After two years in court, the many legal fights over banks' overdraft practices have produced a national class action against Union Bank of California — and in a move that may put more pressure on banks, plaintiffs' attorneys have moved to unseal records in the case.
If successful, Wednesday's motion in Larsen v. Union Bank N.A. could prompt greater public scrutiny of banks' motives for handling transactions in sequences that produce more overdraft charges.
Bruce Rogow, Alters Law Firm's co-lead counsel for the plaintiffs, said he and his colleagues expect to take a the same approach in other lawsuits against banks.
"We're just taking one at a time," he said, adding that the plaintiffs intend to make similar requests to unseal court records for other banks. Lawrence King, the judge in the case, "mentioned at one of the hearings that he was uncomfortable with things being sealed — that that's not the way that he operates," Rogow said.
Larsen v. Union Bank is just one of dozens grouped together by King. Citing "voluminous" evidence submitted by class-action attorneys, the judge decided on Tuesday that the allegations were substantively the same for all plaintiffs because the circumstances stemmed from the San Francisco bank's corporate policy.
Significantly, the judge also lent his support to a methodology for determining damages that was key to a $203 million ruling against Wells Fargo & Co. in the Gutierrez case, a California-specific overdraft suit.
Bobby Gilbert of Grossman Roth, coordinating attorney for the plaintiffs, cautioned against reading too much into the Gutierrez references, although he said they point up fundamental similarities in the suits as well as the best methods for sorting the effects of overdraft policies.
"What Gutierrez says to this court is that, 'Yes, there is a road map for what the plaintiffs are seeking to do here,' " Gilbert said. "Our colleagues in San Francisco had the same type of model, and used the same expert that we were using."
An attorney for Union Bank did not return a call on Wednesday. It is thought likely the bank will ask the 11th circuit to review King's decision to certify the case as a national class, according to observers and the plaintiffs' attorneys.
Alan Kaplinsky, who heads Ballard Spahr's consumer finance practice and represents large banks, said it is standard for a defendant to request a review. The grounds would probably be that Union Bank's planned defense could not be carried out adequately in a class action because the claims are too different to be easily consolidated.
If this request is granted, it would greatly ease other banks' efforts to prevent class certification in future litigation.
The court's references to Gutierrez may prove troubling for bank defendants in all cases. Wells Fargo was hit with a blistering ruling by Northern California District Court Judge William Alsup. (That case has been appealed.) While Alsup's decision carries no weight as a legal precedent in Florida District Court, King's decision to view key elements of the case could bode ill for the defendants. The plaintiffs' attorneys have brought on counsel from the firm that won the Gutierrez decision and have hired the same expert witness who changed the sorting of clients' accounts to undo the effects of high-to-low check clearing and determine damages.
Not all recent news in the multidistrict litigation has been bad for banks. Attorneys for the plaintiffs such as those handling the overdraft cases suffered a setback earlier this year when the Supreme Court upheld the validity of mandatory arbitration contracts.
The ruling gave defendant banks a possible out: If they can demonstrate that they made a timely effort to steer customers into fair dispute resolution, they may be able to dismiss the class action entirely.
The Supreme Court ruling divided the defendants into three camps: those with no arbitration clauses, those who had such clauses but had previously not sought to enforce them and those who had sought arbitration all along. Union Bank is among those that had no agreement at all, robbing it of what observers on both sides regard as a key defense.
The Union Bank class certification comes two months after Bank of America Corp. settled in a $410 million case, a deal that plaintiffs' attorneys suggested would likely be a template for others wishing to close out the matter. (Based on the terms of the settlement, the attorneys in the case likely collected more than $100 million.)
Plaintiffs' attorneys framed the request to unseal records in the Union Bank case as a way to make the circumstances apparent to the customers they now represent.
Asked if the goal was to embarrass Union Bank by revealing its internal deliberations, Rogow said no — but conceded that the documents might shed light on what motivated banks and how they treated customers.
"The embarrassment should be not in terms of the details of the emails, but that the most vulnerable people were taken advantage of solely for the banks' economic satisfaction," he said.