Bank of America, N.A. v. McCann

Bank of America N.A.

Our attorneys, together with co-counsel McGuireWoods LLP, represented Bank of America in a federal court action seeking to prevent litigation against it in state court proceedings which, because they were initiated by purported private attorneys general, would impermissibly encroach on the visitorial powers over national banks that the NBA reserves to the OCC. Finding for Bank of America, the court held that the state court plaintiffs, who had sued Bank of America's corporate parent, Bank of America Corporation (BAC), pursuant to Florida's qui tam statute, could not join the bank as a defendant or otherwise subject the bank to discovery in their action against BAC. The decision was particularly important in clarifying the parameters of an exception in the NBA to the OCC's near-exclusive visitorial powers that permits "lawfully authorized State auditors and examiners" to examine a national bank's books and records if they have "reasonable cause" to believe the bank has violated a state escheat law. In the state court proceedings brought by the qui tam private attorneys general, the plaintiffs alleged that, as part of Bank of America's check-clearing processes, funds were retained that purportedly should have been escheated to the state. The federal court found, however, that because the qui tam plaintiffs were not "lawfully authorized State auditors [or] examiners," the NBA prohibited any such discovery. Although the qui tam plaintiffs vigorously argued that the federal court was prohibited from issuing the requested injunction by the Anti-Injunction Act and principles of federal abstention, the federal judge rejected those arguments and issued the relief requested by Bank of America. Bank of America, N.A. v. McCann, No. 4:06cv194-RH/WCS, 2006 WL 2398680 (N.D. Fla. Aug. 14, 2006).

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