The Clearing House Association (TCH), along with the ABA, the FSR, and the U.S. Chamber of Commerce (Trades) filed an amicus brief with the U.S. Court of Appeals for the Second District (the Court) in support of Bank of America’s appeal in the matter of United States v. Bank of America et al.

At issue is the district court’s interpretation of Section 1833a of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) to permit the DOJ to bring a civil action against a bank for engaging in conduct that affected the institution itself. Until the district court’s ruling in 2012, no court had interpreted Section 1833a to sanction a bank’s own self-affecting conduct. The trades argue that the district court’s novel interpretation of Section 1833a is not only wrong, but also potentially dangerous to the national banking system because it threatens to disrupt the carefully calibrated framework that Congress created by providing the expert banking agencies with authority to bring actions for misbehavior by banks themselves in Section 1818(i) of FIRREA consistent with the overarching goal of ensuring the safety and soundness of financial institutions. Amici thus argue that the district court’s ruling should be reversed.