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Supreme Court ruling could impact FCUs says Mica
WASHINGTON (6/30/09)--Credit Union National Association President/CEO Dan Mica said Monday that the Supreme Court’s opinion in Cuomo v. Clearing House Association LLC could “leave the door open wider for state attorneys general to bring consumer protection lawsuits against federally chartered institutions, including credit unions.” However, Mica added, these types of lawsuits by state attorneys general are seldom brought against credit unions due to their “good record on consumer protection issues.” The Supreme Court decision, which was handed down on Monday, was written by Justice Antonin Scalia and signed by justices John Paul Stevens, David Souter, Ruth Bader Ginsberg, and Stephen G. Breyer. The decision ruled that federal banking regulations do not preempt the rights of state attorneys general to enforce otherwise non-preempted state consumer protection laws using the court system. According to Mica, this Supreme Court opinion, which holds that the National Bank Act does not preempt the ability of state authorities to sue national banks, “has more to do with who may sue federal institutions than with what subjects are preempted by federal law.” The portions of the National Bank Act that were referenced in the opinion are broader than similar portions of the Federal Credit Union Act, and the National Credit Union Administration’s determinations on preemption should stand up if they are challenged in court, Mica said. The case relates to a 2005 investigation conducted by former New York Governor and Attorney General Eliot Spitzer, who asked Citigroup, Wells Fargo and Co., and JP Morgan Chase and Co. to provide him with data so he could determine if they engaged in discriminatory lending practices. A group of large national banks attempted to block Spitzer’s probe by claiming that the existing federal regulatory structure prevented state authorities from taking their own independent actions. The Office of the Comptroller of the Currency argued that its examination "visitorial powers" preempted Spitzer's ability to enforce the state fair lending laws in question as they pertain to national banks. The Supreme Court upheld a lower court's ruling that the National Bank Act's "visitorial powers" clause preempted Spitzer's ability to use administrative subpoena powers to obtain national bank lending information, but ruled that state attorneys general may bring lawsuits to enforce consumer protection laws that are not otherwise preempted. Spitzer threatened to sue the banks after they refused to give him the data.

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