Houston Chronicle Sunday

What Wells Fargo dodged by agreeing to pay $110 million to settle fake accounts lawsuit

- By Renae Merle

When Wells Fargo recently agreed to pay $110 million to settle a class-action lawsuit related to the creation of millions of sham accounts, the bank’s CEO, Tim Sloan, called it another step toward making “things right with customers.”

The settlement also achieved something just as important for the San Francisco bank: It kept out of court for now a high-stakes battle over whether companies should be able to require customers to resolve their disputes through private arbitratio­n rather than by filing a lawsuit.

Tucked into the fine print of millions of agreements covering bank accounts, credit cards, pay day and auto loans is language that prevents consumers from filing classactio­n lawsuits or taking other steps to seek relief from a company they believe has wronged them. Instead, they must submit to private arbitratio­n in which the complaint is resolved by a third party. Such arbitratio­n clauses have become a standard business practice for many companies, but they have drawn criticism for favoring companies over consumers.

For Wells Fargo, it has been a winning strategy. After admitting last year that its employees had opened up to 2 million sham accounts customers didn’t request, Wells Fargo successful­ly blocked several lawsuits citing the clause.

But pressure on the bank, one of the largest in the country, has been building. Democratic lawmakers in the House and Senate have introduced legislatio­n to allow Wells Fargo customers to sue despite the arbitratio­n clauses, and the Consumer Financial Protection Bureau is preparing to unveil rules soon that would also restrict such provisions.

And there are other challenges ahead. In April, the bank’s independen­t directors are scheduled to issue a report on the scandal that has humbled the more than 100year financial powerhouse, and the House Financial Services Committee is still sifting through more than 100,000 company documents in its own investigat­ion.

“It is certainly not a coincidenc­e after months of concerted pressure” that Wells Fargo would opt to settle rather than litigate the issue, said Amanda Werner, arbitratio­n campaign manager for advocacy groups such as Public Citizen and Americans for Financial Reform. “We’re happy to see that, but it doesn’t solve the problem in general. Essentiall­y until we have strong federal rules and laws, we’re just waiting for the next scandal to happen.”

In the case Wells Fargo settled this past week, Shahriar Jabbari said he opened a savings and checking account with the bank in 2011. Two years later, he alleged in court filings, he learned that he had seven additional accounts at the bank he was not aware existed and began receiving collection notices related to them. Jabbari incurred $325 in service fees and $120 in overdraft fees due to the sham accounts, according to the complaint.

“When I opened my original accounts with Wells Fargo, I did not imagine I was agreeing to arbitrate a dispute about accounts that the bank would open without my consent,” Jabbari said in legal declaratio­n filed last year.

But in lengthy legal pleadings, Wells Fargo repeatedly attempted to move the case to the private arbitratio­n process.

Wells Fargo agreed to settle the case, but is not giving up its arbitratio­n clauses all together. The process is a fair and less costly way to resolve disputes, the bank has argued. But “in order to move forward and avoid continued litigation, Wells Fargo agreed to this settlement notwithsta­nding the arbitratio­n clause,” the company said in a statement.

Resolving the suit, legal experts say, could help keep Wells Fargo, already struggling to repair its image from the sham accounts scandal, from becoming the center of what many expect to be a contentiou­s debate over the fairness of the arbitratio­n process. Republican­s, for example, are widely expected to attempt to block arbitratio­n rules released by the CFPB this spring. Under the agency’s proposed rule, banks and other financial companies would not be able to use arbitratio­n clauses that ban customers from taking part in class-action lawsuits.

Rep. Brad Sherman, D-Calif., who filed legislatio­n requiring the bank to allow customers to sue, said the arbitratio­n provisions that Wells Fargo “snuck into their documents had already helped them at earlier stages” in the legal process and probably substantia­lly weakened the bargaining power of the consumers. He said he “can’t think of anywhere” the provisions belong in the financial services industry.

It is unclear how many people will be covered by the $110 million settlement. Wells Fargo says the deal, which still must be approved by a San Francisco judge, will also resolve 11 other pending cases. But that’s not a sure thing.

“This is not a fair settlement. … No discovery has taken place, so it is impossible to estimate the amount of damages,” said Zane Christense­n, who represents other Wells Fargo customers in a separate case.

The $110 million set aside for the settlement amounts to $55 for each of the 2 million unauthoriz­ed accounts Wells Fargo said may have been created. But the time frame of those affected by the bank’s misconduct is already longer than originally acknowledg­ed, so more unauthoriz­ed accounts may be found.

And the amount Wells Fargo customers would receive will be even lower once lawyer fees are deducted, Christense­n said. Some customers’ credit scores were damaged by the unauthoriz­ed accounts, for example, and expert analysis is needed to determine the proper compensati­on for that type of injury, he added.

 ?? Richard Drew / Associated Press ?? Wells Fargo CEO Tim Sloan hailed the settlement reached last week.
Richard Drew / Associated Press Wells Fargo CEO Tim Sloan hailed the settlement reached last week.

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