In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts.  See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).

In Kivett, Flagstar Bank appealed the district court’s ruling that Ninth Circuit precedent foreclosed any argument that the National Bank Act preempted a California state law requiring banks pay 2% interest to borrowers on money held in their escrow accounts.  The Ninth Circuit affirmed, and the defendant filed a petition for certiorari.  While the petition was pending, the Supreme Court decided Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), which provided guidance on the standard of preemption under the National Bank Act.  In the process, the Court subsequently vacated the judgment in Kivett and remanded the case for reconsideration in light of that guidance.

On remand, the Ninth Circuit determined that its previous reasoning was sound, writing that “the Supreme Court’s decision in Cantero suggests . . . [w]e properly applied the test for preemption from Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996), in concluding that no legal authority established that [interest on escrow] laws significantly interfered with national bank powers, and that the text of Dodd–Frank also reflected Congress’s view that such laws do not.”  Kivett, 2024 WL 3901188 at *2.

Photo of Marianne Spencer Marianne Spencer

Marianne Spencer is an associate in the firm’s Washington, DC office, where her practice focuses on class actions and complex civil litigation. She has defended clients in the financial services, sports, pharmaceutical, and technology industries against class actions in state and federal courts…

Marianne Spencer is an associate in the firm’s Washington, DC office, where her practice focuses on class actions and complex civil litigation. She has defended clients in the financial services, sports, pharmaceutical, and technology industries against class actions in state and federal courts across the country.

Marianne previously served as a law clerk to the Honorable Steven M. Colloton on the Eighth Circuit Court of Appeals. She maintains an active pro bono practice focused on civil rights and housing issues.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes. Recognized for achieving “big wins in his class action practice,” Andrew has defeated a variety…

Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes. Recognized for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims ranging in exposure from millions to billions of dollars.

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, and media and communications industries. He has helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew provides a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters, his understanding of their businesses, and his creative strategies.

Andrew’s recent successes include:

  • Leading the successful defense of several of the world’s leading companies and brands from claims that they engaged in deceptive marketing or sold defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Delivering wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including the successful defense of numerous financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
  • Helping one of the world’s largest seafood companies defeat ESG-related claims accusing the company of misrepresenting its environmental-friendly production practices.

Andrew has also obtained favorable outcomes for numerous clients in commercial and indemnification disputes raising contract, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. And he advises companies on their arbitration agreements, and has helped numerous clients avoid multi-district and class-action litigation by successfully enforcing their arbitration agreements.

Watch: Andrew provides insights on class action litigation, as part of our Navigating Class Actions video series.