FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT doc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERONICA GUTIERREZ; ERIN WALKER;

WILLIAM SMITH, individually and on

behalf of all others similarly situated,

Plaintiffs-Appellees,

v.

WELLS FARGO BANK, NA,

Defendant-Appellant.

No. 10-16959

D.C. No.

3:07-cv-05923-

WHA

VERONICA GUTIERREZ; ERIN WALKER;

WILLIAM SMITH, individually and on

behalf of all others similarly situated,

Plaintiffs-Appellees,

v.

WELLS FARGO BANK, NA,

Defendant-Appellant.

No. 10-17468

D.C. No.

3:07-cv-05923-

WHA

2 GUTIERREZ V. WELLS FARGO

VERONICA GUTIERREZ; ERIN WALKER,

Plaintiffs-Appellants,

and

WILLIAM SMITH, individually and on

behalf of all others similarly situated,

Plaintiff,

v.

WELLS FARGO BANK, NA,

Defendant-Appellee.

No. 10-17689

D.C. No.

3:07-cv-05923-

WHA

OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted

May 15, 2012—San Francisco, California

Filed December 26, 2012

Before: Sidney R. Thomas, M. Margaret McKeown,

and William A. Fletcher, Circuit Judges.

Opinion by Judge McKeown

GUTIERREZ V. WELLS FARGO 3

This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Banking Law

The panel affirmed in part and reversed in part the district

court’s issuance of a permanent injunction requiring Wells

Fargo Bank to cease its practice of charging overdraft fees

based on its posting in high-to-low order for all debit-card

transactions, and $203 million restitution order to a certified

class of bank customers.

The district court held that the bank’s actions were both

“unfair” and “fraudulent” under California’s Unfair

Competition Law.

As a threshold matter, the panel held that given the

circumstances of this case, the district court’s judgment

should not be vacated on the basis of the Supreme Court’s

intervening decision in AT&T Mobility LLC v. Concepcion,

131 S. Ct. 1740 (2011), and denied the bank’s post-judgment,

post-appeal request that this dispute be arbitrated under a

permissive arbitration clause contained in a contract between

the parties.

The panel also held that the Bank’s decision to post

payments to checking accounts in a particular order is a

federally authorized pricing decision. The panel further held

that the National Bank Act preempts the application of the