Many more credit unions are likely to get hit with similar suits soon, according to Michael Bell, an attorney at Howard & Howard in Royal Oak, Mich.

“This I absolutely believe is the tip of the iceberg; I expect it to run its course in the next year or two, and I expect it to envelop 100 more credit unions,” he told CU Times.

Bell's firm represents the Parchment, Mich.-based Advia Credit Union and the St. Joseph, Mich.-based United Federal Credit Union – both of which are also being sued by people with claims similar to Fry's. Advia, which has $1.1 billion in assets and 119,000 members, was sued on Nov. 19; the complaint against $2 billion United, which has 141,000 members, was filed on Sept. 21.

A review of the 12 suits brought before federal courts since September shows that the same two firms – the Redlands, Calif.-based McCune Wright and the Santa Monica, Calif.-based The Kick Law Firm – represent all the plaintiffs. Law firms in the plaintiffs' home states are also involved, according to the complaints. McCune Wright and Kick Law Firm did not respond to requests for comment.

The 12 are just the latest in a stream of overdraft suits against credit unions that began in June of 2013, according to Stuart Richter, a Los Angeles-based partner at Katten Muchin Rosenman, which represents several of the defendants.

Those cases largely began in state court, he said. Then in 2015, plaintiffs started filing claims alleging credit unions' overdraft practices violated Regulation E.

“We started removing those cases to federal court,” he said. “That's when they started filing them across the country.”

Richter also said that about four years ago, a series of overdraft suits alleged credit unions were resequencing withdrawals to maximize overdraft fees.

“Those lawyers found out pretty quickly that credit unions don't resequence transactions,” he noted. “Shortly after those cases were all dismissed, you started to see McCune Wright file these cases on a different theory. The theory they're alleging now is that because the credit union charges based on the available balance, that that's misleading to the member.”

Bell said he doesn't know if there's a method behind the timing or nature of credit unions involved in the 12 class-action suits, but he did note a correlation with regulators.

“If you watch the CFPB and what they do, they highlight an issue and if you watch, shortly thereafter all the big banks get sued on that issue,” he said. “Shortly thereafter, all the credit unions get sued on that issue. They bring up a point: 'Boy, this doesn't seem fair. We don't like this.' Then you just watch, and it just works its way through the chain.”

Bell added, “I think what makes you a target on a very basic level is, number one, you're a credit union. Number two, you have overdraft products.”

The bigger the asset size, the bigger the member base and the bigger the risk, he added.

Richter also sees credit unions' vulnerability.

“I would say that just about every credit union that I've represented, and there's probably 20 of them so far in these cases, they process the debit card transactions the way that McCune alleges they do,” he said. “I'm not saying that's wrong. I think there's nothing wrong with it, but that's the allegation.”

So what should credit unions do?

“One thing you should absolutely do is take a look at your overdraft program and disclosures and make sure you've got it correct. You absolutely should do that; there's no question,” Bell said.

Richter added, “What they don't allege in these cases is that the credit unions are doing anything improper. What they allege basically is that the disclosures are misleading, that people think that they're getting charged overdraft fees based on the amount of money in their account and that should be the actual balance as opposed to the available balance.”

Credit unions should also respond quickly and aggressively if they're hit with a suit, the attorneys said.

“The quicker and more promptly you move, really the more money and time you can save,” Bell said. “Things don't get better with time, they get worse.”

But be prepared to spend $10,000 on a defense – and maybe much more, he said.

“Does it rise to the level of $100,000? Well, that depends,” he said. “Obviously, if you go to trial, it certainly does. If there are 700 plaintiffs in the class, you're talking hundreds of thousands of bucks. It's not cheap.”

On Nov. 30, McCune Wright, Kick Law Firm and Brandt Law filed a request to have 11 cases consolidated and heard in an Illinois District Court. In the meantime, more suits are rolling in. Another claim has already been filed in Georgia, Richter said.

Bell said his firm has sent warnings to more than 100 clients, alerting them they could be next.

Instant Insights /

12 Credit Unions Face Overdraft Suits

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