“I am ecstatic, and it was amazing the way the industry as a whole just kind of rallied around and supported us when we made our decision not to settle,” he said.

However, numerous credit unions have indeed decided to settle, according to court documents. Often, it's a mathematical decision.

“The credit union has to make a business decision and do a cost-benefit analysis as to the cost of litigation, in comparison to what potentially is a settlement offer — and that's true not just for these lawsuits but potentially any type of litigation,” NAFCU EVP and General Counsel Carrie Hunt told CU Times. “That is unfortunately one of the biggest problems with these types of issues when there's a legal void and plaintiffs' attorneys see an opportunity and go to try to exploit that. Because in almost all cases it's going to be more cost-effective to settle.”

That decision usually involves consulting with insurers.

“It needs to be ultimately an economically rational decision,” CUNA Mutual Senior Risk Management Consultant Carlos Molina told CU Times. “We need to make sure that the time and effort, and funds that a credit union may invest in trying to fight this, are ultimately going to be the smartest decision for that institution.”

CUNA Mutual is actively defending over 30 cases across nine different states, he said.

“It's predatory — I think that's kind of a prevailing feeling in the industry about this, and we want to let them know, 'Hey, we're not low-hanging fruit. We're not an easy target here. We do want to push back.' I think you're starting to see that. You're starting to see that through the leagues. You're starting to see that through the trade associations. I think it's important that they fully understand it's all well and good to want to fight — but it's important to understand what type of fight you are getting into,” Molina said.

The work is far from cookie-cutter, he added. Different insurance products may cover different aspects of different kinds of litigation, and then of course there's the legal system to navigate.

“You can have a claim in the State of New York that is very specific, to, say, a state ADA regulation or website accessibility issue, and then you could have one in Texas that is very different. It really takes a lot of time and effort to work with that individual credit union and to understand the nature of the claim so we can really assist them going forward,” Molina explained.

In addition, the three lawsuits that judges recently tossed were all in the Eastern District of Virginia. But a win in one jurisdiction doesn't necessarily translate to wins in other jurisdictions.

“The higher the court and the more courts that agree on a certain issue, then of course it becomes a much stronger case,” Hunt noted.

“I'm certainly hopeful that we are on the right track, but there still is litigation I believe now across 21 states. We have a ways to go before I think we see a body of case law that is overwhelmingly going to be helpful,” she added.

Tony Black believes the tide may be turning now.

“I think [the plaintiff's lawyer] will pack his bags and leave Texas alone, and I would suspect he is probably going to switch industries altogether,” he said.

But Molina isn't so sure. Credit unions still need to be prepared, he warned.

“They need to make sure they're asking the right questions of their insurer and of their legal counsel, and they need to make sure that they're as educated to this issue as possible,” he said. “Because at this point I think we all understand it's not a matter of if you're going to get a demand letter. It's probably a matter of when.”