The Cantero Opinion: The Supreme Court Leaves National Bank Preemption in Limbo

On May 30, the Supreme Court issued its opinion in Cantero v. Bank of America, reversing and remanding the case to the Second Circuit. Rather than articulating a bright line test for preemption, the Supreme Court instructed the circuit court to conduct a “nuanced analysis” to determine whether the National Bank Act preempts a New York state law that requires the payment of 2% interest on mortgage escrow accounts. Per the Supreme Court, the Second Circuit must apply the preemption standard described in the Dodd-Frank Act, which provides that a state consumer financial law is preempted “only if” it discriminates against national banks in comparison with state banks; is preempted by another Federal law; or “prevents or significantly interferes with the exercise by the national bank of its powers,” as determined “in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States” in Barnett Bank, N.A. v. Nelson. See 12 U.S.C. § 25b(b)(1). We open today’s podcast episode, which repurposes a recent webinar roundtable covering the Cantero decision, with a new preface by moderator Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group. This preface provides an update on an important post-Cantero development: a Ninth Circuit opinion issued on August 23 in another preemption case, Kivett v. Flagstar Bank. Alan explains why the Ninth Circuit’s new opinion in Kivett applies a standard that is totally inconsistent with the instructions provided by the Supreme Court in Cantero. Today’s episode then proceeds with a discussion featuring Alan Kaplinsky, Ballard Spahr Partner Joseph Schuster, and four attorneys who each filed an amicus brief in Cantero. These experts share their reactions and explore potential next steps and possible outcomes as the Second Circuit and other courts proceed with efforts to comply with the Supreme Court’s Cantero mandate.