PD Editorial: Wells Fargo, Equifax and class-action suits

News item: Wells Fargo uncovers as many as 1.4 million more fake accounts.

News item: Equifax reveals a massive data breach involving Social Security numbers, birth dates and other personal information for more than 140 million people.

Within hours after Equifax disclosure, a class-action lawsuit was filed in federal court, accusing the credit reporting company of failing to maintain adequate safeguards for the consumer financial records it stockpiles.

In the case of Wells Fargo, where employees under pressure to meet aggressive sales quotas used customer data to create as many as 3.5 million unauthorized checking, savings and credit card accounts, victims had to overcome mandatory arbitration clauses before heading to court.

Wells Fargo eventually agreed to pay $185 million to settle a class-action lawsuit filed on behalf of defrauded customers.

But efforts to bar the courthouse doors continue in Washington and in the courts themselves.

Wells Fargo argued recently in a federal appeals court to end a separate class-action suit, this one involving the bank’s alleged manipulation of overdraft fees, and move the matter into mandatory arbitration, a private litigation system that generally puts consumers at a disadvantage.

Meanwhile, the House of Representatives recently voted to overturn a regulation promulgated by the federal Consumer Fraud Protection Bureau that bars companies from denying groups of consumers the option of going to court when they believe they have been treated unfairly. The rule and its protection will be lost if the Senate concurs in the House vote.

All of that amplifies the importance of state Senate Bill 33, which legislators approved last week and sent on to Gov. Jerry Brown.

The bill, introduced by state Sen. Bill Dodd of Napa, sets aside mandatory arbitration agreements in disputes involving state- or federally chartered depository institutions accused of creating the contract in question without authorization.

SB 33 is narrower in scope than the Consumer Fraud Protection Bureau regulation, but Brown should sign it to ensure that California residents have a legitimate opportunity to recover their losses in a fraud case involving a financial institution.

Some analysts believe the Wells Fargo scandal would have been uncovered sooner if early complaints hadn’t been quietly shuttled off into private arbitration hearings.

That isn’t the only reason to allow class-action lawsuits. The cost of individual litigation can easily exceed relatively small losses, but class-actions spread those costs across a large group of plaintiffs. And, as Dodd noted in an interview, there is an implicit bias against consumers in arbitration cases because the arbitrator’s fee is paid by the bank.

Another problem with class-action suits is that they come after damage, be it an unethical business practice or inadequate defenses against hackers, has been done.

As Richard Cordray, the director of the Consumer Fraud Protection Bureau, wrote recently in the New York Times, banks themselves have joined together to file class-action suits, including one against Home Depot after its computers were hacked in 2014, exposing credit accounts and other information. Why shouldn’t consumers have the same right?