• Financial Regulatory Reform - Conference Report Rolls Back Federal Preemption
  • July 27, 2010
  • Law Firm: SNR Denton - Chicago Office
  • On June 25, 2010, the Senate and House of Representatives conferees ("Conferees") approved the conference report (the "Conference Report") that reconciles the House-passed version of financial regulatory reform ("H.R. 4173") and the Restoring American Financial Stability Act of 2010 recently passed by the Senate (the "Senate Bill").  The original Conference Report included a Financial Crisis Special Assessment that would have paid for the costs of the Conference Report through an assessment on large financial institutions with assets above $50 billion and on hedge funds with assets above $10 billion.  After several Senators indicated that they would not vote for the original Conference Report so long as it included the Financial Crisis Special Assessment, on June 29, the Conference Committee reconvened and adopted an alternative funding mechanism, after extensive debate, to meet the House requirement that the costs of the Conference Report be fully paid for and not increase the deficit.

    On June 30, by a vote of 237¿192, the House passed the revised Financial Regulatory Reform Conference Report.  The Senate is currently expected to take up the Conference Report during the week of July 12 after its return from its Fourth of July recess.  The Senate Democratic leadership had originally planned to take up the revised Conference Report immediately after House passage.  However, because of the death of Senator Robert Byrd of West Virginia and the Senate's decision to devote much of its schedule on June 30 and July 1 to memorial tributes to Senator Byrd, Majority Leader Harry Reid announced that the Senate would not consider the Conference Report until the week of July 12.  Once it takes up the revised Conference Report, 60 votes will be required to end Senate debate and move toward a vote on the Conference Report’s passage.

    If passed by the Senate and signed by the President, the revised Conference Report would become the Dodd-Frank Wall Street Reform and Consumer Protection Act.  This alert focuses specifically on the effects of the Conference Report on federal preemption of state law, and provides an update to the alert that we published on May 10, 2010.

    The Conference Report rolls back the preemption protection currently enjoyed by national banks and federal savings associations by:

    • Requiring that a state consumer financial law prevent or significantly interfere with the exercise of a national bank's powers before it can be preempted;
    • Mandating that any preemption determination be made on a case-by-case basis, rather than by a blanket rule;
    • Ending the applicability of preemption to subsidiaries and affiliates of national banks, which could force banks to reevaluate the activities they conduct through subsidiaries or risk their becoming subject to state lending and licensing laws;
    • Expressly subjecting federal savings associations to the same preemption standards applicable to national banks;
    • Clarifying that state attorneys general (or other chief law enforcement officers) may enforce applicable state law not related to visitorial powers (i.e., the power to conduct examinations, inspect records, etc.) against a national bank or federal savings association or seek relief and recover damages for a violation of any such law by a national bank or federal savings association; and
    • Clarifying that state attorneys general may bring civil actions in the name of a state against a national bank or federal savings association to enforce a "Bureau of Consumer Financial Protection" ("CFPB") regulation, provided that such attorneys general consult with the Office of the Comptroller of the Currency ("OCC") or the Office of Thrift Supervision ("OTS"), as applicable, prior to bringing such actions.

    This erosion of the OCC's preemptive authority will significantly affect the industry's ability to rely on a long history of OCC orders and court cases interpreting this issue, and is sure to engender much confusion and litigation for many years ahead.  Such erosion may also make state chartered financial institutions more viable as compared with national banks and federal savings associations.

    A. Background

    In recent years, actions by the OCC and the OTS, the regulatory agencies that primarily regulate national banks and federal savings associations, 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.1

    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.  In 1996, in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner,2 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.  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 regarded Barnett as specifically setting forth certain tests that would make it easier for the OCC to persuade courts to preempt state law.  Under Barnett, in order to preempt a state consumer protection statute, the OCC must show that the state law "prevents or significantly interferes" with a national bank's exercise of its powers.

    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")3 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, regardless of whether such state laws "significantly interfered" with the exercise of a national bank's exercise of its powers.  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.,4 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.  The Wachovia decision, in combination with the Barnett decision and the Preemption Rule, marked the apex of federal preemption of state law in the banking industry.

    B. The Conference Report

    Critics of federal preemption have asserted that the preemption of state consumer protection laws by federal banking laws and regulations contributed significantly to the financial crisis.  Critics alleged that while national banks preempted state and local laws, there was no equivalent federal regulation to take its place in many instances.  Further, by removing consumer protection from the jurisdiction of state regulators, critics alleged that state regulators were helpless to oversee and regulate the types of predatory and abusive practices that were prevalent in the mortgage industry, which were overlooked by the industry friendly federal agencies.  As a result, both H.R. 4173 and the Senate Bill created a new federal consumer protection regulator and sought to limit federal preemption by statute.  Accordingly, the Conference Report contains provisions which would significantly erode the powers of both national banks and federal savings associations to preempt state law in specific areas.

