Mitchell v. Wells Fargo Bank (280 F. Supp. 3d 1261, 2017)

MEMORANDUM DECISION AND ORDER RESERVING RULING ON DEFENDANTS’ MOTION TO COMPEL ARBITRATION PENDING A SUMMARY TRIAL

Clark Waddoups, United' States District Judge

Sixty-seven plaintiffs have sued Wells Fargo Bank, N.A. and Wells Fargo & Company (“Wells Fargo”) for engaging in various unauthorized and fraudulent activities using them personal information. (See ECF No. 69 (Third Am. Compl. [hereinafter “TAC”]).) Plaintiffs purport to represent a class of individuals .who opened accounts with or purchased services from Wells Fargo, or a bank later acquired by Wells Fargo, and/or were notified that Wells Fargo had opened an account or service on their behalf without their knowledge or consent, and who thereby suffered damages from the unauthorized and fraudulent activities. (TAC ¶¶ 24, 582.)

Wells Fargo has moved to compel all but two of the Plaintiffs to arbitrate their claims pursuant to arbitration agreements embedded in the Plaintiffs’ authorized account agreements or other agreements. (See generally EC.F No. 88 (“Mot”).)

For the reasons discussed below, the court RESERVES ruling on Wells Fargo’s Motion to Compel, (ECF No. 88). Material questions. of fact preclude the court.from finding, as a matter law, that (1) certain Plaintiffs have formed agreements to arbitrate with Wells Fargo; (2) the remaining Plaintiffs have formed valid agreements to delegate all threshold questions to an arbitrator; and (3) Wells Fargo has not intentionally waived its right to seek arbitration, in the circumstances. As further elaborated below, the court must proceed to a summary trial under the Fed-erai Arbitration Act (FAA or Act) to resolve these factual disputes. See Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 984 (10th Cir. 2014) (observing that “when factual disputes may determine whether the parties agreed to arbitrate, the way to resolve them ... is by proceeding summarily to trial”).

BACKGROUND

A. Wells Fargo’s Unauthorized Accounts Scandal

In September 2016, news broke that Wells Fargo had entered into a consent order including penalties of $185 million with three governmental agencies, after investigations revealed that Wells Fargo had opened millions of unauthorized accounts and products without consumer knowledge. (See TAC ¶ 66 & Ex. 1, p. 5; Consent Order, Consumer Fin. Prot. Bureau (CFPB), 2016-CFPB-0015 (Sept. 8, 2016).)- An independent review going back to 2011 “identified approximately 2.1 million potentially unauthorized consumer and small business accounts, including 623,000 consumer and small business unsecured credit card accounts.” Wells Fargo Form 10-Q, Quarterly Report for period ending September 30, 2016, p. 3 (hereinafter, “Form 10-Q’’). Wells Fargo’s CEO at the time, John Stumpf, was called to testify before the U.S. Senate Banking Committee regarding the misconduct, and he acknowledged the opening of unauthorized accounts and widespread misconduct in sales practices. See U.S. Senate Comm. on Banking, Hous., & Urban Affairs, “An Examination of Wells Fargo’s Unauthorized Accounts and the Regulatory Response” (Sept. 20, 2016); see also Form 10-Q at 3, 67, 121 (acknowledging investigations by and settlements with government agencies and numerous lawsuits related to wrongdoing in sales practices).

Investigations have concluded that sales practice violations were widespread and recognized within the company for many years. A report commissioned by Wells Fargo’s Board of Directors noted that internal departments first noticed an increase, in sales practice violations in 2002. Independent Directors of the Board of Wells Fargo & Co., Sales Practices Investigation Report, pp. 31, 88-90 (April 10, 2017) (ECF No. 69-5 [hereinafter Sales Practices Report ]). In 2004, a sales integrity taskforce, including representatives in Wells Fargo’s Community Bank, Internal Investigations, and Law Department, produced a report finding that employees could not meet the bank’s aggressive sales goals without cheating or gaming the system. Id. at 89. The taskforce recommended eliminating sales goals for employees, and the report was relayed to senior Wells Fargo management, but no action appears to have been taken at the time. Id. at 31, 89-90. The Board’s report noted an “array of misconduct” continued to occur, including issues with “customer consent, generally employees opening unauthorized personal checking or savings accounts for existing customers;, falsification of bank records, generally falsifying customer identification or contact information or forging customer signatures; funding manipulation, generally employees •funding an account held by a customer with their own money or money from another account held by that customer; and the creation of unnecessary accounts, generally employees opening accounts which served no customer financial need .... ” Id. at 36. The report found that “sales integrity issues reflected a systemic breakdown in Wells Fargo’s culture and values and an ongoing failure to correct the widespread breaches of trust in the misuse of customers’ personal data and financial information.” Id. at 78. Sales practice violations continued and increased through at least 2013, after which more attention was brought to the issue and violations apparently declined. Id. at 6. Wells Fargo finally eliminated sales goals in October 2016, after the announcement of the Consent Order and attendant penalties. See Form 10-Q at 3.

In August 2017, Wells Fargo announced ' that a third-party review had revealed more potentially unauthorized cases, bringing the total reported unauthorized accounts, credit cards, and other services between 2009 and 2016 to about 3.5 million. On October. 3, 2017, Wells Fargo’s new CEO, Tim Sloan, testified in front of the Senate Banking Committee about this latest disclosure, as well as Wells Fargo’s use of forced mandatory arbitration of these disputes..

B. This Action

On September 16, 2016, in the midst of this public scandal, individuals residing in Utah and many other states filed this action against Wells Fargo. (See ECF No. 2.) Plaintiffs have amended their complaint three times, most recently on June 27, 2017. (ECF Nos. 6, 15, 69.) Plaintiffs pursue several legal theories against Wells Fargo, including violations of Utah law protecting privacy and personal information; the Stored Communications Act, 18 U.S.C. § 2702; the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801; the Fair Credit Reporting Act, 15 U.S.C. § 1681; anti-tying violations, 15 U.S.C. § 1972; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68; electronic mail fraud, 18 U.S.C. § 1037; conversion; fraud and misrepresentation; unjust enrichment; intentional/negligent infliction of emotional distress; and declaratory and injunctive relief. {See TAC at 1, 94-136.) Plaintiffs seek class certification; an injunction enjoining Wells Fargo from further misconduct; compensatory, statutory, and punitive damages (in excess of one billion dollars ($1,000,000,000.00)); and costs and attorneys’ fees. {See id. at 136-37.)

