# Opposition Brief — Citicorp v. Board of Governors of the Federal Reserve System > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3278%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 472 U.S. 1027 ## Text o~ Toifice - Supreme Court, U ILE (t% ) No. 84-754 ~~ Supreme Court of the United October Term, 1984 CITICORP, Petitioner, —against— THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Respondent, —and— BANK OF BOSTON CORPORATION, THE STATE OF RHODE ISLAND, and RIHT FINANCIAL CORPORATION, Intervenor-Respondents. CITICORP, a Petitioner, —against— THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, —and— FLEET FINANCIAL GROUP, INC., Intervenor-Respondent. Respondent, On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF INTERVENOR-RESPONDENT FLEET FIN ANCIAL GROUP, INC. IN OPPOSITION TO PETITION Of Counsel: WILLIAM G. DELANA* EDWARD W. DENCE, JR. ALLAN B. TAYLOR WILLiaM C. MUTTERPERL J. BRUCE BOISTURE Day, Berry & HOWARD CityPlace Hartford, CT 06103-3499 (203) 275-0100 *Counsel of Record = for — Financial Group, Ine. QUESTIO* S PRESENTED 1. Does Section 3(d) of the Bank Holding Company Act (12 U.S.C. §1842(d)), which explicitly provides for unquali- fied deference to state laws authorizing interstate bank acquisitions, permit a state to adopt legislation allowing the acquisition of banks within its borders by bank holding companies located in specified other states adopting sim- ilar legislation? 2. Is such state legislation, enacted under the authority expressly granted by Congress in Section 3(d) of the Bank Holding Company Act, consistent with the Compact Clause of the Constitution? TABLE OF CONTENTS Questions Presented............. Table of Authorities............. Reasons For Denying the Petition RS ie ia os ln § Cc a Ob. iv TABLE OF AUTHORITIES Cases: Iowa Independent Bankers v. Board of Governors, 511 F.2d 1288 (D.C. Cir. 1975), cert. denied 423 ES 6.4 5 Xs ce when daend bee vehewnnes ee Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 740 F.2d 203 (2d Cir. 1984), petition for cert. filed, 58 U.S.L.W. 3189 (U.S. Sept. 25, 1984) (No. 84-363) ............. South-Central Timber Dev., Inc. v. Wunnicke, 52 U.S.L.W. 4631 (U.S. May 22, 1984) (No. RR De pen tee Caneariey Betiny ery Conny Southern Pacific Co. v. Arizona, 325 U.S. 761 i eg an a Western & Southern Life Ins. Co. v. Board of Equal- szation, 451 U.S. G48 (1961). ... cece se seee Statutes: Se I ir vc csv ccnencasewapwasubene SL, PR ic Gieneehatepeeaee svete Mass. Gen. Laws Ann. ch. 167A §2 (West 1984).... PAGE a) IN THE Supreme Court of the United States October Term, 1984 No. 84-754 CITICORP, Petitwomer, —against — THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, — BANK OF BOSTON CORPORATION, THE STATE OF RHODE ISLAND, and RIHT FINANCIAL CORPORATION, Intervenor-Re CITICORP, a Petitioner, —against — THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, —— FLEET FINANCIAL GROUP, INC., Intervenor- Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF INTERVENOR-RESPONDENT FLEET FINANCIAL GROUP, INC. IN OPPOSITION TO PETITION Respondent Fleet Financial Group, Inc., which was an intervenor in the court below, submits this brief in opposi- tion to the petition for certiorari filed by Citicorp (“Petition”). 1. Fleet Financial Group, Inc. has no parent company, no affiliates, and no partly owned subsidiaries. STATEMENT OF THE CASE Fleet Financial Group, Inc. (“Fleet”), a Rhode Island bank holding company, applied to the Federal Reserve Board (“Board”) in May 1984 for permission to acquire two newly established national banks. One of these new banks, to be located in Hartford, Connecticut, was to be acquired pursu- ant to Connecticut’s interstate banking law, 1983 Conn. Acts 83-411 (“Connecticut Act”). The other new bank, planned for Boston, Massachusetts, would be acquired under the author- ity of Mass. Gen. Laws Ann. ch. 167A §2 (West 1984) (“Mas- sachusetts Act”). The Board approved Fleet’s application on October 4, 1984. (Petition, Appendix D.) In its order, the Board noted that while Fleet’s application raised the same legal issues that the Board had addressed in three earlier rulings, the Board’s decisions in those rulings approving interstate acquisitions pursuant to the Connecticut Act and the Massa- chusetts Act had since been upheld by the United States Court of Appeals for the Second Circuit. (See Petition, Appendix D, 21-22.) On that basis, the Board approved Fleet’s acquisition of the two de novo banks. After Citicorp filed a petition for review of the Board’s order by the Second Circuit, Fleet, Citicorp and the Board entered into a stipulation regarding the case. The stipula- tion, reprinted as Appendix B to the Petition, reflects the acknowledgement by the parties that this case raises the same issues as those previously decided by the Second Cir- cuit in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 