So we recently discovered that we have been charging NSF fees on ATM and debit card transactions for some customers without having the required written opt in document signed by the customer. Due to a glitch in our system, these customers were somehow opted in by default. How that happened is still being investigated. The problem has been resolved moving forward, but the issue is now what to do about the fees that have been collected without the required customer opt ins.

It has been suggested that we discuss this with our regulator to get feedback from them on what we should do. I obviously want to do the right thing while at the same time minimizing any adverse effects on the bank. It seems to me there is a potential regulatory penalty component and a potential civil liability component. As far as civil liability, is anyone aware of what the statute of limitations might be on potential customer claims? I have been told three years, but could not find any authority on this. In my internet research, I have also seen references to court cases where credit unions successfully invoked the statute of limitations on wrongful NSF fee claims, but I have not been able to find any specific cases.

Anyone have any suggestions or feedback on how I should approach this?

I believe the cases you are looking for are these:

Toth v. Scott Credit Union, Case No. 20-CV-00306-SPM - Casetext
https://casetext.com/case/toth-v-scott-credit-union

Schneider v. Credit Human Fed. Credit Union - Casetext
https://casetext.com/case/schneider-v-credit-human-fed-credit-union

Lewis Archer, et al. v. America's First Federal Credit Union, No. 19 ...
https://law.justia.com/cases/federal/appellate-courts/ca11/19-15182/19-15182-2021-02-01.html

Lloyd v. Navy Fed. Credit Union - Casetext
https://casetext.com/case/lloyd-v-navy-fed-credit-union-1

CASTILLO v. UNITED FEDERAL CREDIT UNION (2018) | FindLaw - FindLaw Caselaw
https://caselaw.findlaw.com/court/nv-supreme-court/1888090.html

You should probably be talking to your attorney as evidenced by the list of cases supplied by Randy. I know since as far back as 2018 that we were getting advised to update disclosures regarding overdraft and to consider incorporating an arbitration clause by the vendor handling our forms because of the potential for a class action lawsuit in this area.