This article has been updated to reflect evolving developments in the case; see below.
Late last year, Congress scrapped Obama-era rules from the Consumer Financial Protection Bureau that would have banned forced-arbitration clauses in financial contracts. This bill, which President Trump quickly signed, was self-evidently bad for consumers at the time—and if anyone needs further proof of how ridiculous and harmful these clauses are, just look at what Wells Fargo has been up to over the past several months. The mega-bank famously issued at least 3.5 million fake accounts without consumer consent, triggering a $185 million fine to state and federal regulators. The bank aimed to demonstrate sales growth to investors and boost the stock price with bogus numbers, but millions of customers got caught up in the exchange, paying unnecessary fees and taking hits to their credit scores. Scores of defrauded customers sued Wells Fargo in a series of class-action lawsuits.
Wells Fargo then tried to defy metaphysical reality: It moved to block one class-action case in Utah by claiming that the arbitration clause in customer contracts on the real accounts they held at the bank also applied to the fake accounts. By this theory, Wells Fargo customers signed away their legal rights when it came to accounts they didn’t even sign.
The Utah plaintiffs fought Wells’s motion to compel arbitration, and rejected a $142 million settlement offer from the bank. While the two sides tangled in court, Wells Fargo CEO Tim Sloan appeared before the Senate Banking Committee on October 3. And when Senator Jon Tester (D-MT) asked Sloan point-blank if Wells Fargo was using arbitration clauses from real accounts and applying them to fake accounts, Sloan said, “There were instances [of that] historically. We’re not doing that today.” He also committed to not forcing arbitration in fake-accounts cases moving forward. When Senator Chris Van Hollen (D-MD) brought up the Utah case, where Wells Fargo had made motions to compel arbitration just two weeks earlier, Sloan said he wasn’t familiar with it.
But lawyers in Utah get C-SPAN. The plaintiffs in the case immediately appealed to the judge and argued that, with his remarks before Congress, Sloan had effectively waived Wells Fargo’s right to compel arbitration. Judge Clark Waddoups promptly scheduled a two-day trial for January 22 on the question. He also allowed the plaintiffs to depose Sloan in conjunction with the trial; that deposition is scheduled for Friday.
This put Sloan in a tight spot. Steven Christensen, attorney for the plaintiffs, told me he had only one question for Sloan: Did he state to Congress that Wells Fargo would waive arbitration claims on fake accounts? If Sloan said yes, the Utah case would go forward; if he said no, Christensen would appeal to Congress to hold him in contempt for lying to the Senate Banking Committee.
Wells Fargo found a way out. It filed a one-sentence motion the day after Christmas, which read: “Please take notice that Defendants Wells Fargo Bank, N.A. and Wells Fargo & Company hereby withdraw their Renewed Motion to Compel Arbitration.” They gave no explanation for the withdrawal, and so far Judge Waddoups hasn’t ruled on the motion.
Jim Seitz, a spokesman for Wells Fargo, said that Wells Fargo still believes “the facts of the case support Wells Fargo’s motion to compel arbitration,” but considered it “in the best interest of all our stakeholders to withdraw the motion at this time. We are pursuing this action to reach a resolution without further delay.” He added that the proposed $142 million settlement would resolve all the claims in the Utah lawsuit.
The withdrawal—even while insisting that real arbitration clauses apply to fake accounts—is a fun twist to Wells Fargo’s consistent strategy of saying different things to please different audiences. “The timing of this new stance on forced arbitration—coming just days before Sloan was scheduled to be deposed—suggests the bank may have been concerned Sloan was about to confirm that he did indeed lie [to Congress],” said Peter Knudsen, a spokesman for the American Association for Justice, a trial-lawyers’ group.
But Christensen was not satisfied. “Our position is the motion to withdraw doesn’t resolve anything because they could potentially renew their motion later,” he said. His team plans to show up in San Francisco on Friday to question Sloan, as the judge allowed. If Sloan doesn’t make it, Christensen said he would move to find the Wells Fargo CEO in contempt of court.
Since Wells Fargo has admitted to issuing fake accounts, the only mystery left in the case going forward is how many customers were actually affected. Wells initially claimed 2 million fake accounts, and then raised that estimate to 3.5 million last August. “I’m not confident that we’ve seen a true number,” Christensen said. If we ever get that number, which the court could demand, damages could rise well beyond the $10.7 million in refunds Wells has already paid out, or even the proposed $142 million settlement.
But Wells is taking the same approach to this case as it has with virtually every attempt to hold the company accountable: delay. Lawyers for the bank proposed eight weeks of depositions of the 80 customers in the Utah case. Every day they push off a judgment is a day they can drain the plaintiffs’ resources and prevent having to pay any price. “When you’ve got a $22 billion annual profit, and a $185 million fine, it’s cheaper for them to screw people over,” said Christensen.
Wells Fargo’s arbitration game-playing didn’t stop Republicans from nullifying the CFPB’s arbitration rules last year. Nevertheless, negative publicity from that ugly political dispute has played a role in companies’ changing their tune on arbitration. In one high-profile announcement, Microsoft ended the use of arbitration clauses against employees in cases of sexual harassment in the workplace.
Van Hollen, who caught Sloan’s dissembling in the Senate, thinks Wells Fargo should follow suit. “I urge Wells Fargo to allow all aggrieved consumers to have their day in court,” he said in a statement, “because it is the right thing to do and in the best interest of the families impacted by their wrongdoing—not just to protect their high ranking executives.”
UPDATE, 1/4/17: Late Wednesday afternoon, Judge Waddoups agreed to Wells Fargo’s motion to withdraw and cancelled both the trial and the deposition of Tim Sloan. While this insulates the Wells Fargo CEO, it means the case will not get dissolved, arbitration will not get triggered, and defrauded consumers will get their day in court, all because Sloan made a too-confident statement before the Senate.