As I have said before, given the explosion of class-action lawsuits involving credit unions over the last 15 years, any growing credit union should consider whether to put an arbitration clause into its account agreements. Properly crafted and disclosed to their members, an arbitration clause can eliminate the risk and expense of being subjected to a potentially expensive class-action lawsuit while continuing to provide legitimately aggrieved members a mechanism for addressing their concerns with the credit union. The good news is that, as more and more credit unions join banks in adopting these clauses, the clearer the rules of the road – which brings me to the inspiration for this column.

On Thursday, a state appeals court in Colorado reversed a lower court ruling and upheld the imposition of an arbitration clause against a member who was seeking to bring a class-action lawsuit. The case I am talking about is Macasero vs. ENT Credit Union (Macasero v. ENT Credit Union :: 2023 :: Colorado Court of Appeals Decisions :: Colorado Case Law :: Colorado Law :: US Law :: Justia). In 2014, Cecilia Macasero became a member of the credit union to get a car loan. When she became a member, she agreed to accept electronic disclosures. In 2014, the account agreement she signed did not contain an arbitration clause but did include a provision explaining to members that the agreement's terms "are subject to change at any time at the discretion of ENT." The notice went on to explain that members would be notified of any change in terms "by utilizing your account and related services you agree to amendments of the terms of this agreement, which have been made available to you …" In 2019, the credit union updated its account agreement to include arbitration and a class action waiver. The credit union notified members by mail or email, depending on how they agreed to receive information, but both groups were put on notice in their bank statements. Our plaintiff conceded that she had received the email notification, but she said she didn't know of the changes because she didn't bother opening the email.