On November 23, 2016, Wells Fargo moved to compel arbitration as to fifty-eight of the eighty named Plaintiffs and sought to dismiss the Second Amended Complaint. (ECF Nos. 24 & 30.) In light of the motion to compel, the parties stipulated and moved the court to stay the dismissal arguments and any discovery not connected to the issue of arbitration. (ECF Nos.' 36 & 37.) After the parties completed briefing on the motion to compel, the court received notice that the Judicial Panel on Multidistrict Litigation (“JPML”) would hear argument on whether to create an MDL action from the several cases filed against Wells Fargo related to fraudulent account openings. The court stayed the case pending the JPML’s decision. (ECF No. 64.)

On April 6, 2017,, the JPML determined it would not order centralization due to the nationwide class settlement-in-principle reached by the parties in the first-filed putative class action, Jabbari v. Wells Fargo Bank, N.A., No. 3:15-cv-2159-VC, 2015 WL 3485066 (N.D. Cal., filed May 13, 2015). See In re Wells Fargo Fraudulent Account Opening Litig., 282 F.Supp.3d 1360, 1384-85, 2017 WL 1283679, at *1 (J.P.M.L. Apr. 5, 2017). Plaintiffs then moved to lift the stay in this case. (ECF No. 55.) On April 13, 2017, the court heard argument from the parties regarding the propriety of lifting the stay in light of the pending Jabbari settlement. (See ECF Nos. 58, 61.)'The court ultimately lifted the stay for the limited purpose of hearing argument on the motion to compel. (ECF No. 60.) On June 7, 2017, the court held a hearing on the motion, during which the court granted Plaintiffs’ oral motion to amend their complaint. (ECF No. 67.)

Plaintiffs filed their currently operative Third Amended Complaint on June 27, 2017. (ECF No. 69.) In light of the amended pleadingj the court denied Wells Fargo’s motions to compel and dismiss without prejudice and set a briefing schedule for refiling. (ECF No. 73.) The court also facilitated the parties’ efforts to identify information about twenty-one named Plaintiffs whom Wells Fargo had not been able to identify, to determine whether these Plaintiffs were also potentially subject to arbitration agreements. (See ECF Nos. 76-80.)

On September 18, 2017, Wells Fargo renewed its Motion to Compel Arbitration as to sixty-five out of the sixty-seven Plaintiffs remaining in the case. (See ECF No, 88.) The Motion has been -fully briefed,- (see ECF Nos. 103, 109), and the court heard argument on October 31, 2017, (ECF Nos. 111, 112). This order follows.

LEGAL STANDARD

The FAA was enacted in 1925, and reenacted and codified in 1947. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 288, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). its core 'substantive provisions have not been amended since. See id.; 9 U.S.C. § 2-4.

Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. This provision balances the “liberal federal policy favoring arbitration” with the “fundamental principle that arbitration is a matter of contract.” AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (first quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); then quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010)). The Act places arbitration agreements “on equal footing with other contracts,” Waffle House, 534 U.S. at 293, 122 S.Ct. 754, and courts enforce them on their terms and according to the parties’ intentions, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), unless invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability,” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996).

(The Supreme Court has consistently emphasized that “arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes— -but only those disputes — that the parties have- agreed -to submit to -arbitration.” First Options, 514 U.S. at 943, 115 S.Ct. 1920. “[Ajrbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986 (citing Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974)). Thus, “[arbitration under the FAA is a matter of consent, not coercion.” Waffle House, 534 U.S. at 294, 122 S.Ct. 754 (quoting Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).

A party may petition, a court to compel another party to arbitrate under the terms of their agreement if the court is “satisfied that the making of the agreement for arbitration ... is not in issue.” 9 U.S.C. § 4. But “[i]f the- making of the arbitration agreement ... be in issue, the court shall proceed summarily to the trial thereof.” Id. As the Tenth Circuit has acknowledged, “before .the Act’s heavy hand in favor of arbitration swings into play, the parties themselves must agree to -have their disputes arbitrated,” for “even under the FAA it remains a ‘fundamental principle’ that ‘arbitration is a matter of contract,’ not something to be foisted on the parties at all costs.” Howard, 748 F.3d at 977 (quoting Concepcion, 563 U.S. at 339, 131 S.Ct. 1740); see Commc’n Workers of Am v. Avaya, Inc., 693 F.3d 1295, 1300 (10th Cir. 2012) (“Because arbitration is a creature of contract, a party cannot be forced to arbitrate any issue he has not agreed to submit to arbitration.”).

Wells Fargo, as the party seeking to compel arbitration, has the burden to show that arbitration agreements exist and apply to these Plaintiffs. See Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012). The court affords the Plaintiffs, as the party resisting arbitration, “the benefit of all reasonable doubts and inferences that may arise.” Id. (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980)). If the court finds material factual disputes preclude it from determining the arbitration question as a matter of law, the court must proceed to a summary trial to resolve those disputes of fact. Howard, 748 F.3d at 978.

THE PLAINTIFFS & ALLEGED AGREEMENTS

Wells Fargo seeks to compel to arbitration Plaintiffs who initially interacted or engaged with Wells Fargo in varied circumstances. In order to understand which contracts may be relevant, the court has broken the Plaintiffs into sub-groups by the account type or service allegedly opened and quotes the relevant language in the agreements associated with these accounts or services. Because Plaintiffs opened consumer accounts going back to 1982, and up through 2016, the court has laid out the changes to Wells Fargo’s contract language from 2003 (the earliest agreement provided) through 2016.

A. Consumer accounts

Fifty Plaintiffs appear to have opened consumer accounts or services with Wells Fargo between 1982 and 2016 (“consumer account Plaintiffs”). These accounts include checking and savings accounts (including “out-of-store” or “off-site” accounts), “consumer time accounts,” credit cards, a “Cash on Demand” account, an IRA account, online banking services, and mortgage loans.

Between at least 2003 and 2016, consumers who opened a checking and/or savings account with Wells Fargo signed a Consumer Account Application, which states, in small type directly above the signature line or the bottom of the page immediately before:

I have received a copy of the applicable account agreement and privacy brochure and agree to be bound by them .... I also agree to the terms of the dispute resolution program described in the account agreement Service Agreement and Product Guide. Under this program our disputes will be decided before one or more neutral persons in an arbitration proceeding and not by a jury trial or a trial before a judge.

