Democratic Senator Dianne Feinstein announced that she and three other Democratic Senators have introduced a bill, the “Accountability for Wall Street Executives Act of 2017,” that would allow state attorneys general to issue investigative subpoenas to national banks in connection with suspected violations of state law.

The bill appears intended to overturn the U.S. Supreme Court’s 2009 decision in Cuomo v. Clearing House Association interpreting the National Bank Act (NBA) provision that bars state officials from exercising “visitorial powers” over national banks.  While the Supreme Court held in Cuomo that the filing of a civil lawsuit by a state AG against a national bank to enforce state law was not barred as the exercise of “visitorial powers,” it also held that the issuance of extra-judicial subpoenas by a state AG in connection with an investigation was barred.

The bill would amend the NBA (12 U.S.C. 484) to provide that, notwithstanding the limit on visitorial powers, “an attorney general (or other chief law enforcement officer) of a State may issue subpoenas or administer oversight and examination to national banks or officers of national banks upon reasonable cause to believe that the national bank or an officer of a national bank has failed to comply with applicable State laws.”

In attempting to further empower state AGs, the bill likely is a response to the concern of Democratic lawmakers that CFPB enforcement activity will significantly decrease under the Trump administration.  A group of Democratic state AGs recently sent a letter to President Trump in which they threatened to aggressively use their enforcement authority under federal and state law.

In addition to various federal consumer protection statutes that give direct enforcement authority to state AGs or regulators, Section 1042 of the Consumer Financial Protection Act authorizes state AGs and regulators to bring civil actions to enforce the provisions of the CFPA, most notably its prohibition of unfair, deceptive or abusive acts or practices.  A state AG or regulator, before filing a lawsuit using his or her Section 1042 authority, must notify the CFPB and Section 1042 allows the CFPB to intervene as a party and remove an action filed in state court to federal court.

On January 11, 2018, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar: Who Will Fill the Void Left Behind by the CFPB?  Click here to register.