KBK’s Brian Kabateck talked to the LA Times about efforts to invalidate Wells Fargo’s arbitration agreements.
Kabateck Brown Kellner fights tirelessly to obtain justice for clients but our work doesn’t stop there. Many of the cases we successfully try in court or negotiate in mediation can become a catalyst for change in the community or at the state level. Our firm is proud to work closely with lawmakers as they draft and introduce legislation that helps promote consumer protections and enforce consumer rights.
KBK working on bill to protect consumers from bank fraud.
Banking giant Wells Fargo is in the crosshairs of California lawmakers who want to crack down on financial fraud following the bank’s recent scandal involving employees who opened fake accounts on behalf of unsuspecting consumers.
SB 33, a bill proposed by State Sen. Bill Dodd, D-Napa, prohibits financial institutions from forcing customers to give up their legal rights when the bank has committed intentional fraud or identity theft. At least 3,500 Wells Fargo employees opened fraudulent 1.5 million bank accounts and 565,000 credit cards without the consent of their customers. Wells Fargo targeted the most vulnerable victims: immigrants who spoke little English, older adults with memory problems, college students opening their first bank accounts, and even small businesses owners with several lines of credit.
Not only did consumers suffer the initial violation of being defrauded, but the ensuing financial losses and damage to their credit ratings have been devastating insults added to injury.
Then the bank had the audacity to argue that claims brought over the fraudulent accounts were bound by the secret and private arbitration clauses the customer signed in the underlying account–accounts that were never agreed to. Even more audacious was that courts bought those arguments. The Wells Fargo scandal has given us the evidence we need to illustrate for lawmakers the horrors that occur in forced consumer arbitrations.
Executive Director of the Consumer Federation of California, Richard Holober, angrily condemned Wells Fargo’s extensive pattern of deception, and stressed the need for legislation like SB 33. “Wells [Fargo] is spending a fortune on advertisements portraying a contrite bank sincerely devoted to its customers’ best interests. But when its victims sought justice, the bank hid behind legal fine print in fraudulent secret contracts to lock the doors to the courthouse. SB 33 will correct this outrage.”
“I am not a fan of the clauses,” says Dodd. “In the end, they favor whoever is contracting out for the arbitrator, for obvious reasons. My bill essentially says that if a bank or financial institution [has] either defrauded or perpetuated consumer fraud on a customer . . . the bank would lose the ability to automatically go to the arbitration clause, and the employee or victim could have their claim heard in a court of law.”
The legislation may seem at odds with Dodd’s background as a former board member of the Napa Community Bank, and has confused some in the banking industry. But Dodd has emphatically responded a bank’s bottom line comes second after protecting consumers.
A thorough study from the federal Consumer Financial Protection Bureau agreed with Dodd’s claims of arbitration favoring corporations over consumers. Not only do rules of evidence not apply in such proceedings, but also the fact that businesses pay arbitration fees time and again, while a consumer will only appear before the arbitrator no more than once, tips the scales in business’ favor.
As for its road to passage, SB 33 faces probable opposition from business-friendly Democrats in the Assembly, who opposed arbitration bills backed by consumer groups, as well as from Gov. Jerry Brown, who has gone on record as saying that he opposes “blanket prohibition” of arbitration restriction–though is open to “targeted legislation.”
Additional opposition comes from the California Chamber of Commerce. CalChamber claims that the Supreme Court holds that SB 33 interferes with the fundamental attributes of arbitration, and is pre-empted by the Federal Arbitration Act. Time will tell if this will derail Dodd’s legislation permanently.
The bill has moved into consideration by both the Senate Judiciary and Appropriation Committees. As a consumer advocate and a past president of Consumer Attorneys of California, I’ve been working with lawmakers to offer my expertise and input in the drafting of this legislation. SB 33 is one of several CAOC sponsored bills aimed at seeking accountability against wrongdoers in cases involving lender liability, personal injury, product liability and environmental degradation.
Lender liability is the area of law that protects a borrower against a lender when the lender has failed to fulfill all of its obligations under the loan agreement. At Kabateck Brown Kellner, LLP, we have handled numerous lawsuits against financial institutions alleging violations of the law.
If you or a loved one believes to have been the victim of a lender’s unlawful practices, or if you wish to learn more about your rights in this area of the law, give us a call today. An experienced attorney at Kabateck Brown Kellner, LLP can help you explore all of your options and ultimately achieve for you the maximum compensation for your harm.
Brian Kabateck wrote new legislation aimed at unclogging California courts.
