USA Law and Practice Contributed by: Edward P. O’Keefe, Neil T. Bloomfield, John A. Stoker and Kathryn (Kate) G. Wellman, Moore & Van Allen, PLLC
applicability of the terms of an agency action. Only days after issuing its opinion in Loper, the Supreme Court issued its decision in Corner Post, holding that the six-year statute of limita - tions for a plaintiff to bring an APA challenge runs from the time of the plaintiff’s alleged injury from the regulation, rather than the date the regulation was published. Cantero v Bank of America, N.A., 602 US __ (2024) In Cantero, the Supreme Court, for the first time, addressed the proper application of the pre- emption standard established by the Dodd-Frank Act for state consumer financial laws under the National Bank Act. Congress directed that courts should apply a pre-emption standard consist - ent with the “significant interference” standard established in Barnett Bank of Marion County, N.A. vs. Nelson, 517 US 25 (1996). Courts had differed in their application of this standard, with two US circuit courts reaching different decisions on whether the National Bank Act pre-empted state law requirements on national banks to pay interest on escrow accounts. The Supreme Court held that in analysing the significant inter - ference standard, courts should make a practi - cal assessment that includes: (i) looking to the text and structure of the state law; (ii) conducting a nuanced comparison of prior Supreme Court decisions in Barnett Bank and related precedent that found pre-emption (and laws that were not pre-empted); and (iii) applying “common sense”. Rather than articulate a bright-line standard for the resolution of pre-emption questions, Cantero leaves the practical application of the “signifi - cant interference” standard to development by the lower courts over the coming years. These cases are expected to lead to increased industry litigation challenging agency interpreta - tions and regulations, including the issuance and
validity of many long-standing regulations, and increased efforts to impose a greater number of state laws on national banks. Legislative and Regulatory Responses to March 2023 Bank Failures In early 2023, the US banking sector experi - enced the failure of several large regional banks. A number of regulatory proposals have been developed in response to, or were influenced to some degree by, these bank failures, including a recently proposed amendment by the FDIC to its broker deposit rules (which govern deposits obtained through an intermediary whose busi - ness is placing, or facilitating, deposits of third parties with an insured bank). Insured banks that are not well-capitalised are prohibited from accepting brokered deposits, and an institu - tion’s use of these deposits may also impact its deposit insurance and liquidity risk management supervisory assessments. The FDIC had amended the rule in 2020 by nar - rowing the types of covered brokered activities and expanding exceptions to the deposit bro - ker definition. Given the FDIC’s correlation of higher usage of brokered deposits with a higher probability of failure and citing recent banking failures, the FDIC raised concern that the 2020 amendments resulted in greater risks to institu - tions and the deposit insurance fund. The 2024 proposal seeks to undo impacts of the 2020 rule by, among other things, expanding the definition of a brokered deposit and narrowing and revok - ing exceptions. Revisions to the US Basel III Capital Rules On 27 July 2023, the FDIC, the Federal Reserve Board, and the OCC jointly published proposed rules to amend the regulatory capital frame - work for large banking organisations (those with USD100 billion or more of total assets), includ -
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