Post-Dodd-Frank Preemption Standard Clarified

Two recent developments regarding the preemption standard for national banks are of interest to financial services industry clients. One development was a decision by the U.S. Court of Appeals for the 11th Circuit that should provide national banks a bit more clarification and comfort regarding the post-Dodd-Frank Act preemption standard for national banks. The other development was an interpretive letter from the Office of the Comptroller of the Currency (OCC) that says, in essence, that the post-Dodd-Frank preemption standard for national banks might not differ substantially from the standard applied prior to enactment of the Act. While this interpretation is generally seen as good news by banks, it merely establishes the battle lines for challenges that ultimately will need to be settled by the courts. This issue is important for federal thrifts as well, as the Dodd-Frank Act eliminated the field preemption enjoyed by federal thrifts and subjects federal thrifts to the same preemption standards as national banks.

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