Tuesday, July 1, 2014

FYI: 11th Cir Upholds Federal Preemption as to Out-of-State State Banks

The U.S. Court of Appeals for the Eleventh Circuit recently held that the federal regulations promulgated by the Office of Comptroller of the Currency ("OCC") pursuant to the National Bank Act also applied with respect to out-of-state state banks, to preempt a state “par value” check settlement law.  This expands upon a prior ruling of the Court with respect to national banks.


A copy of this opinion is available at: http://www.ca11.uscourts.gov/opinions/ops/201310458.pdf


As you may recall, Florida Statute § 655.85 provides, in part, that "an institution may not settle any check drawn on it otherwise than at par."  The Eleventh Circuit held in 2011 (Baptista v. JP Morgan Chase Bank, N.A.) that the National Bank Act preempted Florida Statutes with respect to national banks.


In the instant matter, the Court was asked to consider whether federal law also preempted Florida Statute §655.85 with respect to out-of-state state banks. 


In July 2012, the plaintiffs presented a check at a branch of an out-of-state state bank, which assessed a check-cashing fee.  The plaintiffs brought this action against the bank, alleging that they received "less than par value," in violation of Florida Statute § 655.85, and that the assessment of the check-cashing fee unjustly enriched the bank. 


The lower court dismissed the complaint, concluding that federal law preempts § 655.85 and, because the unjust enrichment claims were premised on the same facts, those claims were also preempted.


As you may recall, 12 U.S.C. §1831a(j) provides that "the laws of a host State… shall apply to any branch in the host State of an out-of-state state bank to the same extent as such State laws apply to a branch in the host State of an out-of-State national bank." 


Based upon the federal statute and the precedent set in Batista, the Eleventh Circuit concluded that the federal law preemption would apply "to the same extent" that it applies to out-of-state banks.  Although it was unnecessary to resolve the issue at hand, the Court also noted that the legislative history surrounding §1831a(j) supports their reading that Florida Statute  §655.85 is preempted.


Accordingly, the Eleventh Circuit affirmed the District Court’s order of dismissal.






Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
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Chicago, Illinois 60602
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          McGinnis Wutscher Beiramee LLP





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