Bank One, Delaware, N.A. v. Wilens, Wilens v. Bank One Corporation, et al., and Armanini v. Bank One, Delaware, N.A

Bank One

Our attorneys litigated, on behalf of Bank One, Delaware, N.A., a series of cases that originated as a state court action against the parent holding company of Bank One in which the plaintiff "private attorney general" (Wilens) sought to use California's wide-ranging unfair competition law, Cal. Bus. & Prof. Code § 17200 et seq., to enforce the disclosure requirements of a California "convenience check" statute, Cal. Civil Code § 1748.9, against the bank. Wilens v. Bank One Corporation, et al., Orange County Superior Court, No. 02CC17606. Anticipating that the bank itself would soon be named in the state suit, Arnold & Porter commenced a new action in federal court, Bank One, Delaware, N.A. v. Wilens, United States District Court, Central District of California, No. SACV 03-272 JVS, seeking a declaratory judgment that "private attorneys general" may not enforce laws regulating the lending activities of national banks, because the exclusive power to enforce such laws has been committed by Congress to the OCC under the "visitorial powers" provision of the NBA. The suit also sought injunctive relief from the federal court against the continued prosecution of the state court case. When the federal court rejected Wilen's motion to dismiss and granted summary judgment for the bank, Wilens' counsel, acting on behalf of a newly named plaintiff, Matt Armanini, commenced another, similar action but styled as a consumer class action rather than a "private attorney general" action. The bank presented a substantive preemption defense, moving for summary judgment based on the OCC's preemption regulations and the underlying NBA case law. Ultimately, the state court granted summary judgment in favor of the bank and found that the statute was preempted. Armanini v. Bank One, Delaware, N.A., Orange County Superior Court, No. 03 CC 00255 (Feb. 3, 2005). These rulings stake out a clear basis for future pro-active litigation by national banks in response to suits brought by private parties seeking to enforce state laws, including consumer protection and disclosure laws, limiting any of the federally authorized powers of national banks.

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