Several bills designed to facilitate settlement, streamline jury trials, and reduce inefficiency were recently chaptered and came into effect on January 1, 2016. AB 1141 (summary adjudication motions and offers to compromise) and SB 383 (meet and confer prior to demurrer) were sponsored by both the Consumer Attorneys of California (“CAOC”) and California Defense Counsel, in an effort to unclog dockets and obviate the calendaring of trials several years away. CAOC also sponsored AB 555, which makes expedited jury trials mandatory for many limited jurisdiction cases and extends the sunset for voluntary expedited jury trials in all other cases.
Governor Brown on September 28, 2015, and mandates expedited jury trials in many limited jurisdiction cases and provides an avenue for expedited jury trials in all other cases when both parties so desire. The author, Assembly Member Luis Alejo, explained that this bill expands the expedited jury trial (“EJT”) option, which was implemented in 2011 to help courts deal with overloaded dockets resulting from major budget cuts and courtroom closures. (Assem. Floor Analysis of Assem. Bill No. 555 (2015- 2016 Reg. Sess.) as amended Aug. 26, 2015, p. 4.) “EJTs are ideal for cases involving smaller dollar amounts that do not involve catastrophic injuries and cases that affect lower-income workers. These cases are prone to being lost in the system and leaving vulnerable Californians without compensation.” (Ibid.)
Also chaptered on September 28th, and in furtherance of judicial expediency and economy, AB 1141 (Chau, 2015-2016 Reg. Sess.) authorizes state courts to summarily adjudicate portions of causes of action or affirmative defenses. Previously, summary adjudication was generally limited to rulings resolving an entire cause of action or affirmative defense. Until January 1, 2015, Code of Civil Procedure section 437c allowed for the parties to stipulate to resolve legal issues not expressly resolving a claim, cause of action or duty. That provision sunsetted on December 31, 2014. AB 1141 reactivated the right of parties to stipulate to resolve important legal issues by summary adjudication even if not expressly covered in section 437c.
AB 555 and AB 1141 present practical solutions to balance the competing priorities of (1) access to courtrooms and (2) expediency in the face of an overwhelmed docket. Adjudicating issues by way of motions for summary adjudication allows courts to dispose of legal issues prior to trial and to streamline trials by narrowly focusing on the disputed issues that the parties are unable to resolve. Expedited jury trials began in California in 2011 and were modeled after a Charleston, South Carolina procedure introducing EJTs with reduced jury size, flexible rules of procedure, and a goal of completing trial in one day. (See Assem. Floor Analysis of Assem. Bill No. 2284 (2009-2010 Reg. Sess.) as amended Aug. 18, 2010, p. 7.) Expanding EJTs by making them mandatory in smaller cases should both allow efficiency in smaller cases and give less experienced lawyers an opportunity to quickly try cases.
In addition to the summary adjudication amendment, AB 1141 revises the Code of Civil Procedure to create parity between plaintiffs and defendants by allowing a court to order either party to pay the opposing party’s post-offer expert witness costs when the opposing party rejects a section 998 settlement offer and then receives a more favorable judgment or award at trial. This bill corrects a 2005 drafting oversight, allowing a defendant to recover both pre- and post-998 offer expert costs, but permitting a plaintiff to recover only post-998 offer costs. As explained by one court, the policy of section 998 is to encourage settlement by providing a severe penalty for failing to settle when the result after trial is less favorable than the pretrial offer. (See Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804.) Both carrots and sticks encourage and facilitate settlement.
Lastly, SB 383 (Wieckowski, 2015-2016 Reg. Sess.), signed into law on October 1, 2015, requires the parties to meet and confer prior to the filing of a demurrer in order to discuss its anticipated substance, similar to the Central District of California’s Local Rule 7-3, “Conference of Counsel Prior to Filing Motions.” The new law also permits a trial court to hold informal conferences with the parties before the filing of demurrers and allows the parties to ask the court for a conference on subsequent demurrers.
The drafters’ intention in SB 383 was to influence the culture with regard to demurrers. CAOC and the California Defense Counsel recognized the inefficiencies arising from the demurrer process and the resulting docket congestion. Indeed, “[i]n 2013 and 2014, the Los Angeles Superior Court heard 24,300 demurrers” which made up 38 to 45 percent of the law and motion calendar. (Judge Kevin C. Brazile, Elizabeth Mann, Grant Miller, Demurrer Practice Considerations in California Courts (July/August 2015) Los Angeles Lawyer, at 16.)