(ECF No. 99, Exs. 4-A & 25-A (2007); see Exs. 29-A & 56-A (2003) (includes substantially the same language, and the last two lines are bolded), 33-A (2016) (includes substantially the same language, but also notes that the applicable account agreement and privacy brochure “may be amended from time to time,” and the first and third lines are bolded).)

Wells Fargo represents that the “applicable account agreement” mentioned in the application is the Consumer Account Agreement (CAA) that each consumer receives when opening a new account or service. Wells Fargo submitted the declaration of Karen Nelson, a Vice President of Wells Fargo and Operational Risk Consultant, attesting to Wells Fargo’s recording-keeping policies and common business practices around account openings, conversions, and other transactions. (See Nelson Decl. ¶¶ 1, 4-5, ECF No. 90.) As to the CAAs, Ms. Nelson avers:

According to the Bank’s standard operating procedure, the Consumer Account Agreement was included as a part of a package called the ‘New Account Kit’ that was physically handed to the customer, or mailed to him or her, when the account is opened. The customer is also provided a document titled Consumer Account Addenda that reflects any changes since the packaging of the New Account Kit. The operative Consumer Account Agreement is available upon request at any banking location and, since 1999, has been available on Wells Fargo’s website, located at https://www. wellsfargo.com/.

(Id. ¶ 7.) Wells Fargo notes that the CAAs have been amended from time to time, but contends that the dispute resolution provisions within the CAAs have “remained materially unchanged.” (Mot. at ¶ 151; see Nelson Decl., Exs. 1-A to 1-N (CAAs from 2003 to 2016).) After reviewing the CAAs, however, the court finds that Wells Fargo has noticeably broadened the dispute resolution language over this time. Thus, the court first presents the language starting in 2003, which noticeably changed in 2011, and changed again in 2016.

In April 1, 2003, the first section of the CAA was entitled “Terms for All Consumer Deposit Accounts.” This introductory section stated, in relevant part:

Together, these terms arid conditions form a binding contract and make up the entire agreement between you and us regarding your deposit account (“Agreement”), and supercede [sic] all prior agreements governing your account. ...

Please note: The Agreement contains the terms of the dispute resolution program to be followed in the event of a dispute between you and the bank (see below). Please read them carefully. Under this program, at the request of you or the bank, disputes must be resolved by an arbitration proceeding before a neutral arbitrator. If arbitration is requested, you do not have the right to a jury or court trial to resolve the dispute....

Except where otherwise expressly noted, this Agreement governs only your consumer deposit accounts and deposit services; it does not govern, for example credit accounts or credit-related services.

(Nelson Decl., Ex. 1-A, pp. 4-5 (bold in original).) The dispute resolution section followed this initial section and provided, in relevant part:

Non-Judicial Resolution of Disputes

... [I]f you and the bank are not able to resolve the differences informally, you agree, by opening or maintaining a deposit account with the bank or by accepting a service from us described in this Agreement, such as our Safe Deposit Box service, that any dispute between you and the bank, regardless of when it arose, shall be resolved using the following procedures.

You understand and agree that you and the bank are each waiving the right to a jury trial or a trial before a judge in a public court.

Disputes

A dispute is any unresolved disagreement between you and the bank relating in any way to accounts or services described in this Agreement .... It includes any claim that arises out of, or is related to, these accounts, services or related agreements. It includes claims based on broken promises or contracts, torts (injuries caused by negligent or intentional conduct) or other wrongful actions. It also includes statutory, common law and equitable claims. A dispute also includes any disagreement about the meaning of this Arbitration Agreement, and whether a disagreement is a “dispute” subject to binding arbitration as provided for in this Arbitration Agreement.

(Id. at 5-6 (bold in original).) The October 2004 through October 2011 OAAs contained substantially the same language, with stylistic updates in 2008. (See id. Exs. 1-B, p. 8-9 (2004); 1-F, p. 4 (2008; simplified layout).) The 2004 CAA removed the language .in the prior version stating that the agreement only governed the consumer’s deposit accounts and services, rather than credit accounts or services.

The CAA effective October 15, 2011 appears to have both simplified and broadened the definition of “disputes” in the dispute resolution section:

Binding arbitration

If you have a dispute with the Bank, and you are not able to resolve the dispute informally, you and the Bank agree that upon demand by either you or the Bank, the dispute will be resolved through the arbitration process as set forth in this part. A “dispute” is any unresolved disagreement between you and the Bank. It includes any disagreement relating in any way to services, accounts or matters; .... It includes claims based on broken promises or contracts, torts, or other wrongful actions. It also includes statutory, common law, and equitable claims.

“Disputes” include disagreements about the meaning, application or enforceability of this arbitration agreement.!., YOU AGREE THAT YOU AND THE BANK ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT.

(Id. Ex. 1 — I, p, 4 (emphasis in original).) Further down the page, in the section entitled “Arbitration procedure; severability,” the 2011 CAA states, in relevant part: “The parties agree that in this relationship: ... (2) The arbitrator shall decide any dispute regarding the enforceability of this arbitration agreement; ....” (Id.) This dispute resolution section remained unchanged until the July 15, 2015 update.

The July 2015 and April 2016 CAAs reflect the .most simplified dispute resolution section yet. First, as in prior CAAs, an introductory section presents generally applicable terms and definitions for “your account and any services.” (Id. Ex. 1-N, p. 2.) The next section, entitled -“Resolving disputes through arbitration,” states:

Arbitration Agreement between you and Wells Fargo

If you have a dispute, we hope to resolve it as quickly and easily as possible. First, discuss your dispute with a banker. If your banker is unable to resolve your dispute, you agree that either Wells Fargo or you can initiate arbitration as described in this section.

Definition: .. V A-“dispute” is any unresolved disagreement between Wells Fargo and you. A “dispute” may also include a disagreement about this Arbitration Agreement’s meaning, application or enforcement.

Wells Fargo and you each agrees [sic] to waive- the right to a jury trial or a trial in front of a judge in a public court.

(Id. Exs. 1-M & 1-N, p. 3.) Further down the page the agreement has a bullet pointed section entitled “What rules apply to arbitration?” that states: “If this Arbitration Agreement is in dispute, the arbitrator will decide whether it is enforceable.” (Id.)

