to respond to the plaintiffs, so the issue of arbitration likely won’t be decided until February.
Today’s order [PDF] puts all consideration of the merits of this dispute on hold until then.
Wells has already successfully used arbitration to force at least one fake-account class action out of the courtroom. That lawsuit was filed in May 2015 and shunted off to arbitration in Sept. 2015 — a full year before the bank confirmed the widespread bogus account issue in a $185 million settlement with state and federal regulators.
The bank now faces the potential for additional suits after the recent allegations made by former Prudential employees that Wells staff may have fraudulently opened life insurance accounts in customers’ names.