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SALT LAKE CITY-The U.S. District Court judge overseeing the Utah field of membership lawsuit brought against NCUA by the American Bankers Association has granted a motion to permit CUNA, NAFCU, and three affected credit unions to intervene on behalf of their regulator. In doing so, U.S. District Court for the District of Utah Judge David Kimball set a pre-trial conference date of Wednesday, November 12 at 9:30 a.m. “The purpose of that pretrial conference is to come to agreement upon a briefing schedule,” NAFCU Senior Vice President and General Counsel Bill Donovan explained. “It is possible that the judge will ultimately waive the pre-trial conference if all the lawyers in the case meet and confer with one another and come up with a single proposed briefing schedule for the court to consider.” CUNA General Counsel Eric Richard added that the judge will probably also decide at the conference or beforehand whether he will rule by summary judgment, based on briefs filed by both sides of the case, or if a full-fledged trial is necessary. The attorney said he believes that all interested parties are hopeful for a summary judgment, as has been historically the case in FOM suits. “The real purpose of a trial is to bring about the facts,” Richard said. In this case, he said, there is not much dispute of the facts except possibly the regional government authorities used for determining the approved area as a “community.” He explained that a trial is “phenomenally expensive” and time consuming for all parties involved, so it will likely be avoided in an administrative law case such as this. Richard said he felt the credit union side of the case could just as effectively present its case in a paper brief as it could in a courtroom. The only matter the judge is to determine is whether NCUA made a “reasonable conclusion” based on the administrative record. “The judge is not supposed to insert his own judgment,” he said. The ABA and the Utah Bankers Association did not oppose CUNA, NAFCU, the Utah League of Credit Unions, Tooele FCU, America First FCU, and Goldenwest FCU intervening in the case. Richard said that this is not unusual and is typically a professional courtesy, but opposing the motion could have also raised the suspicion of the judge about the bankers’ side of the case. As intervenors, CUNA, NAFCU, and the three credit unions become parties to the case, which gives them the right to appeal a negative decision. In filing the suit, the bankers are seeking to overturn the approval of NCUA for the three named credit unions’ FOMs, which has the potential to call into question other community charter conversions and expansions as well. After Tooele FCU was approved by the NCUA Board to serve a six-county area, the other two credit unions followed suit for the same geographic area. Under NCUA regulation, the subsequent expansions can be approved at the regional level. [email protected]

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