Every CAA from 2003 to 2016 contains a waiver of class action arbitration; mandated non-disclosure of arbitration proeeed-ings; a provision shifting the costs and expenses associated with compelling arbitration to the -party“resisting it; and a statement that the arbitration proceedings will be governed by the American Arbitration Association (AAA) rules, to the extent they do not conflict with the terms of the Arbitration Agreement. (See id. Exs. 1-A, pp. 5-7 (2003); 1-N, pp. 3-4 (2016).) The 2016 CAA also states: “If a service we offer has a separate agreement, and there is a conflict between the terms of the Agreement and the separate agreement, the separate agreement will apply.” (Id. Ex. 1-N, p. 5.)

Although Wells Fargo,, connects each consumer account to the relevant. CAA in effect at that time (i.e., a checking account opened before November 1, 2007 would have been subject to the October 2006 CAA), Wells Fargo ultimately contends that the operative CAA for this analysis is the April. 2016 CAA (assuming all consumer account Plaintiffs have, authorized accounts that remain open in 2016). Wells Fargo bases this conclusion on other provisions in the CAAs. The CAAs each contain a (unilateral) modification clause, stating that Wells Fargo “can change, the Agreement by adding new terms or conditions, or by modifying or deleting existing ones” at any time and with no strict requirement of notice, and a merger clause, stating that the most recent CAA “is the entire Agreement between Wells Fargo and you for your account and any services” and “[r]eplaces all prior agreements.” (Id. Ex. 1-N, p. 2 (2016 CAA).)

Many Plaintiffs submitted declarations pertaining, to the CAAs. (See Opp’n Ex. C, ECF: No. 103-3.) Plaintiffs each contend that they,were not provided with any paperwork during their enrollment, other than the account application, and that they do not recall receiving any other documentation. (See, e.g., id. at 7 (Decl. of Nicholas Beach); see also Opp’n at viii (alleging that if Mr. Beach received any paperwork, it was, not until he had made a deposit and was ready to leave the bank).) Others allege that they were not informed of what constituted “a copy of the applicable account agreement, and privacy policy,” and were not given those documents. (See, e.g., Opp’n at xxiii (Jennifer Ellsworth), xxviii (Aaron Hands).) Some deny any authorized account openings at all, contending that the signatures Wells Fargo produced are forged. (See, e.g., id. at xxvii (Andrew Go-ryeb).) Invariably though, Plaintiffs allege they never agreed to an arbitration agreement or delegation clause, and never would have agreed to an arbitration agreement or delegation clause if they had been informed of Wells Fargo’s misconduct. (See generally Opp’n Ex. C.)

B. Converted accounts

Nine Plaintiffs opened accounts with banks later acquired by Wells Fargo (i.e., First Security, Wachovia, and Norwest) between 1986 and 2011 (“conversion Plaintiffs”). Wells Fargo does not dispute that these banks did not have arbitration agreements when these Plaintiffs opened their accounts or when Wells Fargo acquired the banks. (See, e.g., Nelson Decl., Exs. 10-C (First Security account form); 34-A (Wachovia Customer Access Agreement); 43-A (First Union/Wachovia Customer Access Agreement); 47-A (World Savings Bank account form); 55-A (Norwest account form).) Instead, Wells Fargo asserts that it sent account conversion mailings to each of these customers, after each bank was acquired and shortly prior to the time the accounts were converted, and that each mailing contained the relevant CAA with the dispute resolution terms therein.

For example, First Security merged with Wells Fargo in 2000, and First Security accounts in Utah were converted to Wells Fargo accounts in 2001. (E.g., Mot. at ¶ 20; Nelson Decl. at ¶ 33 (Travis Ashby).) Wells Fargo asserts that all First Security accounts received a mailing on March 19, 2001 with a welcome letter about the conversion and an enclosed “consumer disclosure,”- which included the CAA effective at the time. (See Nelson Deck at ¶33.) Wells Fargo utilized First Security’s database to send the mailings to the same addresses at which customers received their monthly account statements. (Id.) Wells Fargo employed “multiple validation procedures” to ensure each consumer’s address was accurately captured for the mailings; if a mailing was returned as undeliverable, that would have been reflected in the consumer’s mailing file. (Id.) Similarly, when Wells Fargo acquired Wa-chovia in 2011, a conversion package with a welcome letter and disclosure packet was mailed to each Wachovia account holder with a mailing address in the Wachovia system. (Id. ¶ 116.) The welcome letters do not mention or discuss any arbitration agreement or dispute resolution program, but simply state that the consumer disclosure booklets “explain the terms and conditions that will govern” the converting accounts and services. (E.g., id. at Ex. 34-B (Wachovia conversion letter).) Wells Fargo attached to its motion copies of form welcome letters and consumer disclosure booklets.

These Plaintiffs, in declarations and/or allegations in opposition to Wells Fargo’s Motion, contend that they never spoke with anyone at the bank about the terms or conditions of Wells Fargo’s accounts prior to the account conversions; do not recall ever receiving a welcome letter or conversion package; and do not recall any periodic updates in the terms and conditions of their accounts. (E.g., Decl. of Travis Ashby, Opp’n Ex. C at 3; Opp’n vi-vii (allegations of Travis Ashby).) They also state that they never agreed to an arbitration agreement or a delegation provision, and would never have agreed to arbitrate or delegate arbitrability if they had been informed of Wells Fargo’s misconduct. (E.g., Opp’n Ex. C at 3.)

C. Business accounts

Six Plaintiffs opened business checking or savings accounts between 1996 and 2014 (“business account Plaintiffs”). When an individual opens a business account with Wells Fargo, they sign a Business Account Application. A “Certificate of Authority” section on the page before the signature page provides, in small, bold print:

The customer’s use of any Bank deposit account, product or service will confirm the Customer’s receipt' of, and agreement to be bound by, the Bank’s applicable fee and information schedule and account' agreement that includes the Arbitration Agreement under which any dispute between the Customer and the Bank relating to the Customer’s use of any Bank deposit account, product or service will'be decided hi'an arbitration proceeding before a neutral arbitrator as described in the Arbitration Agreement and not by a jury or court trial.

(E.g., Nelson Decl., Ex. 59-A (Jennifer Zeleny).) Wells Fargo again represents that the “account agreement” mentioned above is the “Business Account Agreement” (BAA), and describes a procedure for providing the BAA to the customer that is identical to the CAA procedure:

According to the Bank’s standard operating procedure, the Business' Account Agreement was included as a part of a package called the “New Account Kit” that was physically handed to the customer, or mailed to him or her, when the account is opened. The customer is also provided a document titled Business Account Addenda that reflects any changes since the packaging of the New Account Kit. The operative 'Business Account Agreement is available upon request at any banking location- and, since 1999, has been available on Wells Fargo’s website, located at https://www.wellsfargo.com/.

