Veronica Gutierrez v. Wells Fargo Bank

MEMORANDUM

In Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712 (9th Cir.2012), we held that the National Bank Act preempts state regulation of the posting order of debit card transactions. Because the restitution award was predicated on the. district court’s conclusion that state law prohibited Wells Fargo from posting debit transactions in a high-to-low order, we vacated and remanded for the district court to determine “what relief, if any,” was owed to the plaintiffs (collectively “Gutierrez”) on the surviving state law fraud and misrepresentation claims. Id. at 730 .

On remand, the district court awarded Gutierrez the same amount of restitution, enjoined Wells Fargo from making certain false or misleading statements, and denied Gutierrez’s request for prejudgment interest. We affirm the district court’s award of restitution and denial of prejudgment interest. We vacate the district court’s injunction and remand for entry of an injunction consistent with this memorandum disposition.

I. Restitution

Wells Fargo attacks the restitution ■ award on multiple grounds. It first contends that a pretrial email sent by Gutierrez’s counsel waived any claim to restitution arising from…