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.