Despite a string of recent legal victories, bankers are unlikely to score a knockout blow against occupation-based credit unions.
Legal experts said they do not expect U.S. District Judge Thomas P. Jackson to expand upon his Oct. 25 order preventing 3,586 occupation-based credit unions from adding new customers who don't share a common bond with the core membership.
But the American Bankers Association is expected to ask him at a Dec. 4 hearing to force these credit unions to expel members who are not connected to the original sponsor. If Judge Jackson agrees, institutions like AT&T Family Federal Credit Union in Winston-Salem, N.C., could serve only employees of its sponsoring company. For AT&T, that would mean the credit union would have to drop the more than 140 other companies that it serves.
(Separately, Judge Jackson canceled a hearing set for today to discuss the case. The National Credit Union Administration has asked him to stay his Oct. 25 order while the agency appeals it.)
Credit union and banking industry lawyers said many hurdles block banks from getting their desired relief. These include a cumbersome legal process, an expired deadline for filing challenges, and an unwillingness of judges to act while the Supreme Court is considering a case.
"There are a lot of significant problems that should give the courts cause for concern," said Brenda S. Furlow, acting general counsel to the Credit Union National Association.
First, Ms. Furlow and other lawyers said, the judge could reject the ABA's request if he believes the damage to credit unions from divestitures would outweigh the harm to banks from maintaining the status quo.
"When the court is looking at a drastic action like divestitures, it must look at the equity of the action," Ms. Furlow said. "That is why we don't believe a nationwide divestiture will occur. The harm suffered by the banks is much less than the harm suffered by the credit unions and their customers."
Even Michael F. Crotty, the ABA's deputy general counsel, agreed that this issue could become a stumbling block. "These are legitimate considerations that the court will engage in," he said. "It is fair to raise the equity issue."
Ms. Furlow added that bankers would likely have to prove their case on a credit union by credit union basis, a process that could take years.
"To have a nationwide divestiture order is almost unimaginable," Ms. Furlow said. "You have to look at each credit union and see what it would have to divest."
Second, lawyers said there is a six-year statute of limitations for challenging field-of-membership expansions. This should protect members at many institutions.
Finally, lawyers said, the judge is unlikely to act until the Supreme Court considers the case. Most observers expect the solicitor general to file an appeal this month. The justices are likely to either accept or reject the case in early January. If they take the case, they are expected to hear oral arguments in April and issue a decision at the end of June.
That means the earliest Judge Jackson would be able to act would be in late January. But even that target is a bit optimistic because a similar case challenging an occupation-based credit union is now working its way through the U.S. Court of Appeals for the Sixth Circuit. That case could reach the Supreme Court late next spring, giving Judge Jackson another reason to delay any decision on divestitures.
"Clearly in light of the fact that we are going to the Supreme Court and the strong likelihood that the Supreme Court will take it works in our favor," Ms. Furlow said.
Still, the banking industry does not appear deterred. Mr. Crotty said the credit union industry may raise numerous objections. But he predicted victory in the end.
"They have been stealing our customers for 14 years and making lots of money," he said. "Is it fair and equitable for them to keep doing it now that the court has ruled it illegal?"