In an order filed earlier this month, New Hampshire District Court Judge Joseph DiClerico, Jr. dismissed the plaintiff's claims that the credit union was unjustly enriched by its policy. The court also dismissed claims that the credit union violated the Electronic Funds Transfer Act, finding that the plaintiff waited too long to sue and that the statute of limitations of EFTA claims had lapsed.

"The first assessment of an overdraft fee in Walbridge's account, which occurred in March of 2016, triggered the one-year limitations period. The complaint was not filed until September of 2017, more than a year later. As a result, the claim was filed outside the limitations period," the judge wrote.

Still alive, however, are claims of breach of contract and failure to act in good faith, according to the order. Both of those claims revolve around a fundamental problem in many other overdraft class-action suits: unclear wording in the account and overdraft opt in agreements.

In the case against Northeast Credit Union, the court took issue with wording such as, "An overdraft occurs when you do not have enough money in your account to cover a transaction, but we pay it anyway," and "At its sole discretion, [Northeast] may honor items presented for payment or authorization against your account even if there are insufficient funds in your account."

"Northeast has not shown that the only reasonable meaning of 'enough money,' 'insufficient funds,' and 'nonsufficient funds' is the available balance," the court explained. "The Account Agreement and the Opt In Agreement could be reasonably understood to promise that overdraft fees would be charged only if a customer overdrew the actual balance in the account."

Another problem appeared to be that the credit union's opt-in agreement did not include examples or repeated references to the account agreement that linked overdrafts to available balances.

"The agreements here are long, twenty-four pages in total, and Northeast relies on scattered references to available funds while using other terms that it does not define," the court added. "The terms Northeast used, in the absence of clear definitions or explanations, could reasonably be understood to mean the actual balance, as other courts have found."

Although the court ultimately dismissed the EFTA allegations due to the statute of limitations, it showed little tolerance for the credit union's argument that it should get safe harbor because the wording in its account agreements was from a model form provided by regulators.

"Northeast suggests that it could not describe its overdraft policy differently because that is not allowed under Regulation E. Other courts have concluded that financial institutions are required by Regulation E to accurately describe their overdraft services and that additional explanation is allowed, if necessary, because an Opt In Agreement need only be substantially similar to Form A-9," it warned.