    1. Restoration of the Barnett Standard

    The Conference Report significantly rolls back the broad preemptive authority that the OCC has claimed under its Preemption Rule and restores the Barnett standard by requiring that (1) a state consumer financial law "prevent or significantly interfere with" the exercise of a national bank's powers before it can be preempted and (2) any preemption determination be made on a case-by-case basis, rather than by a blanket rule.  In doing so, the Conference Report effectively stops in its tracks and reverses the steady expansion of federal preemption which had been ongoing since the passage of Riegle-Neal and the Barnett decision, and which ultimately culminated with the Watters decision.  In particular, Section 1044 of the Conference Report adds a new section to the National Bank Act and provides that state "consumer financial laws" are preempted only if, among other things,5 a court or the OCC, by regulation or order, makes a determination on a "case-by-case" basis that the state consumer financial law "prevents or significantly interferes with" the exercise of a national bank's powers.  Significantly, the Conference Report does not include the "materially impairs" language which was originally included in H.R. 4173.  The Conference Report 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 Conference Report 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 CFPB and take the views of the CFPB into account when making the determination.

    The Conference Report 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 Conference Report 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 supporting the specific finding regarding the preemption of such provision in accordance with the legal standard articulated in Barnett.  The Conference Report 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 Conference Report effectively reverses the holding in Watters, and provides that subsidiaries and affiliates of national banks (other than a subsidiary or affiliate that is chartered as a national bank) will no longer enjoy the same preemptive rights as national banks.  Instead, the Conference Report 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 currently enjoy in making different types of consumer loan products, including residential mortgage loans.

    3. Target on Thrifts

    With respect to federal savings associations, the Conference Report 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 Conference Report 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.  By doing so, the Conference Report effectively "levels the playing field" between federal savings associations and national banks on the preemption issue so that both are now subject to the Barnett standard.  Accordingly, this provision is a "game changer" for thrifts.

    4. Visitorial Powers v. Enforcement Authority

    The Conference Report codifies the Supreme Court's decision in Cuomo v. Clearing House Association, L.L.C.6 by which 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.  The Conference Report specifically clarifies 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 applicable state law; or (ii) on behalf of the residents of such state, to enforce any applicable 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, with regard to enforcing any CFPB regulation, the Conference Report requires state attorneys general to consult with the OCC or OTS, as applicable, prior to bringing a civil action or, in the case of any emergency action, upon the commencement of such action, to enforce a CFPB regulation.

    5. Rate Exportation Not Affected

    One area of federal preemption that the Conference Report 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 has aggressively interpreted what is permitted to be exported as "interest" under Section 85 of the National Bank Act,7 allowing the OCC to define "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 Conference Report'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.

    C. Analysis

    Federal preemption of state law is one of the most important consumer protection issues in financial regulatory reform, and the changes made by the Conference Report 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 rethinking of business plans and operations.  As a result, banks should consider moving their lending operations out of subsidiaries or risk such operations becoming subject to state lending and licensing laws.  Alternatively, such subsidiaries and affiliates may need to consider either obtaining federal charters themselves or becoming divisions of their national bank parents or affiliates in order to continue "business as usual" to the extent that is possible. The Conference Report will also throw into disarray the heretofore settled body of OCC and OTS administrative actions and orders as well as case law that has defined the parameters of preemption for the industry by essentially invalidating these actions, orders and cases which had been the building blocks leading up to the OCC's Preemption Rule and the Watters decision.

    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 that a state law "prevents or significantly interferes" with federal law in order for such state law to be preempted 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 resolve.  Preemption will become a piecemeal process and, as a result, choosing not to comply with a potentially applicable state law on the grounds that it is preempted will require banks to assume increased risk or curtail certain activities or practices.  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 the Conference Report. It is also unclear how much "substantial evidence" will be needed to be shown by the OCC in order to make a determination of preemption.  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 expensive 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 the Conference Report contains a savings clause which grandfathers 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.

    Finally, the erosion of the preemptive authority of the OCC and the OTS may have the affect of making state chartered financial institutions more viable as compared with national banks and federal savings associations.

    D. Next Steps

    The Conference Report must be passed by the Senate before it can be sent to the President to be signed into law.  With announcements by Senators Susan Collins (R-Maine) and Maria Cantwell (D-Wash.) shortly after the June 30 House passage of the Conference Report that they each will support the revised Conference Report, the Senate Democratic Leadership is getting close to securing the votes required to end debate on the Conference Report and pass it.

    Because the Conference Report cannot be amended by the Senate when it votes on the final regulatory reform bill, if the Conference Report is passed by the Senate, it will become law in its current form.  The Conference Report is currently expected to be considered by the Senate during the week of July 12.  However, because the vote of a new Senator from West Virginia will be critical to obtaining the 60 votes required to end debate on the Conference Report and move toward a vote on its passage, the timing for consideration of the Conference Report will depend, in large part, upon when a temporary replacement is appointed to succeed Senator Byrd.

    1. 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").

    2. 517 U.S. 25 (1996).

    3. 12 C.F.R. Parts 7 and 34.

    4. 550 U.S. 1 (2007).

    5. That section also provides that state consumer financial laws will be preempted if: (1) the application of a state consumer financial law would have a discriminatory effect on national banks in comparison with the effect of the law on a state-chartered bank; or (2) the state consumer financial law is preempted by another provision of federal law.

    6. 129 S.Ct. 2710 (2009).

    7. 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.