• Financial Regulatory Reform - The Future of Federal Preemption
  • May 13, 2010
  • Law Firm: Sonnenschein Nath & Rosenthal LLP - Chicago Office
  • On March 15, 2010, Senate Banking Committee Chairman Christopher Dodd (D-CT) released a revised draft of financial regulatory reform legislation, the Restoring American Financial Stability Act. The Dodd bill has now been introduced as S. 3217 and an amended version was offered by Majority Leader Harry Reid (D-NV) on behalf of Chairman Dodd and Agriculture Committee Chairman Blanche Lincoln (D-AR) when Senate debate on S. 3217 began on April 29, 2010 (the "Revised Dodd Bill").  Amendments to the Revised Dodd Bill are now being debated and, in some cases, voted on.  Over 175 amendments have already been filed.  The Senate's consideration of financial regulatory reform legislation follows the passage by the House of Representatives on December 11, 2009 of its version of financial regulatory reform, H.R. 4173, the Wall Street Reform and Consumer Protection Act.

    This is one in a series of alerts that will discuss the details of the proposed legislation and the potential impact it may have on the financial services industry, if adopted in substantially its current form.  This alert focuses specifically on how the latest efforts at regulatory reform by both the Senate and House of Representatives have attempted to address the issue of federal preemption of state consumer protection laws by national banks and federal savings associations.  The establishment of the Financial Stability Oversight Council and its implications for the "Too Big to Fail" doctrine and the impact of potential restrictions on proprietary trading under the "Volcker Rule" will be discussed in separate alerts.  The effects of the Revised Dodd Bill and H.R. 4173 on federal thrifts and bank holding companies and savings and loan holding companies, as compared to the potential effects under the House-passed H.R. 4173, were discussed in previous alerts.

    A. History

    The Supreme Court has enunciated three grounds pursuant to which state law can be preempted by federal law.  First, Congress, acting within constitutional limits, may expressly provide that state laws on a particular subject are preempted (i.e., "express preemption").  Second, a Congressional intent to preempt state law in a particular area entirely may be inferred where the scheme of federal regulation is so comprehensive as to lead to the inference that Congress left no room for state regulation (i.e., "field preemption").  Third, even where federal law has not completely displaced state law in a particular area, state law is preempted to the extent that it actually conflicts with federal law (i.e., "conflict preemption").

    In recent years, affirmative actions by each of the regulatory agencies that primarily regulate national banks and federal savings associations, the Office of the Comptroller of the Currency ("OCC") and the Office of Thrift Supervision ("OTS"), respectively, reduced the applicability and enforceability of state consumer protection laws.  The OCC, in particular, has expanded directly the preemptive powers of national banks under the National Bank Act to a similar extent as those granted to federal savings associations under the Home Owners' Loan Act ("HOLA").  The HOLA has traditionally been viewed as granting broader preemptive powers to federal savings associations than are granted to national banks under the National Bank Act, because section 5(a) of HOLA has been viewed as granting "field preemption" to federal savings associations whereas there is no similar provision in the National Bank Act.  The expansion of preemptive powers of national banks has been supported by both Congress and the Supreme Court.

    • The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 ("Riegle-Neal") permitted national banks to branch across state lines, and the OCC has aggressively interpreted what is permitted to be exported as "interest" under Section 85 of the National Bank Act,1 which interpretations were then accorded Chevron2 deference by the Supreme Court.
    • In 1996, in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner,3 the Supreme Court ruled that a 1916 federal law preempted a state insurance law which prohibited national banks from selling insurance in certain small towns in Florida.  Using the principles of conflict preemption, the Court found that the state insurance law significantly interfered with a national bank's exercise of its powers and was therefore preempted.  The OCC interpreted Barnett to require that consumer protection statutes be preempted on a case-by-case basis and to mean that the Supreme Court had adopted conflict preemption as the appropriate standard for preemption questions involving national bank laws.  The OCC also regarded Barnett as specifically setting forth certain tests that would make it easier for the OCC to persuade courts to preempt state law.  As a result, the Barnett standard, along with the OCC's interpretation, became the basis for the expansion of federal preemption of state law applicable to national banks for over a decade.
    • In 2004, the OCC justified the promulgation of preemption regulations (the "Preemption Rule")4 which preempted all state laws that obstructed or impaired the ability of a national bank to fully exercise its federally granted powers, by arguing that it was simply a distillation of the conflict preemption standards which were articulated by the Supreme Court in Barnett as well as other cases.  The Preemption Rule sets forth a list of specific types of state laws which the OCC asserted were preempted by federal law, such as state laws concerning licensing, credit terms and loan disclosures.  In conjunction with the Preemption Rule, the OCC also issued a Visitorial Rights Rule, which asserted that only the OCC has the power to exercise visitorial powers (i.e., to conduct examinations, inspect records, etc.) upon national banks.
    • The OCC's broad expansion of a national bank's preemptive powers over state law was then ratified by the Supreme Court in 2007 in Watters v. Wachovia Bank, N.A.,5 in which the Court held that subsidiaries of national banks were entitled to the same preemptive powers as national banks themselves.  Even prior to the Watters decision, the OCC had interpreted its laws to provide the same federal preemption to operating subsidiaries of national banks as the parent banks themselves.  Watters effectively signaled the complete preemption of state consumer protection laws for national banks and their subsidiaries.
    • In 2009, in Cuomo v. Clearing House Association, L.L.C., the Supreme Court held that, under the National Bank Act, the federal government's exclusive visitorial power over national banks is limited to the right to oversee corporate affairs, such as inspecting books and records, and does not include the exclusive right to enforce the law.6  This decision halted, at least temporarily, the expansion of federal preemption which had been ongoing since the passage of Riegle-Neal and the Barnett decision.

