Financial Institutions

Howard Cayne counsels financial and other institutions on a broad range of regulatory, compliance, and transactional issues. Mr. Cayne has also litigated many significant enforcement, supervisory, and liability issues facing institutions, and their officers and directors. He has played a prominent role in much of the most significant federal banking litigation of the past three decades, and served as trial counsel in a number of cases resulting in hundreds of millions of dollars in total judgments against the United States. Currently, Mr. Cayne is actively involved in challenging, on grounds of federal preemption, state and local efforts to supervise and regulate activities of federally chartered financial institutions. Together with other members of the firm's preemption litigation team, he has achieved a number of important victories for federally chartered banks, savings institutions, and credit unions threatened with overreaching state and local actions.

Mr. Cayne is actively involved in the firm's representation of the Federal Housing Finance Agency (FHFA) as Conservator in a broad range of litigation in multiple state and federal courts throughout the nation.

Other representative matters handled by Mr. Cayne include the Winstar breach of contract litigations against the United States government. In addition, Mr. Cayne has successfully handled the litigation and settlement of major class and derivative actions against large financial institutions. Mr. Cayne also represents plaintiff utilities in prosecuting claims against the federal government arising out of the United States' failure to perform its contractual obligations to remove spent nuclear fuel stored at commercial nuclear power plants and dispose of it in accordance with the Nuclear Waste Policy Act of 1982.

Before joining Arnold & Porter LLP in 1984, Mr. Cayne served as a senior attorney in the Enforcement and Compliance Division of the Comptroller of the Currency. In addition, he has served on the adjunct faculty teaching Banking Law Enforcement at the Boston University.

Financial Institutions Representative Matters

• National Association of Mortgage Brokers v. Federal Housing Finance Agency, D.D.C., Civil Action No. 09-00356; In re Federal National Mortgage Association Securities, Derivative, and ERISA Litigation, __ F.Supp.2d __, 2009 WL 1837757 (D.D.C. June 25, 2009). Successful defense of the FHFA in a challenge to its adoption, on behalf of the enterprises, of a new Home Valuation Code of Conduct, which an association of mortgage brokers had alleged to be improper agency rule-making.
• Esther Sadowsky Testamentary Trust v. Syron, No. 09-2409-CV (2d Cir. Mar. 10, 2010). Prevailed on an appeal of a successful motion to substitute the FHFA for derivative plaintiffs bringing an action on behalf of Freddie Mac.
• In re Federal Home Loan Mortgage Corporation Derivative Litigation, Case No. 1:08cv773, (EDVA, July 27, 2009). Obtained several motions to substitute FHFA for derivative plaintiffs bringing claims on behalf of the entities against former officers and directors and third parties.
• Miller v. Bank of America, N.A. (U.S.A.)(January 28, 2009) The California Court of Appeal affirmed on federal preemption grounds the trial court's judgment in favor of Bank of America, N.A. (U.S.A.), now known as FIA Card Services, N.A. The decision is the first published California state appellate decision in recent history to find a state law preempted as applied to national banks.
• Sacramento Municipal Utility District v. United States, 2009 WL 5197845 (Fed. Cl. Dec. 30, 2009). Obtained a US$53 million judgment against the United States for breach of its contract with the utility for disposal of nuclear waste.
• Pacific National Bank, N.A. v. State of Connecticut, No. 06-4149, -- F.3d --, 2nd Cir. (2008). (amicus) Connecticut law as applied to activities undertaken by national banks through third parties invalidated on grounds of federal preemption.
• State Farm Bank, F.S.B. v. Reardon, 539 F.3d 36, 6th Cir. (2008). Ohio mortgage licensing law as applied to exclusive agents of federally chartered savings and loan associations invalidated on grounds of federal preemption.
• Rose v. Chase Bank USA, N.A., 513 F.3d 1032, 9th Cir. (2008). State disclosure statute invalidated on ground of federal preemption and establishing the principle that evidentiary showing of burden is not necessary to a finding of preemption.
• Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007). Represented American Bankers Association and other industry groups as amici in the Supreme Court case holding National Bank Act preemption extends to "operating subsidiaries."
• Old Stone Corp. v. US, 450 F.3d 1360, Fed. Cir. (2006). Obtained US$74.5 million damages judgment against the United States for breach of contract.
• Bank of America, N.A. v. McCann, 444 F. Supp. 2d 1227 (N.D. Fla. 2006). Obtained federal court injunction against continuation of Florida state court Qui Tam action.
• Centex Corp. v. US, 395 F.3d 1283 (2005). Obtained US$28 million judgment against the United States for breach of contact.
• Globe Savings Bank, F.S.B v. US, 65 Fed.Cl. 330 (2005). Obtained US$33 million judgment against the United States for breach of contract.
• Am. Fin. Services Ass'n v. City of Oakland, 34 Cal. 4th 1239 (2005). Represented industry trade groups as amici in successful state law preemption challenge invalidating a "predatory lending" ordinance adopted by the City of Oakland, California.
• Beneficial Nat. Bank v. Anderson, 539 US 1, 123 S.Ct. 2058 (2003). Landmark Supreme Court decision authorizing removal of certain National Bank Act cases from state to federal court.
• Am. Bankers Ass'n v. Lockyer, 239 F. Supp. 2d 1000 (E.D. Cal. 2002). Enforcement of California minimum payment statute permanently enjoined on grounds of federal preemption.
• In re Consolidated Pinnacle West Securities Litigation/Resolution Trust Corporation-Merabank Litigation, 51 F.3d 194. Affirmed broad bar order against indemnity and contribution claims issued in connection with approval of class action settlement.
• del Junco v. Conover, 682 F.2d 1338, 9th Cir. (1982). Leading case on authority of federal bank regulators to impose individual monetary director liability.