Litigation and Court Decisions

On February 14, 2024, the Minnesota Bankers Association and Lake Central Bank (the “Plaintiffs”) filed their memorandum in opposition to the Federal Deposit Insurance Corporation’s (FDIC) motion to dismiss their challenge to the FDIC’s supervisory guidance on NSF fees.

In June 2023, the Plaintiffs filed a complaint seeking declaratory and injunctive relief under the Administrative Procedures Act (APA) against defendants FDIC and Chairman Martin J.… Continue Reading

Several national and Texas banking and business trade groups have filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the final regulations (Final Rules) implementing the Community Reinvestment Act of 1977 (CRA) that were jointly adopted in October 2023 by the Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, and Federal Reserve Board (Agencies). … Continue Reading

The scope of national bank preemption is currently before the U.S. Supreme Court in Cantero v. Bank of America, N.A.  A New York statute requires the payment of interest on mortgage escrow accounts and the question before the Supreme Court is whether the National Bank Act (NBA) preempts application of the New York statute to national banks. … Continue Reading

Bank of America, N.A. has filed its merits brief in Cantero v. Bank of America, N.A., the case currently before the U.S. Supreme Court dealing with the scope of national bank preemption.  The petitioners must file their reply brief by February 16, 2024.  (The petitioners’ merits brief is available here.) … Continue Reading

We previously wrote about a Ninth Circuit appeal taken by Verizon Wireless, Inc. after a California district court judge held that its arbitration agreement, which required mass arbitration disputes to be resolved by multiple rounds of bellwether arbitrations, was substantively unconscionable because it effectively eliminated the claims of thousands of Verizon customers who were required to wait for up to 156 years for the bellwether arbitrations to conclude. … Continue Reading

On January 17, 2024, the U.S. Supreme Court heard oral argument in the two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  That decision established what became known as “Chevron deference,” which requires courts to accept an agency’s interpretation of federal law if indicated by the outcome of a two-step analysis set forth in the decision. … Continue Reading

On February 27, 2024, the U.S. Supreme Court will hear oral argument in Cantero v. Bank of America, N.A., a case involving the scope of preemption under the National Bank Act (NBA).  The question before the Court is whether the NBA preempts a New York statute requiring banks to pay interest on mortgage escrow accounts. … Continue Reading

The U.S. Supreme Court has scheduled oral argument for Tuesday, February 20, 2024 in Corner Post, Inc. v Board of Governors of the Federal Reserve System. The question that the Supreme Court will decide is when a right of action first accrues for an Administrative Procedure Act (APA) Section 702 challenge to a final rule issued by a federal agency—when the final rule is issued or when the rule first causes injury.… Continue Reading

This special podcast episode, hosted by Senior Counsel and former Consumer Financial Services Practice Leader Alan Kaplinsky, sets the stage for the upcoming oral argument in the two U.S. Supreme Court cases where the fate of Chevron deference hangs in the balance. This episode provides an essential roadmap for anyone who will listen to the oral argument or is following this critical challenge to this important doctrine.… Continue Reading

Revenue Based Finance Coalition (RBFC), a trade group whose members include non-banks that provide sales-based financing to businesses, filed a lawsuit last week against the CFPB in a Florida federal district court challenging the CFPB’s final small business lending rule implementing Section 1071 of Dodd-Frank.  The core argument made by RBFC is that because sales-based financing does not constitute “credit” within the meaning of the Equal Credit Opportunity Act (ECOA) and Regulation B, the CFPB did not have the authority to regulate sales-based financing as “credit” under the Rule.… Continue Reading