Daily Labor Report®

Wells Fargo Beats Termination Suit Tied to Cross-Selling

Jan. 8, 2019, 7:40 PM

Wells Fargo Bank defeated an appeal by a Fort Lauderdale, Fla., employee who said she was fired for refusing to participate in the illicit sales practices that drove a 2016 national scandal and led to $185 million in penalties.

Diana Berber isn’t entitled to a preliminary injunction forcing Wells Fargo to rehire her as a personal banker, the U.S. Court of Appeals for the Eleventh Circuit held Jan. 8.

Berber’s alleged injury—improper job loss—was one that could be solved by a money payment, not an irreparable injury calling for injunctive relief, the court said. And her three-year delay in filing suit undercut her case for an injunction, the court said.

Wells Fargo announced in 2016 that thousands of employees had engaged in unethical sales practices, including opening more than 1.5 million deposit accounts and issuing over 500,000 credit card applications for customers without their knowledge. The bank was fined $185 million by federal banking regulators, and the price of Wells Fargo stock dropped sharply.

Berber based her case in part on Wells Fargo’s statements to the U.S. Senate Committee on Banking, Housing, and Urban Affairs. The bank told the committee it had established a process for rehiring employees who believe they were terminated for failing to meet the sales goals that led to the scandal.

The court was “unpersuaded,” saying these statements showed only a willingness to correct past mistakes. They didn’t say anything about the type of harm Berber may have suffered, the court said.

The unpublished opinion was joined by Judges Stanley Marcus and William H. Pryor Jr. and Senior Judge R. Lanier Anderson.

Metsch Law Firm PA represented Berber. Littler Mendelson PC represented Wells Fargo.

The case is Berber v. Wells Fargo Bank, N.A., 11th Cir., No. 18-11102, unpublished 1/8/19.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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