On June 10, 2024, the U.S. Supreme Court summarily vacated the Ninth Circuit’s decision in Kivett v. Flagstar Bank, FSB, and remanded it “for further consideration” in light of the Supreme Court’s recent decision vacating the Second Circuit’s decision in Cantero v. Bank of America, N.A. As described in our earlier memo, in the unanimous decision in Cantero, the Supreme Court instructed the Second Circuit to re-review whether a New York law was preempted based on a “practical assessment” of whether the state law “prevents or significantly interferes with” a national bank’s power. By now vacating and remanding the decision in Flagstar, the Supreme Court order indicates that the Ninth Circuit also did not follow the proper National Bank Act preemption analysis.
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