    Both the Revised Dodd Bill and H.R. 4173 contain provisions which would significantly roll back the powers of both national banks and federal savings associations to preempt state law in specific areas, under the preemption doctrine known as "field preemption" (i.e., a Watters standard).  Instead, both bills attempt to restore the Barnett standard, which would require national banks and federal savings associations to preempt state consumer protection statutes on a case-by-case basis, rather than by a blanket rule.  We discuss the approaches to preemption in the Revised Dodd Bill and H.R. 4173 below.

    B. The Senate Approach

    1. Roll Back to the Barnett Standard

    The Revised Dodd Bill explicitly endorses a return to the Barnett standard.  Section 1044 of the Revised Dodd Bill adds a new section to the National Bank Act and provides that state "consumer financial laws" are preempted only if, among other things,7 a court or the OCC, by regulation or order, makes a determination of preemption on a "case-by-case" basis in accordance with the legal standard set forth in Barnett.  The Revised Dodd Bill defines the term "case-by-case" to be a determination made by the OCC concerning the impact of a particular state consumer financial law on a national bank that is subject to that law, or the law of any other state with substantively equivalent terms.  Further, the Revised Dodd Bill provides that if the OCC makes a determination that another state's consumer financial law has substantively equivalent terms as the law that the OCC is preempting, the OCC must first consult with the newly proposed-to-be-created "Bureau of Consumer Financial Protection" ("CFPB") and take the views of the CFPB into account when making the determination.

    The Revised Dodd Bill directs any court that is reviewing any of the OCC's determinations regarding preemption of state law to assess the validity of the determinations by looking at the thoroughness evident in the OCC's consideration, the validity of the OCC's reasoning, consistency with other valid determinations made by the OCC and other factors which the court finds persuasive and relevant to its decision.  Significantly, the Revised Dodd Bill states that no regulation or order of the OCC may be interpreted or applied so as to invalidate, or otherwise declare inapplicable to a national bank, a provision of a state consumer financial law unless there is substantial evidence that the state provision prevents, significantly interferes with, or materially impairs the ability of a national bank to engage in the business of banking.  Further, the Revised Dodd Bill states that the OCC may not prescribe a regulation or order preempting state law unless the OCC, in consultation with the CFPB, makes a finding that a federal law provides a substantive standard that is applicable to a national bank which regulates the particular conduct, activity or authority that is subject to such provision of the state consumer financial law.  The Revised Dodd Bill requires the OCC to periodically conduct a review of each such determination of preemption at least once every five years and announce its decision to continue or rescind the determination or a proposal to amend the determination as well as make a report to Congress at that time.

    2. Repeal of Watters and Applicability of Preemption to Operating Subsidiaries

    The Revised Dodd Bill effectively reverses the holding in Watters, and provides that subsidiaries and affiliates of national banks will no longer enjoy the same preemptive rights as national banks.  Instead, the Revised Dodd Bill states that a state consumer financial law will apply to a subsidiary or affiliate of a national bank to the same extent that the law would apply to any person, corporation or other entity under state law.  This provision would significantly impair the freedom from state regulations that operating subsidiaries of national banks current enjoy in making different types of consumer loan products, including residential mortgage loans.

