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Why Wells Fargo customers won’t be able to sue the bank over fake accounts

John Stumpf, chief executive of Wells Fargo, swears in to a House Financial Services Committee hearing in Washington on Sept. 29. (Andrew Harrer/Bloomberg News)

One major group directly affected by the Wells Fargo scandal — the customers who had fraudulent accounts opened in their names — may have their hands tied.

As lawmakers pointed out at congressional hearings Thursday and last week, many Wells Fargo customers are blocked from suing the company because of arbitration clauses, little-known contracts that often ban customers from taking part in class action lawsuits. They are regularly included in the fine print for checking accounts, credit cards and other consumer products.

In the case of Wells Fargo, the arbitration clauses that customers agreed to when they opened their real accounts are being used to keep them from suing about the fake accounts opened in their names.

In a terse exchange during Thursday’s hearing, Rep. Brad Sherman (D.-Calif.) pushed John Stumpf, the chief executive, on whether the bank would waive the clause for affected customers.

Stumpf defended the arbitration process, calling it “fair” and saying that consumers would be directed to mediators.

But Sherman asked the executive to be more direct about whether customers have the ability to challenge the company in court.

“If they want to go to court are you going to let them go to court? Yes or no?” Sherman asked.

“No, but …” Stumpf responded before being interrupted by Sherman, who said he understood that the answer was no.

After Wells Fargo, can you trust your bank?

The response led to more pressure from other lawmakers urging Stumpf to make an exception for consumers who may have been hurt by the scheme. “If Wells Fargo were serious about making its customers whole, then it would allow the people who were cheated to have their day in court,” Sen. Sherrod Brown (D-Ohio) said in a statement.

Federal regulators have been drawing attention to the clauses over the past several years out of concern that consumers sent to arbitration may not receive enough relief after they’ve been harmed. Under rules proposed by the Consumer Financial Protection Bureau in May, banks and other financial companies would not be able to use arbitration clauses that ban customers from taking part in class action lawsuits.

Supporters of arbitration say that the process reduces costs for companies and customers by limiting legal expenses. But consumer advocates argue that by banning class action lawsuits, arbitration clauses raise costs for consumers who would otherwise be able to share legal costs and information with other people in similar circumstances, consumer advocates say.

A lawsuit filed against Wells Fargo last year by the city attorney for Los Angeles, Michael Feuer, was not subject to the arbitration clause because it was not a class action lawsuit filed by the bank’s customers. That suit was settled earlier this month when Wells Fargo was fined $185 million by state and federal regulators. As part of the settlement, the bank created a mediation system for consumers in California who were harmed by the practices.

On Thursday, lawmakers asked for more details on what the bank was doing to compensate customers hurt by the unauthorized accounts. Stumpf said any customers who faced fees related to the fake accounts have received refunds with interest. But some representatives pointed out that some of the financial effects, such as the damage to a person’s credit score if a credit card was opened in their name, are more difficult to quantify.

The grilling by congressmen was not the first time that Stumpf was questioned about the bank’s arbitration clause. In last week’s Senate hearing, Sen. Elizabeth Warren (D-Mass.), who also demanded that Stumpf resign and give up some of his compensation, wondered whether the behavior would have stopped sooner had consumers been able to file a class action lawsuit. She added that some people may have wanted to sue when they noticed the fake accounts as early as 2009.

“In other words, these forced arbitration clauses make it easier for Wells to get away with scamming their customers,” Warren said.

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