(Id. ¶ 22.)

The dispute resolution language in the BAAs has not changed over time. The most recent version Wells Fargo provided, effective on April 4, 2014, contains a “Dispute resolution program; Arbitration agreement” section that states, in relevant part:

Agreement to arbitrate

Except as stated in “No waiver of self-help or provisional remedies” below, you and the Bank agree, at your or the Bank’s request, to- submit to binding arbitration all claims, disputes, and controversies between or among you and the Bank (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, contract or otherwise arising out of or relating in any way to your account(s) and/or service(s), and their negotiation, execution, administration, modification, substitution, formation, inducement, enforcement, default, or termination (each, a “dispute”).

(Id. Ex. 2-C, p. 4 (bold & italics in original).) On the next page, in the section entitled “Arbitrator qualifications and powers,” the following is embedded in a block of text: “The arbitrator(s) will determine whether or not an. issue is arbitratable .... ” (Id. at 5.) The BAAs also contain a waiver of class action arbitration; mandated non-disclosure of arbitration proceedings; and a statement that the arbitration proceedings will be governed by the American Arbitration Association (AAA) rules, to the extent they do not conflict with the terms - of the Arbitration Agreement. (Id. at 4-5.) Finally, the Arbitration Agreement states:-. “If more than one agreement for arbitration by or between you and the Bank potentially applies to a dispute, the arbitration agreement most directly related to your account or the subject matter of the dispute will control.” (Id. at 6.)

Like the other Plaintiffs, the business account Plaintiffs make allegations relevant to the BAAs. They allege they did not receive the BAA and do not recall arbitration terms. Some of these Plaintiffs allege that Wells Fargo cannot produce signed Business Account Applications. (See, e.g., Ex. 17 (Jamal Dean).) And, again, the Plaintiffs contend that they did not and would not have agreed to an arbitration agreement or delegation clause if they had been told.of Wells Fargo’s misconduct.

ANALYSIS

I, Choice of law

“When deciding whether the parties agreed to arbitrate a certain matter (including' arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944, 115 S.Ct. 1920; accord Jacks v. CMH Homes, Inc., 856 F.3d 1301, 1304 (10th Cir. 2017) (“‘To, determine whether a party has agreed to arbitrate a dispute,’ we ‘apply ordinary state-law principles that govern the formation of contracts.’ ” (quoting Walker v. BuildDirect.com Techs., Inc., 733 F.3d 1001, 1004 (10th Cir. 2013))).

Plaintiffs reside in states spanning from Washington to New Jersey, and North Dakota to Texas. Wells Fargo’s account agreements, moreover, state that the law governing the contracts is generally the law of the state where the Plaintiff opened his or her account. (See Nelson Decl., Ex. 1-N, p. 5.) Thus, a preliminary question arises of which state’s law should apply to the contractual analysis that follows.

“Because Utah is the forum state, Utah choice-of-law rules apply.” Dahl v. Dahl, 2015 UT 79, ¶ 23, — P.3d —. Where two or more states have an interest in a dispute, Utah courts have applied the test in Section 188 of the Restatement (Second) of Conflict of Laws to analyze which state holds “the most significant relationship” to the contractual dispute. Am. Nat. Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996). Here, the parties have not argued the conflict of law issue, and the court cannot determine on this record which state may have the “most significant relationship” to the. dispute, especially considering the nationwide scope of the misconduct at issue. But where the parties fail to argue or demonstrate that another state’s law should apply, a court may default to the forum state’s substantive law. Howard, 748 F.3d at 982 (discussing Kansas law).

Because the elements of contract formation are foundational common law principles widely adopted in the United States, and because the parties made no objection and highlighted no material difference in the contract formation principles among the various states represented in this matter, the court will apply Utah law at this point. Cf. Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1284 (10th Cir. 1997) (noting that a “choice of law analysis is generally unnecessary if the relevant states have enacted identical controlling statutes”).

II. Arbitration

This case -lies at a crossroads in arbitration analysis — not the only case falling in a gray space of overlapping federal arbitration and state contract law, but certainly unique among them. The Plaintiffs dispute the existence of an agreement to arbitrate and/or an agreement to delegate threshold arbitrability issues to an arbitrator. For the majority of the consumer account Plaintiffs, an agreement appears to exist between those Plaintiffs and Wells Fargo for the authorized accounts that the consumer opened with the bank and continued to use. Those agreements appear to control the authorized accounts, and if this were a fight over authorized accounts and services, the court’s determination of the parties’ intentions in contracting would be much simpler.

Instead, Wells Fargo seeks to extend contracts clearly tied to specific authorized accounts or services to unauthorized, un-consented-fo, and previously unknown accounts or services that Wells Fargo unilaterally opened or engaged in without the Plaintiffs consent or agreement. Of 'course, the unauthorized accounts and/or services do not have any associated agreements signed by the Plaintiffs. And Wells Fargo does not typically open a new authorized account or service without requiring that the consumer sign a new contract for that account or service. So, Wells Fargo seeks to use broad arbitration language embedded in a product-associated agreement to capture any dispute that may arise, apparently without limit, even though its general course of conduct in account openings suggests more tailored contracting.

In addition, Plaintiffs allege, and Wells Fargo has for all practical purposes conceded, that the bank knew, of the widespread practice of opening unauthorized accounts and services, cultivated a culture that practically demanded the practice continue for over a decade, and failed to disclose it to new customers at the time any authorized account agreements were signed. The court must undertake the contractual analysis with this background in mind.

A. Existence of an agreement to arbitrate

“Arbitration is a matter of contract, and the FAA requires courts to hon- or parties’ expectations.” Concepcion, 563 U.S. at 351, 131 S.Ct. 1740 (citing Rent-A-Ctr., 561 U.S. at 67, 130 S.Ct. 2772). “A party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Jacks, 856 F.3d at 1305 (quoting AT & T Techs., 475 U.S. at 648, 106 S.Ct. 1415). The general presumption in favor of arbitration “disappears when the parties dispute the existence of a valid arbitration agreement.” Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220 (10th Cir. 2002); accord Jacks, 856 F.3d at 1304 (“When the dispute is whether there is a valid and enforceable arbitration agreement in the first place, the presumption of arbitrability falls away.” (alteration omitted) (quoting Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998))).