    3. Rate Exportation Not Addressed

    One area of federal preemption that the Revised Dodd Bill does not affect, however, is the ability of national banks to charge interest at the rate allowed by the laws of the state where the bank is located, thereby preserving the "most favored lender" doctrine.  Under that doctrine, a national bank located in a particular state may charge "interest" at the maximum rate permitted to any state-chartered or licensed lending institution by the law of that state, i.e., the "most favored lender."  It is unclear how this may affect the related doctrine of "rate exportation" under which national banks may "export" the interest rate of the state in which they are located to the other states in which the banks operate, thereby providing preemption of the other state's interest and usury statutes as well as other statutes that may be affected by the definition of "interest."  This is important because the OCC, as well as the OTS, have defined "interest" to include not only interest on the loan, but a host of other fees such as late charges and non-sufficient funds fees.  As a result, if "rate exportation" is permitted to continue, this may undermine the Revised Dodd Bill's attempt to make state consumer financial laws apply to national banks as this would de facto preempt those state consumer financial laws that apply to such fees.

    4. Target on Thrifts

    With respect to federal savings associations, the Revised Dodd Bill adds a new section to the HOLA which likewise requires the OTS (and the OCC as its successor agency) and any court to make federal preemption determinations in accordance with the laws and legal standards applicable to national banks regarding the preemption of state law.  Further, the Revised Dodd Bill specifically states that, "[n]otwithstanding the authorities granted under section 4 and 5, [the HOLA] does not occupy the field in any area of State law." (Emphasis added).  The language is significant because the broad field preemption authority that federal savings associations have enjoyed in the past derives directly from section 5(a) of the HOLA.  Accordingly, this provision is a "game changer" for thrifts, consistent with the overall effect of the Revised Dodd Bill to gradually eliminate the thrift charter.

    5. Visitorial Powers v. Enforcement Authority

    The Revised Dodd Bill specifically provides that no provision of the National Bank Act or the HOLA may be construed as limiting or restricting the authority of any attorney general (or other chief law enforcement officer) of any state to bring any action to: (i) enforce any provision of federal or state law; or (ii) on behalf of the residents of such state, to enforce any applicable federal or state law against a national bank or federal savings association or to seek relief and recover damages for a violation of any such law by a national bank or federal savings association.  However, the Revised Dodd Bill requires attorneys general to consult with the OCC or OTS, as applicable, prior to bringing such actions.

    C. The House Approach

    H.R. 4173 also contains sweeping reforms with respect to federal preemption for national banks and federal savings associations, but in contrast to the Revised Dodd Bill, does not contain an explicit reference to the Barnett standard.  Instead, H.R. 4173 only requires that a state law "significantly" interfere with the business of banking before it may be preempted.  This distinction is significant because, as discussed above, the OCC views Barnett as specifically setting forth certain tests that would make it easier for the OCC to persuade courts to preempt state law, which H.R. 4173 does not contain.

    Unlike the Revised Dodd Bill, Section 4404 of H.R. 4173 instead provides that "state consumer financial laws" are preempted only if, among other things,8 a court or the OCC, by regulation or order, makes a determination of preemption on a "case-by-case" basis that the state consumer financial law "prevents, significantly interferes with, or materially impairs" the ability of a national bank to engage in the business of banking.  The remainder of H.R. 4173's provisions relating to preemption of state laws is largely identical to the Revised Dodd Bill, including: (i) the provisions on periodic review of the OCC's preemption determinations; (ii) the applicability of state consumer financial laws to subsidiaries and affiliates of national banks; (iii) the preservation of the "most favored lender" doctrine; and (iv) the clarification of state visitorial powers upon national banks.  H.R. 4173 reiterates these same laws and legal standards with respect to the OTS (and the OCC as its successor agency) and federal savings associations, and like the Revised Dodd Bill, clarifies that the HOLA does not occupy the field in any area of state law.

    D. Analysis

    Federal preemption of state law is one of the most important consumer protection issues in financial regulatory reform and its ultimate resolution will significantly affect how national banks, federal savings associations and their subsidiaries and affiliates do business across the country.  While federal preemption will still be available to national banks and federal savings associations, their subsidiaries and affiliates may suddenly find themselves subject to a panoply of state consumer financial laws, including state licensing and other requirements, which will require a large scale and costly, re-thinking of business plans and operations.

