Wells Fargo may have just made another boneheaded decision
By Kevin Dugan
August 23, 2017 | 10:28pm
Wells Fargo CEO Tim Sloane is continuing the bank's history of dumb decisions -- this time fighting a class-action suit that other banks have settled.
Wells Fargo Chief Executive Tim Sloan has reassured customers he’s doing everything he can to make up for past wrongs — except, apparently, if they got hit with excessive overdraft fees.
Lawyers for the embattled bank will appear before an Atlanta federal appeals court on Thursday to argue that more than a million customers possibly dinged by excessive overdraft charges shouldn’t be allowed to join a 9-year-old class-action lawsuit.
If Wells Fargo succeeds, the bank could be spared from having to pay more than $1 billion in restitution, people close to the case said.
The Atlanta appeal, dating from a 2008 lawsuit filed by five depositors, involves reordering — a once widely practiced custom whereby banks, faced with multiple withdrawals on the same day, would first clear the ones with the highest amounts.
That would raise the likelihood of increased overdraft fees.
Many large banks faced similar depositor lawsuits. Each one settled its suit.
Wells Fargo alone has kept up the fight — exposing the bank, if it loses, to more nasty headlines.
“The fact that they’re still fighting desperately against consumers they screwed is a sure sign they still don’t get it,” Ira Rheingold, executive director of the National Association ofb Consumer Advocates, told The Post. “They’re fighting tooth and nail against people who were cheated by them from getting proper redress.”
The San Francisco bank is no stranger to self-inflicted controversies.
Last year, the bank admitted that it had opened 2 million potentially fake accounts and credit cards in order to boost the company’s bottom line — a scandal that led to the resignation of its last CEO in October.
Since then, the bank:
Withheld disclosing a report on forcing auto loan customers to buy unneeded and costly insurance
Paid $108 million to settle with a whistleblower alleging Wells charged veterans hidden fees to refinance mortgages
Disclosed a federal regulatory probe into allegations it improperly closed and froze accounts, leaving customers without access to their money
?Admitted that the number of potential fake accounts will likely be larger than originally thought.
Then, on Wednesday, Sloan, in a companywide letter, told employees to brace themselves for more bad headlines “within a few weeks.”
“Wells Fargo was always the bank that litigated the hardest and settled the least,” Rheingold said. “They always had trouble settling these matters because they would never be able to admit they did something wrong.” That tack has cost Wells Fargo plenty recently — hurting both its finances and its reputation.
Reordering, the subject of the Atlanta case, is no longer used by banks. Here’s how it worked:
If a customer had $50 in a checking account and bought a $10 breakfast and a $15 lunch, and then spent $55 on dinner, those charges would be reordered so that the most expensive one was processed first.
That would result in three overdraft charges, typically $35 each.
If the bank cleared the transaction in chronological order, there would have been enough in the account to pay for breakfast and lunch — and just the dinner expense would have resulted in an overdraft fee.
Wells Fargo previously fought a similar case involving only California depositors who were ripped off by overdraft fees, but was ultimately ordered by the Supreme Court last year to pay a $203 million settlement.
Bank of America settled similar charges in 2011 for $410 million. JPMorgan Chase paid $110 million in 2012, TD Bank settled for $62 million in 2014 and Capital One paid $38 million in 2015.
The Thursday hearing in Atlanta is crucial for the bank. Wells Fargo claims customers agreed to settle all disputes via arbitration when they opened their accounts.
That should prevent them from being able to join a class-action lawsuit being litigated in Miami, the bank argues.
If the bank wins, it would force the more than 1 million potential class-action members to file arbitration cases individually — a costly and time-consuming endeavor for customers.
Fewer victims are likely to pursue an arbitration case, sources said, thus saving the bank some cash.
Wells Fargo’s legal position in the reordering case stands in stark contrast to the I’m-sorry-I’m-trying-to-fix-it public relations blitz that Sloan has recently undertaken.
“A principle guiding our work to identify potential harm was to err on the side of our customers,” Sloan said in the Wednesday letter to employees.
That doesn’t seem to include the reordering case.
“Wells Fargo continues to believe that arbitration is a fair, efficient and effective way for a customer to pursue a legal claim and resolve a legal dispute,” Kris Dahl, a Wells Fargo spokesman, told The Post.
Wells Fargo’s latest legal issue involves credit card fees
For many years, high-to-low posting order was standard in the banking industry, the spokesman said.
“In 2010, Wells Fargo eliminated high-to-low posting order for debit card transactions and moved to chronological posting-order for these items (the bank also moved to chronological posting-order for checks and ACH transactions in 2014),” he added.
It’s not unusual for big corporations to try to force customers into arbitration, since it tends to keep legal costs down.
In fact, it’s so popular that Wells Fargo already tried it before in this case — and lost.
In 2011, three years after the reordering case was filed, Wells Fargo asked the trial judge to order the depositor/victims to pursue their grievances via arbitration.
Judge James Lawrence King denied the request, saying the bank waited too long to make its move.
“Wells Fargo, because of its own strategic litigation decisions and conduct, waived any right it may have had to compel arbitration as to the plaintiffs,” the judge wrote.
“Having made its choice, Wells Fargo cannot simply reverse course after failing to achieve through litigation the sweeping victory it had hoped to achieve,” he added.
Wells Fargo is now arguing that King’s order only applied to the five named plaintiffs — and not to the million or so other depositors.
Lawyers for the customers, who declined to comment, said in court papers that a ruling in the bank’s favor would be “unconscionable.”
“To indulge Wells Fargo’s belated arbitration motion at this stage would also significantly prejudice the courts and undermine the integrity of the judicial process,” the plaintiffs argue in a brief before the Atlanta court.