Amanda M. Riley identifies one inefficiency inherent in the process: “[a]nother drawback [to the demurrer procedure] is the absolute right to amend one time,” allowing the non-moving party to fix any deficiencies and wasting the parties’ and court’s time in analyzing and hearing the demurrer. (Amanda M. Riley, Demurrers—The Complaint Demolisher (June 2003) Orange County Lawyer, at 18-19.)
The first definition of “demur” in Webster’s Dictionary is “delay, hesitate.” (Merriam Webster’s Collegiate Dict. (10th ed. 1993) p. 307.) Indeed, to delay or hesitate is a particularly apt description of the effect demurrers have on civil cases in California courts.
The Honorable Peter Lichtman (Ret.), a respected former Los Angeles Superior Court, Central Civil (“CCW”) judge, reported that he explained to attorneys practicing before him that demurrers were almost always a waste of time, due in part to the “guaranteed second demurrer” arising from the right to amend. As a result of this admonition, he reported hearing a total of approximately five demurrers during his ten years at CCW. He routinely suggested to counsel, in lieu of filing a demurrer, to approach the pleading deficiencies with a motion for summary adjudication filed in conjunction with a motion for judgment on the pleadings, which would allow the moving party to submit evidence to challenge the operative complaint while eliminating the right to amend.
CCW’s overall litigation culture encourages informal conferences where the parties and the court discuss discovery and pleading disputes before time and resources are expended on drafting, filing, and hearing proposed motions. SB 383 moves all California courts in this direction—encouraging informal resolution of issues to avoid docket congestion. CAOC and the California Defense Counsel should continue discussing legislation furthering this cultural shift communication as opposed to time-consuming and inefficient motion practice.
The CCW Courthouse has been designated as the Los Angeles Superior Court branch where complex civil litigation cases are managed. While all of the practices at CCW may not entirely translate to non- complex courtrooms, our general civil courts can certainly learn from CCW’s litigation culture and case management philosophy. CCW attempts to narrow the disputed issues to guide the parties to focus their time and resources on the critical issues while elevating practicality and substance over rigidity and form. Both plaintiffs and defense counsel need to work together with the courts to analyze and implement solutions to the ongoing realities of court congestion and limited resources.
Stakeholders at the state level should continue to brainstorm judicial efficiency ideas and concepts that give courts the opportunity to control their calendars and streamline some processes which have become arcane in the 21st Century.
Brian S. Kabateck is a consumer rights attorney and founder of Kabateck Brown Kellner LLP in Los Angeles. He represents plaintiffs in personal injury lawsuits, mass tort litigations, class actions, insurance bad faith lawsuits, insurance litigations and commercial contingency litigation.
Levi Plesset is a former associate at Kabateck Brown Kellner LLP. He handles various cases for the firm including the areas of insurance coverage and bad faith, class actions, fraud, employment law and personal injury law.
Brian Kabateck’s ability to straddle the legal and political world has made him a strategic and outspoken advocate for consumer and patient rights. As the former President of the Consumer Attorneys of California (CAOC), Mr. Kabateck drew on his strong leadership abilities to bring change to some of the state’s most contentious problems. Under his direction, he brokered a consensus on issues including protecting patient safety and court funding. He has worked tirelessly with the California Legislature and California Department of Insurance to draft many laws for some of the state’s largest industries.
The NAACP, the nation’s largest civil rights organization, retained attorneys Brian Kabateck and Richard Kellner to file lawsuits against 15 lenders because the banks steered many African-American borrowers to high-cost loans during the subprime lending boom, even though many of those borrowers could have qualified for lower interest rates. Kabateck and Kellner successfully prosecuted the case and got Wells Fargo to agree to change its lending practices. Wells Fargo also allowed the NAACP to have access to its ongoing practices and adopted the NAACP’s Banking Principles on Fairness & Lending, created to guard against racial discrimination in lending. The settlement provides for funding of a groundbreaking national network of “Financial Freedom Centers” that will distribute financial education and related assistance to underserved black communities, and Wells Fargo also agreed to provide access to loan data to ensure compliance with the fair lending principles. Wells Fargo will work with the NAACP to improve fair credit access to black-owned businesses and increase sustainable homeownership. Following the Wells settlement, two other major banks have similarly resolved lawsuits filed by the NAACP and Kabateck Brown Kellner LLP.
KBK’s work on this case earned Brian Kabateck a CAOC Attorney of the Year Nomination in 2010: