United States Ninth Circuit

In plaintiffs' suit against Wells Fargo Bank for engaging in unfair business practices by imposing overdraft fees based on the high-to-low posting order and for engaging in fraudulent business practices by misleading clients as to the actual posting order used by the bank, as an initial matter, the district court's judgment: 1) should not be vacated on the basis of the Supreme Court's intervening decision in AT&T Mobility LLC v. Concepcion; and 2) is denied as to the bank's post-judgment, post-appeal request that the dispute be arbitrated under a permissive arbitration clause contained in a contract between the parties. With regard to the district court's issuance of a permanent injunction and $203 million restitution order to a certified class of bank customers, the judgment is: 1) vacated as to the permanent injunction and the restitution order; and 2) affirmed as to the district court's finding of liability for defendant's violations of the "fraudulent" prong of California's Unfair Competition Law where the National Bank Act does not preempt plaintiff's claim for affirmative misrepresentations under the "fraudulent" prong of the UCL.

Appellate Information

• Decided 12/26/2012
• Published 12/26/2012

Judges

• McKeown

Court

• United States Ninth Circuit

Counsel