Legal Seminar, Denver, CO

Fintech Charter: “Business of Banking” & OCC’s General Chartering Authority: Statutory Context OCC: NBA should be interpreted in isolation. CSBS: NBA should be interpreted together with other federal banking laws.

• The provisions of federal banking laws other than the NBA have no bearing on the proper interpretation of the NBA. • The BHCA definition of bank serves a legislative purpose very different from the chartering provisions of the NBA • The provisions of the FRA, FDIA and other federal banking laws are equally irrelevant.

• Court must employ an interpretation of the “business of banking” that ensures harmony among the interrelated federal banking laws. • NBA chartering provisions must be read in connection with the FRA and, by extension, the FDIA. • Congress intended for the NBA to be interpreted in light of the BHCA, and, by extension, the FDIA

For Discussion Purposes Only

Fintech Charter: “Business of Banking” & OCC’s General Chartering Authority: Clarke v. SIA OCC: Reasonable to interpret “business of banking” by reference to

CSBS: Not reasonable to connect the three core banking functions to the OCC’s chartering authority. • OCC is asserting the very argument rejected in Clarke , – SIA: the phrase “general business of each national bank” has the same meaning as the “business of banking”. • OCC’s interpretation ignores the plain language of 12 USC 36. • OCC’s interpretation seeks to expand its power through statutes designed to limit it (e.g. locational restrictions). – Using nonbranch branch authority to create a nonbank bank charter.

the three core banking functions. • Clarke v. SIA , 479 U.S. 388 (1987) held that the “general business” of national banks under 12 USC 81 included only “core banking functions” identified in 12 USC 36 and not all incidental services that national banks are authorized to provide. • The “business of banking” and the “general business of each national bank” have a close “textural resemblance”. • Thus, it is reasonable to rely on Clarke to connect the core activities of Section 36 to the OCC’s chartering authority.

For Discussion Purposes Only