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Unclear Whether Latest Preemption Developments Create Clear Path or Muddy Waters for Federally Chartered Banks

June 30, 2011

By V. GERARD COMIZIO & HELEN Y. LEE

Recent pronouncements from the courts and the Office of the Comptroller of the Currency (OCC) have begun to shed some light on what preemption for national banks and federal savings associations will look like on and after July 21, 2011, the effective date of the preemption provisions of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). In Baptista v. JP Morgan Chase Bank, N.A., the 11th Circuit upheld a pre-Dodd-Frank Act District Court determination that a Florida statute limiting check-cashing fees does not apply to national banks. One day later, the Acting Comptroller of the Currency wrote a letter to a member of Congress to outline the agencys interpretation of particular aspects of the preemption provisions of the Dodd-Frank Act and the agencys plans to amend its regulations to reflect such interpretation (the May 12th OCC Letter). These events were closely followed by a notice of proposed rulemaking by the OCC that sets those plans in motion (the Preemption NPR). The comment deadline for the Preemption NPR closed on June 27, 2011.