    With respect to the national banks and federal savings associations themselves, notwithstanding the preservation of federal preemption, the requirement for the OCC, OTS or a court to affirmatively determine preemption of a state law will add another layer of uncertainty and complexity to the ordinary conduct of business, given that the determination process may take months or years to resolution.  Further, once resolved, it is unclear whether the determination of a particular state law would suffice to permit preemption of another state's law, even if those laws have "substantially equivalent terms," a term that is not defined in either the Revised Dodd Bill or H.R. 4173.  This is in marked contrast to the current practice, under which national banks and federal savings associations make this preemption determination internally, subject to OCC, OTS or a court review.  As a result, national banks and federal savings associations will face an uphill battle in engaging in business nationwide, as they try to navigate the interaction between state law and federal preemption while contending with a dense patchwork of OCC and OTS opinions and orders, new state consumer protection laws and substantial additional litigation.

    Although both the Revised Dodd Bill and H.R. 4173 contain savings clauses which grandfather in contracts which are entered into by national banks, federal savings associations and their subsidiaries prior to the effective date of the legislation, any new business will be subject to a long period of uncertainty, as long relied-on precedent is extinguished and new standards forged.

    E.   Next Steps

    With the passage of comprehensive health care legislation, the White House and Congressional leaders have both stated that enacting financial regulatory reform is now their top domestic policy priority.  Following three days in which Senate Republicans and Senator Ben Nelson (D-NE) voted to block the Senate from considering financial regulatory reform legislation, on April 28, a unanimous consent agreement was reached to proceed to consideration of the Revised Dodd Bill and debate on S. 3217 began on April 28.  While the debate on amendments has proceeded slowly, several amendments to S. 3217 have now been considered and voted on.

    This week, a revised substitute amendment to S. 3217 was adopted that memorializes the agreement between Chairman Dodd and Ranking Member Richard Shelby (R-AL) to remove from the bill the $50 billion pre-funded resolution authority and strengthen the bill's taxpayer protections.  The Revised Dodd Bill is likely to be on the floor for about two weeks.  Most amendments offered are expected to require 60 votes for approval.  Majority Leader Harry Reid (D-NV) insists that the Senate must complete consideration of S. 3217 by the end of this week and has stated his intention to move soon to end debate on the bill if necessary to adhere to this timetable.  It will be difficult for the Senate to meet Leader Reid's timetable for finishing the bill.

    Given the number of amendments that have been filed, if the Senate is to conclude debate within two weeks, Leader Reid will either have to persuade the Senate to pass a motion ending debate or negotiate an agreement with Senate Republicans limiting both the number of amendments that are debated and the time available for debate on each amendment.  Near the conclusion of debate, Chairman Dodd is expected to offer a Manager's Amendment incorporating other amendments acceptable to him.  The inclusion of various Senators' amendments in the Manager's Amendment will play a key role in Chairman Dodd's efforts to persuade Republican Senators to agree to end debate on the bill.  Sixty Senators will have to vote to end debate before a vote on final passage of the bill can occur.

    The Revised Dodd Bill, as amended, is currently expected to pass the Senate before Memorial Day and will then be subject either to a formal conference committee or an informal conference to reconcile the bill with the House-passed financial regulatory reform bill, H.R. 4173.  Once a such a conference report is prepared and passed by both the House and the Senate, this legislation will then be sent to the President and become law unless vetoed.  The effort by some in the Senate to slow down consideration of Chairman Dodd's bill and the press of other legislative business may extend the timetable for enactment of financial regulatory reform legislation beyond the White House's aggressive goal of having a bill on the President's desk by Memorial Day, but most observers continue to believe that financial regulatory reform legislation will become law this year.  In fact, just today, House Financial Services Committee Chairman Barney Frank (D-MA) reiterated his belief that the President will sign a financial regulatory reform bill into law by the 4th of July.

    1. In Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996), the Supreme Court held that the OCC had the authority to define "interest" for rate exportation purposes under Section 85 of the National Bank Act.
    2. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837-45 (1984), the Supreme Court established a standard of deference to agency interpretations.
    3. 517 U.S. 25 (1996).
    4. 12 C.F.R. Parts 7 and 34.
    5. 550 U.S. 1 (2007).
    6. 129 S.Ct. 2710 (2009).
    7. That section also provides that state consumer financial laws will be preempted if: (i) they would have a discriminatory effect on national banks as compared to state banks; or (ii) the state consumer financial law is preempted by a provision of federal law.
    8. That section also provides that state consumer financial laws will be preempted if: (i) they would have a discriminatory effect on national banks as compared to state banks; or (ii) the state consumer financial law is preempted by a provision of federal law.