Even in fraud cases, Wells Fargo customers are locked into arbitration

In the wake of the unauthorized accounts scandal at Wells Fargo, federal regulators are investigating sales practices and incentive pay policies at other big banks.
(Ben Margot / Associated Press)

Open a checking account at Wells Fargo Bank and you’ll have to sign an agreement that says you can’t sue the company — that any disputes have to go to a private arbitrator, not to court.

But what if a Wells Fargo employee then creates a separate, bogus account in your name?

It turns out that arbitration still rules the day.

As the San Francisco banking giant faces allegations that its employees regularly create fake accounts to boost sales figures, courts have repeatedly turned away consumers trying to sue over the issue.

Judges in California and federal courts have ruled arbitration clauses signed by customers when they opened legitimate accounts prevent them from suing even over allegedly fraudulent accounts created without their knowledge.


Those rulings have flabbergasted attorneys bringing lawsuits against Wells Fargo, the subject of a 2013 Times investigation that found a high-pressure environment prompted employees to open unwanted accounts.

“It’s laughable to any logical person,” said Michael P. Kade, a Los Angeles attorney who unsuccessfully argued such a case in L.A. County Superior Court.

Kade’s client and other customers have alleged bank employees used personal information gleaned from their original accounts to open additional savings, Christmas club and even business checking accounts, costing them unnecessary fees in the process.

The bank also is facing a lawsuit from L.A. City Atty. Mike Feuer over practices detailed in the Times investigation, but the arbitration clauses are not an issue in that action, which alleges improper use of customer data. The bank’s practices are also reportedly being investigated by federal regulators.

Wells Fargo has blamed a handful of rogue employees it has since fired or disciplined for the problems, and declined to comment on the use of arbitration in cases involving the allegedly bogus accounts. However, the bank defended its general practice. “Terms and conditions are provided to customers when they open a new product or service so that customers can understand what they have opened and their relationship with the bank,” the statement read.

Arbitration clauses, usually buried in fine print, have become increasingly common, found in everything from employment to mobile phone contracts. Along with requiring that disputes go to arbitration, the clauses often prohibit customers from joining class-action lawsuits.


Business groups say that arbitration can benefit consumers because it provides them a quicker resolution for their cases and that class-action suits line lawyers’ pockets without giving consumers much payout.

But the clauses have drawn recent scrutiny from federal regulators and advocacy groups, who complain they shut the courthouse door to consumers and direct them to a dispute-resolution process with no public oversight.

The federal Consumer Financial Protection Bureau in October proposed rules that would ban the parts of arbitration agreements that prevent consumers from joining class-action lawsuits. They also would require companies to file reports on claims that go to arbitration, adding some transparency to the system.

Arbitration clauses also can be too broad, preventing consumers from suing over any dispute.

That’s the problem facing Wells Fargo customers.

In cases filed in state and federal courts in California over the last two years, plaintiffs’ attorneys have argued that arbitration clauses signed by customers when they opened genuine accounts should not prevent them from suing over fake accounts.

Consumers “could not reasonably have believed that Wells Fargo would engage in unrelated, unlawful activity, and then shamelessly attempt to extend the arbitration provision to such activity,” wrote the attorneys for two bank customers suing Wells Fargo in federal court in San Francisco.


But U.S. District Judge Vince Chhabria found otherwise. In a September ruling, he said that case must go before an arbitrator, noting that Wells Fargo’s arbitration clause is broad enough to cover “any unresolved disagreement between or among you and the bank.”

Attorneys in that case declined to comment, but court records show they plan to appeal. In 2013, Kade’s client David Douglas, a Los Angeles customer, sued Wells Fargo and three of its local employees, saying the workers used his personal information and signature to open eight accounts.

Kade argued that because Douglas never signed agreements or arbitration clauses related to those accounts, he should be allowed to sue.

“Mr. Douglas did not form any contract with the bank regarding these fake accounts because he did not open these accounts himself,” Kade wrote in a court filing last year.

But attorneys representing Wells Fargo argued that, even if the accounts were created fraudulently, they would have been opened using information Douglas provided for his original, legitimate accounts. And that, the attorneys said, put Douglas’ claims “squarely within the terms of the arbitration agreement.”

A judge agreed, and a state appeals court declined to take up the case.

Feuer declined to comment on the banks’ use of arbitration clauses to govern disputes over the bogus accounts. But he said such clauses generally make it difficult for consumers to go after companies for illegal practices.


“Arbitration clauses that compel disputes to be resolved this way favor companies over the consumer,” he said.

F. Paul Bland, executive director of Washington, D.C., legal advocacy group Public Justice, said arbitration clauses often end up covering corporate conduct that customers don’t see coming.

“I’ve seen courts interpret clauses to cover disputes that no consumer would have ever imagined,” he said. “This is incredibly unfair, but it’s not surprising.”

One particularly egregious example, he said, was a case in which a Missouri man was beaten and robbed by a former Rent-A-Center employee. He let the man into his home believing the man planned to service rental appliances.

The victim tried to take Rent-A-Center to court for negligence, but an appeals court ruled the case should go to an arbitrator because the victim had signed an arbitration agreement with the company when he rented his refrigerator and a television.

“That people are forced into arbitration in settings that seem unfair and well outside the expectations of a normal human being, that does not surprise me at all,” Bland said.


Twitter: @jrkoren