“To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation ... of the specific arbitration clause that a party seeks to have the court enforce.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010). “Such issues always include whether the clause was agreed to, and may include when that agreement was formed.” Id. “When parties dispute the making of an agreement to arbitrate, a jury trial on the existence of the agreement is warranted unless there are no genuine issues of material fact regarding the parties’ agreement.” Hardin v. First Cash Fin. Servs., Inc., 465 F.3d 470, 475 (10th Cir. 2006) (quoting Avedon, 126 F.3d at 1283).

“As every first-year law student knows, ‘an agreement or mutual assent is of course essential to a valid contract.’” Jacks, 856 F.3d at 1304 (alteration omitted) (quoting Lucy v. Zehmer, 196 Va. 493, 84 S.E.2d 516, 522 (1954)). Under Utah law, generally, formation of a contract requires an offer, an acceptance, and consideration. Cea v. Hoffman, 2012 UT App. 101, ¶ 24, 276 P.3d 1178, 1185. An offer is a manifestation of willingness to enter into a bargain, and an acceptance is a manifestation of assent to the offer, “such that an objective, reasonable person is justified in understanding that a fully enforceable contract has been made.” Id. ¶¶ 24, 25 (quotations and citations omitted). “Consideration is present when there is an act or promise given in exchange for the other party’s promise.” Id. ¶ 26 (quoting Healthcare Servs. Group Inc. v. Utah Dep’t of Health, 2002 UT 5, ¶ 17, 40 P.3d 591).

Moreover, “[i]t is fundamental that a meeting of the minds on the integral features of an agreement is essential to the formation of a contract.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867, 872 (quoting Richard Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996)), “Thus, a binding contract exists where it can be shown that the parties had a meeting of the minds as to the ‘integral features of the agreement’ and that the terms are sufficiently definite as to be capable of being enforced.” Id. ¶ 14 (alteration omitted) (quoting Prince, Yeates & Geldzahler v. Young, 2004 UT 26, ¶ 13, 94 P.3d 179).

“The proponent of the contract ‘has the burden of showing that an offer and acceptance were more probable than not.’ ” Cea, 2012 UT App. 101, ¶ 27 (quoting Sackler v. Savin, 897 P.2d 1217, 1222 (Utah 1995)). Plaintiffs state that Wells Fargo’s accounts, in general, are suspect due to the bank’s documented history of forging signatures and making misrepresentations during account openings. (See Opp’n at vi.) While this may be true in the abstract, suspicion is not specific enough to create an issue of fact on each and every account Wells Fargo contends is authorized here, especially where Wells Fargo presents billing statements showing account use.

For a number of Plaintiffs, however, their initial engagement with Wells Fargo leaves material questions of fact regarding the formation of an agreement to arbitrate and, more specifically, whether there was notice of and a meeting of the minds on the essential terms of the agreement. See 1-800 Contacts, Inc. v. Weigner, 2005 UT App 523, ¶ 8, 127 P.3d 1241, 1243 (“The court cannot compel the performance of a contract which the parties did not mutually agree upon.” (quoting Pitcher v. Lauritzen, 18 Utah 2d 368, 423 P.2d 491, 493 (1967))).

Zachary Christensen, for example, is alleged to have opened a credit card with Wells Fargo in April 2016. (Nelson Decl. ¶ 62.) Mr. Christensen alleges that he was at an outdoor hot tub event and engaged in discussions with representatives of Bullfrog Spas, and never spoke with Wells Fargo representatives. (Opp’n at xviii.) Wells Fargo attaches monthly statements from July 7, 2016 to November 6, 2016 for the credit card Mr. Christensen allegedly opened. But looking at the account application and billing statements, the court finds numerous factual irregularities. First, the account application is not dated and the full application is not provided. (See Nelson Decl. Ex. 16-A.) Second, the billing statements do not correspond with the alleged April 2016 opening date. (See id. at 16-B.) The account application, above the signature, provides an “Acknowledgement” in bold that the signer has received “a copy of the Credit Card Agreement” and the “Arbitration Agreement contained in the Credit Card Agreement,” (id. at 16-A), but Wells Fargo does not include a Credit Card Agreement with the exhibit, and Mr. Christensen alleges that he did not receive, any Credit Card Agreement (or the CAA). The only other page included with the signature page provides the terms of an “Arbitration Agreement,” but the court cannot determine, with this minimal documentation and brief outline of the interaction, whether Mr. Christensen was, in fact, presented with that page.

Brent Miller contends that he never opened an authorized account with Wells Fargo. (Opp’n at Ixx; see Decl. of Erin J. Cox (Cox Decl.), Ex. E.) Wells Fargo alleges that Mr. Miller signed up for two consumer accounts “off-site.” In support of this, Wells Fargo attaches a signed “Out of Store” Consumer Account Application with the normal disclosure above the signature line noting that the signer has received a copy of the “applicable account agreement” and is agreeing to the dispute resolution terms described' therein, including waiving a. jury trial or a trial before a judge. (Nelson Decl., Ex. 64-A.) Wells Fargo next attaches an unsigned Consumer Account Application from three days later and billing statements that show no account balance or activity. (See id. Exs. 64-B & 64-C.) On the whole, these documents leave serious questions of fact about whether these accounts were even authorized, let alone whether Mr. Miller agreed to arbitrate with Wells Fargo.

Richard.Fountain had a mortgage loan with Wells Fargo. Mr. Fountain alleges that Wells Fargo manipulated his mortgage and lied about a mortgage reduction program, to' the point that he almost lost his house and suffered monetary damages. (See Cox Decl., Ex. J.) Wells Fargo responds by providing his mortgage statement from October 2010. (Nelson Decl., Ex. 70.) In light of the allegations, this document is woefully insufficient to establish an arbitration agreement was formed between Mr. Fountain and the bank.

