CUNA said Thursday it is urging a West Coast federal appealscourt to uphold a lower court decision defining how credit unionsand ATM vendors qualify for immunity from liability for missing “fee decals” and the lawsuits they have spawned.

In the “friend of the court” brief filed in the U.S. Court ofAppeals for the Ninth Circuit in San Francisco, CUNA argued thatthe court should uphold that “ATM operators are not required toestablish the identity of the vandal or third party that removes anaffixed fee decal in order to establish immunity from civilliability under the safe harbor defense” under federal law.

CUNA said that adoption of this standard would mean, in effect,“that missing stickers are presumed to be the work of vandals forwhich credit unions will not be held liable.” Doing so wouldrecognize that ATMs are remote, unmanned, and often beyond anypracticable means of surveillance.

Further, the trade association argued that – as found by thelower court – the appeals court should affirm that good faithcompliance “should be measured by a standard of reasonablenessunder the circumstances applicable to the particular ATM and itsoperator.”

Doing so recognizes that a one-size-fits-all solution does notaddress the realities of a diverse, decentralized ATM industrywhose financial institutions and other members endeavor in goodfaith to comply with the EFTA and Regulation E, CUNA argued.

Under this approach, CUNA said smaller institutions, with theirlimited staff, would not be held to an unreasonably high standardconcerning the monitoring of their machines.

“Our filing in this case is of critical interest to creditunions facing numerous lawsuits over ATM signage,” said GeneralCounsel and Executive Vice President Eric Richard. “Just as CUNAseeks results for credit unions in Congress and with regulators, welook for effective opportunities to seek protections in thecourts.”