Banking Lobbyists, After Wells Fargo Scandal, Couldn't Stop This Arbitration Bill
California's governor and Legislature in recent years have not been welcoming of many bills aimed at restricting the use of arbitration. That could soon change. Gov. Jerry Brown is considering whether to sign legislation that would allow judges to deny a bank's arbitration demand in any case that involves fraudulently created accounts.
September 14, 2017 at 05:14 PM
4 minute read
California's governor and Legislature in recent years have not been welcoming of many bills aimed at restricting the use of arbitration. That could soon change.
Gov. Jerry Brown is considering whether to sign legislation that would allow judges to deny a bank's arbitration demand in any case that involves fraudulently created accounts.
Lawmakers this week sent the governor the bill, SB 33, which was crafted in response to Wells Fargo's admission that its employees opened as many as 3.5 million sham banking and credit card accounts over the last 12 years in the names of existing customers. The legislation targets the bank's attempts to push related lawsuits into closed-door arbitration, citing clauses in legitimate contracts customers signed when they opened accounts.
Brown has not said publicly what he will do with SB 33. But the fact the bill even made it to his desk is remarkable. The state Assembly, which includes a powerful bloc of moderate Democrats, has been a minefield for arbitration-limiting legislation. Just last year, bills to shield civil rights claims and certain military veterans' lawsuits from mandated arbitration stalled in the lower house for lack of support.
The Wells Fargo fraudulent-account scandal “was more than the legislature could allow to go unchecked,” said Richard Holober, executive director of the Consumer Federation of California.
Wells Fargo has lobbied lawmakers on SB 33, according to records filed with the secretary of state's office. But the bank has left public criticism in the hands of trade groups, including the California Bankers Association, the state Chamber of Commerce and the Civil Justice Association of California.
Opponents of the legislation said the statute would be pre-empted by the Federal Arbitration Act and that litigants already have potential defenses to compelled arbitration in such cases.
“We believe that this measure will prompt a wide range of claims used to defeat otherwise valid arbitration agreements,” Simone Lagomarsino, president and chief executive of the California Bankers Association, wrote in the Sacramento Bee in May. “We continue to believe that arbitration is a better alternative to class action litigation that enriches trial attorneys and ultimately fails to benefit the consumer.”
Wells Fargo's advocates also said the bank has already been punished.
The bank last year agreed to pay $185 million in fines to federal agencies and the city of Los Angeles, which was one of the first public entities to investigate the fake accounts. This year, Wells Fargo reached a $142 million settlement with customers. Several states, including California and Illinois, also suspended investment work with the bank.
Supporters of the bill, including organized labor and consumer groups, said the legislation is narrowly tailored. Original language applying provisions to all financial institutions was pared back to specifically cover “state or federally chartered depository institution[s].” The language, too, would only apply to motions to compel filed by banks after Jan. 1, 2018.
Former Consumer Attorneys of California President Brian Kabateck testified before the Assembly Judiciary Committee this summer about “the real problem” the bill addressed: reducing any fear among judges who might have felt pressured to send a dispute to arbitration to avoid running afoul of any rules.
“What we're trying to do is make it very clear that there is a specific situation where courts can deny forced arbitration,” he said.
Brown's positions on arbitration bills are unpredictable.
Last year, he signed bills barring employers from forcing California workers to arbitrate claims out of state and giving arbitration parties access to shorthand reporters. But a year earlier, he vetoed legislation that would have outlawed workplace arbitration agreements as a condition of employment.
“While most evidence shows that arbitration is quicker and more cost-effective than litigation, there is significant debate about whether arbitration is less fair to employees,” Brown said in vetoing a bill he called too far-reaching. “If abuses remain,” he wrote, “they should be specified and solved by targeted legislation, not a blanket prohibition.”
Brown has until mid-October to decide the fate of SB 33.
Related Articles:
|- Wells Fargo Appeals $577K Whistleblower Award in Fake-Account Scandal
- Report Faults Wells Fargo's Law Department in Sham-Accounts Scandal
- Wells Fargo Strikes $110M Settlement Deal in Fake Accounts Cases
- Calif. Firms Join Forces in Employee RICO Suit Against Wells Fargo
- Proposed California Law Confronts Wells Fargo's Fake-Account Scandal
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