Denise Poe opened a “Cash on Demand” account in November 2005. (See id. Ex. 41-A.) Wells Fargo provides a “Supplemental Disclosure” ‘ that appears to be signed by Ms. Poe, and that states “you agree to the terms of the Cash on Demand Account Agreement” and “You acknowledge the. existence of the Arbitration Agreement on the following page .... ” (Id.) The following page, however, is not an arbitration agreement, but rather a Cash on Demand checklist. (Id.) In fact, no arbitration agreement follows the signature page presented in Exhibit 41-A. The next Exhibit, 41-B, contains the Cash on Demand Account Agreement, with an arbitration agreement in small print on the final page. (Id. Ex. 41-B, p. 3.) This arbitration agreement appears to be even more expansive than that in the CAAs, and the document footer states it is the “customer copy,”. (Id.) But no facts demonstrate that Ms. Poe was actually presented with or informed of this document, or that she understood that the arbitration agreement therein was the “Arbitration Agreement on the following page” mentioned in the document she signed..

Jeffery Taylor alleges that he went to Wells Fargo for a job interview in November 2012 and that, during the interview, Wells Fargo took his personal information and opened up an account without his authorization. (TAC-¶¶ 412-13.) Wells Fargo contends Mr. Taylor opened an IRA in November 20.12 and . provides his signed IRA form, as well as other documents showing IRA distributions in 2013 and 2014, and an account statement in 2013. (Nelson Decl., Exs. 52-A, 52-C to 52-F.) The IRA form does not discuss any arbitration terms, but the “Retirement Plan Deposit Receipt/Disclosure” also signed that day, does state, above the signature line “I agree with the Consumer Account Agreement you have given me.” (Id. at 52-B.) No reference to arbitration terms or a dispute resolution program is made on that document either. Although the CAA is referenced as having been provided, these circumstances (a joh interview, wherein-a retirement account was opened, with no dispute resolution terms mentioned on the documents signed and no CAA allegedly given) do not show that, as a matter of law, Mr. Taylor agreed to arbitrate with Wells Fargo when he signed up for the IRA.

Edwin Zorrilla allegedly opened a college checking account in January 2012. Mr. Zorrilla alleges that this account was unauthorized. (See Cox. Decl., Ex. K; Opp’n at lxxv-vi.) Wells Fargo attaches his signed account application and account statements showing a substantial deposit into the account in January 2012 and three checks for small amounts withdrawn in March 2012. (See Nelson Decl., Ex. 68-A through 68-D.) Though a close call, the court cannot construe these documents to find, as a matter of law, that this account was in fact authorized and that an arbitration agrees ment was formed in light of Mr. Zorriha’s allegations to the contrary and the requirement, at this stage, that the court view the facts and-reasonable inferences in his favor. See Howard, 748 F.3d at 980 (“So far the district court has only held that a reasonable person could believe [the plaintiffj’s account of the facts .... In deciding this much, moreover, the district court has only and always viewed all the facts in the light most favorable to [the plaintiff].”).

Accounts opened before 2003 also present questions of fact as to the formation of an arbitration agreement between these Plaintiffs and Wells Fargo. For example, Jamal Dean allegedly opened a business checking account in 1996. Wells Fargo does not produce a signed account application for Mr. Dean, but does attach copies of billing statements for this account from 2013, 2015, and 2016. (See Nelson Deck Ex. 17.) Wells-Fargo does not state whether its account contracts had arbitration agreements when Mr. Dean opened the account in -1996, but Wells Fargo contends he agreed to one anyway when he signed up for online banking in December 31, 2013, which included an arbitration agreement as a part of the Online Access Agreement, (See id. at 17-B.) Wells Fargo does not describe how the terms of the Online Access Agreement were presented to a Plaintiff like Mr. Dean, or- how Mr/ Dean’s assent to them was manifested. Wells Fargo contends that Mr. Dean had to “affirmatively agree to the terms of the operative Online Access Agreement by clicking ‘I Agree’ on an online portal,” but provides no description of the portal or the presentation of the agreement terms, (See Mot. at xxx.) No allegations-^demonstrate that Mr. Dean had knowledge of the terms in the agreement or whether he had an opportunity to see the terms prior to “accepting” them by accessing the website. See Hines v. Overstock.com, Inc., 380 Fed.Appx. 22, 24-25 (2d Cir. 2010) (unpublished) (concluding under New York and Utah law that Overstock did not demonstrate that an arbitration agreement was formed by a user’s accessing its website, which had arbitration terms, because Overstock did not allege any facts tending to show that a user had actual or constructive knowledge of the website’s terms and conditions). Moreover, the arbitration terms in the Online Access Agreement state that if its terms conflict with “any separate agreement governing your other Eligible Accounts,” those terms control. (See Nelson Decl., Ex. 17-B, p. 3.) Without testimony, the court cannot tell, which, if any, agreement controls.

Other older accounts (e.g., Lawrence and Kay Mitchell, Carina Rhea, David Self) suffer from a lack of signed account applications — usually where Wells Fargo provides notice of the arbitration agreement and obtains a consumer’s agreement thereto — or from a lack of detail about the dispute resolution program in effect at the time the accounts were opened. Excluding those Plaintiffs who signed more recent applications for newer accounts, Wells Fargo’s attempts to show these longstanding account holders later agreed to arbitration are not sufficient to establish arbitration agreements were formed as a matter of law.

For example, the Mitchells opened a checking account with Wells Fargo in 1982. (Nelson Decl. ¶ 122.) Wells Fargo presents no signed account application for this account, and thus the court cannot scrutinize what the Mitchells agreed to at the initial contracting. Lawrence Mitchell then signed up for online banking in 2005, and allegedly agreed to the terms therein, (see id. Ex. 37-A), but this line of argument suffers from the same notice and formation issues discussed above with the Online Access Agreement. The Mitchells were also sent Wells Fargo’s “Important Change in Terms Notice,” with the updated 2011 arbitration agreement laid out in two pages. (Id. at 37-E.) The Change in Terms Notice was apparently included in the December 2011 account statements. (See id. ¶ 125 (“With the December 2011 statements, Wells Fargo notified its consumer banking customers that the Consumer Account Agreement would be revised effective February 15, 2012.... The Change in Terms Notice was included as an insert with the account statement

But the Change in Terms Notice only begs more questions about notice and consent in this case: what material change in the arbitration agreement occurred in 2011 that caused Wells Fargo to send this notice to all customers? If it truly sent this notice to all customers, why does Wells Fargo only allege it was sent to six of the many consumer Plaintiffs (specifically, the Mitchells, Carina Rhea, David Self, Paul Fosbre, Anurag Sood, and Scott Westin)? Did Wells Fargo send a Change in Terms Notice in 2015, when the arbitration agreement terms were, at least arguably, materially altered again? What significance should the court place in Wells Fargo’s labeling this 2011 update an “important change” in arbitration terms? Should it constitute an alteration that required some new affirmative assent from the customer or consideration by Wells Fargo, or simply a modification for which assent by silence was sufficient? The Notice did not contain an opt-out period or request any response from the customer. Such questions must be explored and resolved before these Plaintiffs without signed account applications can be held to have affirmatively assented to an arbitration agreement with Wells Fargo. -

