FINANCIAL SERVICES PREEMPTION LITIGATION

We have played a prominent role in much of the most significant federal banking litigation of the past three decades. For a number of years, Arnold & Porter LLP has been actively involved in challenging, on grounds of federal preemption, state and local efforts to supervise and regulate activities of federally chartered financial institutions. The firm in recent years has developed considerable experience in representing national banks and federal savings banks in a series of cases involving preemption of state law by the National Bank Act (NBA) and the Home Owners' Loan Act (HOLA). In a series of cases, the Arnold & Porter team, including lawyers from the firm's Washington, DC, New York, and Los Angeles offices, has achieved major victories for national banks, savings and loan institutions, and credit unions threatened with overreaching state and local actions. With a growing number of states and localities seeking to control financial institutions' activities, these issues have become increasingly important to financial institutions nationwide.

Examples of the cases in which we have recently achieved federal banking law preemption victories include: 

• State Farm Bank, F.S.B. v. Reardon, 539 F.3d 336 (6th Cir. 2008) (obtained declaratory and injunctive relief from enforcement of Ohio's mortgage-broker licensing laws against agents of federal savings bank)
• Rose v. Chase Bank USA, N.A., 513 F. 3d 1032 (9th Cir. 2008), aff'g 396 F. Supp. 2d 1116 (C.D. Cal. 2005) (obtained dismissal of class action complaint alleging violation of state statutory disclosure requirements for access checks and unfair and deceptive practices)
• Consumers Against Unfair Business Practices (Miller) v. Bank of Am., N.A. (USA), 170 Cal. App. 4th 980 (2009) (obtained dismissal of class action complaint alleging national bank's collection of finance charges and late fees when credit card payment date fell on weekend or holiday violated state "holiday" statutes and constituted unlawful, unfair and deceptive practices)
• Augustine v. FIA Card Servs., N.A., 485 F. Supp. 2d (E.D. Cal. 2007), appeal docketed (9th Cir. No. 07-16751) (obtained dismissal of class action complaint alleging violation state unfair and deceptive practices in that national bank failed to give notice to borrower before raising credit card interest rate due to borrower default)
• Montgomery v. Bank of America Corp., 515 F. Supp. 2d 1106 (C.D. Cal. 2007) (obtained dismissal of class action complaint alleging unfair and deceptive trade practices based upon the amount of a national bank's insufficient funds fees and the manner in which the fee amount was disclosed to customers)
• State Farm Bank, F.S.B. v. Burke, 445 F. Supp. 2d 207 (D. Conn. 2006) (obtained injunctive and declaratory relief from enforcement of state mortgage broker licensing laws against agents of a federal savings bank)
• Silvas v. E*Trade Mortgage Corp., 421 F. Supp. 2d 1315 (S.D. Cal. 2006) (obtained dismissal of complaint alleging violations of Truth in Lending Act and state unfair and deceptive practices laws), aff'd 514 F.3d 1001 (9th Cir. 2008)
• Bank of Am., N.A. v. McCann, 444 F. Supp. 2d 1227 (N.D. Fla. 2006) (obtained injunctive relief under the visitorial powers provision of the National Bank Act preventing state court lawsuit by qui tam plaintiffs alleging violation of state escheat laws)
• Am. Bankers Ass'n v. Lockyer, 239 F. Supp. 2d 1000 (E.D. Cal. 2002) (obtained summary judgment declaring that state disclosure statute requiring minimum payment disclosures was preempted)
• Parks v. MBNA America Bank, N.A., et al., Orange Superior Court, Case No. 04CC00598 (June 17, 2008) (obtained judgment on the pleadings for national bank in class action alleging violation of state disclosure statute), appeal docketed (Fourth App. Dist., Div. Three, No. G040798)
• Bank One Del., N.A. v. Wilens, 2003 WL 21703629 (C.D. Cal. July 7, 2003) (obtained injunctive relief barring state court suit alleging violations of state disclosure and unfair and deceptive practices laws)
• Armanini v. Bank One, Del., N.A., Orange County Super. Ct., No. 03 CC 00255 (Feb. 3, 2005) (obtained summary judgment for national bank in class action alleging violation of state access check disclosure requirements and unlawful, unfair, and deceptive practices). We also recently achieved a grant of review by the New York Court of Appeals of Spitzer v. Applied Card Systems, 7 A.D.3d 104 (NY 2005), in order that we may appeal our Truth in Lending Act preemption defenses.

In addition, we have filed amicus briefs on behalf of the banking industry arguing federal banking law preemption in numerous cases, including: 

• Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007) (NBA preemption)
• The Clearing House Assn., L.L.C. v. Spitzer, 510 F.3d 105 (2d Cir. 2007) (visitorial powers), aff'g in part, 394 F. Supp. 2d 620 (S.D.N.Y. 2005), and Office of the Comptroller of the Currency v. Spitzer, 396 F. Supp. 2d 383 (S.D.N.Y 2005), cert. granted (January 16, 2009 No. 08-453).
• Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008) (NBA preemption), aff'g 2006 WL 2331075 (D. Conn. 2006).
• Miller v. Bank of Am. N.T. & S.A., 51 Cal. Rptr. 3d 223 (Cal. Ct. App. 2006) (NBA preemption), review granted (March 21, 2007 No. S149178).
• Am. Fin. Servs. Ass'n v. City of Oakland, 34 Cal. 4th 1239 (2005) (NBA and HOLA preemption)
• Am. Bankers Assn. v. Gould , 412 F.3d 1081 (9th Cir. 2005) (Fair Credit Reporting Act preemption)

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