On Monday, a Florida federal judge held that
Wells Fargo cannot force unnamed class members into arbitration in five MDLs in which the institution has been accused of charging overdraft
fees in a deceptive manner. According to the judge, ordering the classes
to arbitrate would be prejudicial since the bank chose to actively litigate
the major class actions. According to the judge, “it would be unfair,
and fundamentally at odds with the principles underlying the Federal Arbitration
Act, to permit Wells Fargo to effectively 'wait in the weeds'
and invoke arbitration, after years of litigation, now that the alternate
path the bank chose did not turn out as it had hoped.” The judge
explained that ordering the classes to arbitrate now could cause “substantial
prejudice” because the discovery the bank obtained in the litigation
process could be used against class members, in addition to wasting all
of the resources that have been used in litigating the case thus far.
The judge also concluded that the arbitration request was untimely and
that Wells Fargo has already had two opportunities to compel arbitration.
Because Wells Fargo decided not to pursue arbitration until after April
2011, when the U.S. Supreme Court ruled that the Federal Arbitration Act
preempts state-law rules voiding customer arbitration agreements that
bar classwide arbitration procedures in the case of AT&T Mobility
LLC v. Concepcion, the bank had lost the right to compel arbitration at
this point in the case.
The bank has attempted to compel arbitration several times in two cases
that originated in California and Florida, as well as in cases that originated
in Washington, Oregon, and New Mexico.
These cases are among several that arose throughout the United States in
the late 2000s alleging that the banks reordered transactions in order
of descending value in order to maximize overdraft fees, despite telling
Wells Fargo disagrees with all allegations and continues to fight the charges.
The plaintiffs are represented by Podhurst Orseck PA, Lieff Cabraser Heimann
& Bernstein LLP, Grossman Roth PA, Bruce S. Rogow PA, Webb Klase &
Lemond LLC, Baron & Budd PC, Trief & Olk, and
Golomb & Honik, P.C., among others.
The suits are Garcia et al. v. Wachovia Bank NA, case number 1:08-cv-22463,
in the Southern District of Florida; Spears-Haymond v. Wachovia Bank NA,
case numbers 1:09-cv-21680, in the Southern District of Florida, and 3:08-cv-4610,
in the Northern District of California; Martinez v. Wells Fargo Bank NA,
case numbers 1:09-cv-23834, in the U.S. District Court for the Southern
District of Florida, and 6:09-cv-01072, in the U.S. District Court for
the District of New Mexico; Gutierrez v. Wells Fargo Bank NA, case numbers
1:09-cv-23685, in the U.S. District Court for the Southern District of
Florida, and 3:09-cv-01239, in the U.S. District Court for the District
of Oregon; and Zankich et al. v. Wells Fargo Bank NA, case numbers 1:09-cv-23186,
in the U.S. District Court for the Southern District of Florida, and 2:08-cv-01476,
in the U.S. District Court for the Western District of Washington. The
MDL is In re: Checking Account Overdraft Litigation, case number 1:09-md-02036,
in the U.S. District Court for the Southern District of Florida.