The conversion. Plaintiffs, did not have arbitration agreements with their banks prior to Wells Fargo’s acquisition of those banks and addition of arbitration agreements to the already-existing accounts. The addition of arbitration agreements appears to be at least a material alteration, see Restatement (Second) of Contracts § 286(2) (1981) (stating 'that “[a]n alteration is material if it would, if effective, vary any party’s legal relations with the maker of the alteration ....), if not an entirely new contract, see Rent-A-Ctr., 561 U.S. at 71, 130 S.Ct. 2772 (noting that arbitration agreements are “severable from the remainder of a contract” (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)). Thus, these Plaintiffs present material issues of fact about the alteration/separate contract: when Wells Fargo purportedly sent them the welcome letter and consumer disclosures, could Wells Fargo materially , alter the scope of the terms of these Plaintiffs’ accounts without some affirmative act of acceptance by these plaintiffs? What affirmative assent or consideration,.if any, supported the material alteration or additional contract? Although such issues can often be resolved as a matter of law, factual questions • remain around the conversion mailings and their receipt by the Plaintiffs, as well as the consideration Wells Fargo could be said to have given to these Plaintiffs after adding the contract to arbitrate to their accounts.

If, as the Supreme Court.has held, an arbitration agreement is.truly sev-erable from the remainder of .the contract, it follows that the agreement must be supported by an acceptance and consideration just like any other contract. “An acceptance must be clear, positive and unambiguous,” R.J. Daum Const. Co. v. Child, 122 Utah 194, 200, 247 P.2d 817, 820 (1952), and consideration may be'found “whenever a promisor receives a benefit or where [a] promisee suffers a detriment, however slight,” Gasser v. Horne, 557 P.2d 154, 155 (Utah 1976). Wells Fargo’s assertion that the conversion Plaintiffs’ continued use of their accounts is sufficient to show assent to the terms,, even assuming the conversion mailings were properly sent to and received by each of these Plaintiffs, falls flat in these circumstances, where the welcome letters do not mention new dispute resolution terms or provide an option to opt-out. Moreover, these Plaintiffs’ continued use does not address the issue of consideration. See 17 C.J.S. Contracts § 122 (2008) (“A promise to do, something one is already obligated to do is no consideration for, a contract and creates no new obligation.”). While the court can imagine some circumstances that provide consideration-for the agreement, none have'yet been presented.

Finally, the documents associated with the business account Plaintiffs present a dispute of fact over whether there was a meeting of minds regarding arbitration. In the Business Account Applications, which were the only documents these Plaintiffs signed, and potentially the only ones they received, the language above the signature line states that the signer is agreeing to an account agreement that '“includes the Arbitration Agreement under which any dispute between the Customer and the Bank relating to the Customer’s use of any Bank deposit account, product or service” will be resolved by arbitration. The Arbitration Agreement terms in the BAA, however, enact a much more expansive agreement than suggested by the Application, where disputes include “all claims, disputes, and controversies between or among you and the Bank ... arisihg out of or relating in any way to your account(s) and/or service(s), and their negotiation; execution, administration, modification, substitution, formation, inducement, enforcement, default, or termination.” The conflict between these provisions, even assuming the BAA was offered to and read by the consumer, would not leave the consumer with a definite understanding of the essential terms of the Arbitration Agreement, when one statement appears to limit the agreement to “the customer’s use” and the other captures all disputes “arising out of or relating in any way to” the customer’s accounts and sér-vices. Where the essential terms of a contract conflict, there can be no agreement. See Jones v. Mackey Price Thompson & Ostler, 2015 UT 60, ¶ 31, 355 P.3d 1000, 1009 (observing that “[i]n order to create a contract, the parties must have ‘a meeting of the minds on the integral features of an agreement.’ This meeting of the minds requires agreement on the essential terms of the contract” (quoting Prince, Yeates, 2004 UT 26, ¶ 13, 94 P.3d 179)); Ragab v. Howard, 841 F.3d 1134, 1137-88 (10th Cir. 2016) (holding that “the conflicting details in the multiple arbitration provisions indicate that there was no meeting of the minds with respect to arbitration”).

The conflict in. contract language may be the result of an oversight in drafting; nevertheless, the terms are ambiguous and do not support a meeting of the minds' on the agreement to arbitrate. Ambiguous language is construed against the drafter, particularly in the context of adhesion contracts. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (noting the “common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it”); Dumais, 299 F.3d at 1219 (construing ambiguities in arbitration contract against' the drafter and noting that “[t]he contract at issue is a form contract effectively written by American Golf without [plaintifffs input or any negotiation with her. The power American Golf enjoyed in constructing the [contract] in the manner it preferred justifiably includes the burden of the document’s shortcomings in each instance”); MacArthur v. San Juan Cty., 416 F.Supp.2d 1098, 1187 (D. Utah 2005) (noting that “the-Utah Supreme Court has enumerated several equitable doctrines that may .be applied to remedy over-reaching in the making of adhesion contracts, including the doctrines of estoppel, .waiver, unconscionability, breach of the implied duty of good faith and fair dealing, and the-rule that ambiguous language is to be resolved against the drafter”). Testimony will help resolve doubts about what the business account Plaintiffs understood in contracting with Wells Fargo and, thus, whether a meeting of minds on the arbitration agreement truly exists.

It bears repeating that “[m]ost contracts bind only those who bargain for them, and ‘the burden of proof for showing the parties’ mutual assent as to all material terms and conditions is on the party claiming that there is a contract.’ ” Bybee v. Abdulla, 2008 UT 35, ¶ 8, 189 P.3d 40, 43 (citations omitted). “Arbitration agreements are not exempt from this rule.” Id. “Arbitration is an alternative to judicial resolution of .disputes in which participation is voluntary. Thus, absent the presence of some intervening circumstance, a party cannot be compelled to surrender his right to seek a remedy or defend himself in court.” Id. The Utah Supreme Court acknowledges that even the “strong public policy favoring arbitration ... is insufficient, standing alone, to justify forcing an unwilling party to submi