Federal Court Issues Decision Denying OCC’s Ability to Issue National Bank Charters to Non-Depository “FinTechs”: Southern District of New York Rules in Favor of the N.Y. Department of Financial Services’s Claims That Chartering Decision Exceeded Scope of Comptroller of the Currency’s Authority Under the National Bank Act

Sullivan & Cromwell LLP - May 3, 2019

In July 2018, the Office of the Comptroller of the Currency (“OCC”) announced that it would begin accepting applications for special purpose national bank charters for financial technology (“fintech”) companies, including non-depository fintech lenders. The N.Y. Department of Financial Services (“DFS”) sued OCC, claiming that issuing these charters to non-depository institutions exceeded OCC’s authority under the National Bank Act, and thus improperly usurped DFS’s regulatory authority over such institutions. On May 2, 2019, Judge Victor Marrero of the U.S. District Court for the Southern District of New York issued a decision denying OCC’s motion to dismiss DFS’s complaint, and determining that OCC lacks authority under the National Bank Act’s “business of banking” provision to offer charters to non-depository fintechs.