For the second time, the District Court for the District of Columbia dismissed the Conference of State Bank Supervisors' (CSBS) challenge of the Office of the Comptroller of the Currency (OCC) proposal to issue special purpose national bank charters tailored to fintech companies (fintech charter). In an effort to cure "the original jurisdictional deficiency" of its first challenge, the CSBS sought to rely on two new developments: (1) Joseph Otting's confirmation as the Comptroller of the Currency, and (2) the OCC's July 31, 2019 finalization of its fintech charter licensing manual supplement and procedures. However, the Court held that CSBS "still fails to plead an injury in fact that is either actual or imminent" and also fails to "identify which particular member of the organization faces imminent injury."
But the issue is far from resolved. The Court did not rule on the merits of CSBS's challenge—instead, it held that "this case is prudentially unripe . . . [and the Court] will lack jurisdiction . . . at least until a Fintech applies for a charter." The Court notes that CSBS will know when the OCC accepts a fintech charter application for processing and will have ample time to challenge that application. Presumably, with an actual application filed with the OCC, the CSBS will be able to identify the particular state or bank supervisor that will suffer an injury in fact. Whether such an argument will be successful remains to be seen.
This case will undoubtedly make a comeback when that time comes, and the New York State Department of Financial Services still has a similar case pending in the Southern Direct of New York. Nevertheless, the OCC is still actively courting fintech companies and banks seeking new avenues for innovation.