Wells Fargo Overdraft Fee Class Actions Win Certification

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On June 8, the plaintiffs of five Wells Fargo overdraft fee class action lawsuits won Class certification for their cases. These five cases are part of the larger, nationwide Wells Fargo overdraft fee multidistrict litigation (MDL) against Wells Fargo Bank NA, all alleging that the bank employs deceptive business practices with its bank overdraft fee policy.

After two days of oral arguments for and against Class certification in Miami federal court, U.S. District Judge James Lawrence King granted Class certification to the Wells Fargo overdraft fee class action lawsuit.

Judge King’s certification was a two-fold order, the first applying to Class certification for two cases originally filed in Florida and California against Wachovia Bank (which was later acquired by Wells Fargo, and the second applying to three cases in New Mexico, Oregon, and Washington against Wells Fargo specifically. As part of the judge’s ruling, a number of subclasses for different state jurisdictions were also accepted.

According to Judge King’s order certifying the various classes and subclasses of these Wells Fargo overdraft fee class action lawsuits:

“[E]ach and every subclass possesses a materially identical legal claim and is headed up by Bank customers who share that claim and have ample incentive to prosecute it. There are no ‘headless’ subclasses, and customers in every state in which Wells Fargo did business (except lndiana, which is excluded), stand to recoup their allegedly excessive overdraft fees through at least one cause of action. The Court’s plan appropriately protects the interests of all class members to the extent feasible, given these named Plaintiffs and state laws, while also affording  Wells Fargo the ability to defend itself in every instance.”

These Wells Fargo class action lawsuits are among a group of similar cases that were popularly filed in the late 2000s against numerous banks, claiming banks deceptively deducted from consumers’ accounts as part of a scheme to maximize overdraft fees.

In the overdraft fee class action lawsuits filed against Wells Fargo, the plaintiffs claim the bank’s marketing materials state that ATM and debit card transactions “generally reduce the available balance in your account immediately …  [and] purchase amounts are automatically deducted from your primary checking account.” In their Wells Fargo class action lawsuits, the plaintiffs claim these Wells Fargo marketing statements misrepresents the resequencing sequence that allegedly occurs on consumer accounts in order to cause the account to overdraw.

Back in October 2012, Wells Fargo had attempted to compel the plaintiffs of the various overdraft fee class action lawsuits consolidated in the Wells Fargo MDL into arbitration. However, Judge King found that the Wells Fargo arbitration clause included in the bank’s account agreements are not mandatory, “Therefore, Wells Fargo’s arbitration-based argument is premature given the permissive nature of these agreements and the stage of this litigation,” according to the Wells Fargo class action lawsuits.

The plaintiffs are represented by Podhurst Orseck PA, Bruce S. Rogow PA, Grossman Roth PA, Lieff Cabraser Heimann & Bernstein LLP, Baron & Budd PC, Webb Klase & Lemond LLC, Golomb & Honik PC and Trief & Olk, among others.

The Wells Fargo Overdraft Fee Class Action Lawsuits are consolidated in the Wells Fargo Overdraft Fee MDL known as In re: Checking Account Overdraft Litigation, MDL No. 09-md-02036, in the U.S. District Court for the Southern District of Florida (Miami).