740 F.2d 203 (2d Cir. 1984), petition for cert. filed, 53 U.S.L.W. 3189 (U.S. Sept. 25, 1984) (No. 84-363) (“Northeast”). Contrary to the implication in the Petition (Petition, 8), however, Fleet did not agree in the stipulation that review of this case by this Court is warranted, nor did it agree to stay the consummation of its proposed transactions pending review of this case by this Court. Rather, Fleet agreed to postpone its acquisition of its two new banks only until this Court disposes of the Northeast case. It continues to be — ow Fleet’s position, as stated infra, that neither the Northeast case nor this case warrants review by this Court. The Second Circuit, based on the parties’ stipulation, affirmed the Board’s order but stayed its mandate pending this Court’s disposition of Northeast. The stay will be vacated and the Second Circuit’s mandate issued immediately if (a) the petition for certiorari in Northeast is denied, (b) the Second Circuit’s judgment in Northeast is affirmed, or (c) the stay of the mandate of the Second Circuit in Northeast is vacated by this Court. REASONS FOR DENYING THE PETITION The Petition should be denied for the reasons stated in the several briefs in opposition filed in Northeast, particularly the brief of the Solicitor General in opposition to the petition in that case. As stated in those briefs in opposition, the decisions of the Second Circuit in the present case and in Northeast are consistent with both the legislative history? and the prior judicial interpretation’ of the Douglas Amend- ment,‘ the federal statute at the heart of this case. Far from encroaching on the supremacy of the United States, the Connecticut Act and Massachusetts Act represent exercises of an authority granted to the states by Congress and hence present no important question under the Compact Clause. There is no conflict among the courts of appeals regarding the proper resolution of the questions presented. In supplementing the oppositions already filed in Northeast, Fleet wishes to emphasize two points. First, the Petition presents no issue under the Commerce Clause. There is no dispute in this case regarding the authority of Congress to permit the states to regulate interstate com- merce in ways that would not be permissible absent such congressional approval. South-Central Timber Dev., Inc. v. Wunnicke, 52 U.S.L.W. 4631 (U.S. May 22, 1984) (No. 82- 2. See Solicitor General’s Opposition to Certiorari in Northeast, at 6-10. 3. Iowa Independent Bankers v. Board of Governors, 511 F.2d 1288 (D.C. Cir.), cert. denied, 423 U.S. 875 (1975). 4. Section 3(d) of the Bank Holding Company Act, 12 U.S.C. §1842(d). 1608), at 4632; Southern Pacific Co. v. Arizona, 325 U.S.761, 769 (1945). Congress has taken just such a step in adopting the Douglas Amendment, which provides in relevant part that the Board may approve interstate acquisitions of banks by bank holding companies in any case in which such an acquisition “is specifically authorized by the statute laws of the State in which such bank is located... .” 12 U.S.C. §1842(d). The only question presented by this petition is one of statutory interpretation: Do the Connecticut Act and the Massachusetts Act fall within the scope of the authority delegated to the states in the Douglas Amendment? Cf. West- ern & Southern Life Ins. Co. v. Board of Equalization, 451 U.S. 648, 652-653 (1981) (congressional grant of authority to the states, under McCarran-Ferguson Act, removed Com- merce Clause limitations on state regulation of insurance business and left as the only issue whether actions taken by a state were consistent with the Act). This question, correctly answered in the affirmative by the Second Circuit, does not warrant review by this Court, particularly in the absence of any conflict among the courts of appeals. Second, the letter of Representative Rodino, quoted at length in the Petition (Petition, 9-11), merely highlights one of the reasons that this petition should be denied. As the letter makes clear, in its term just ended, Congress consid- ered the adoption of federal legislation that would have given specific approval to regional interstate banking statutes such as the Connecticut Act and the Massachusetts Act. While Mr. Rodino certainly appears to have opposed the enactment of such a law, the sentiments of his colleagues in the House of Representatives were never tested on this point. The proposal, embodied in a bill approved by the Senate by a vote of 89 to 5, was never brought to a vote in the House. The Senate bill (S. 2851), an omnibus banking regulation, included provisions dealing not only with interstate banking but also with securities and insurance powers of banks and bank holding companies, permissible activities of savings and loan holding companies, the payment of interest on certain reserves maintained with the Federal Reserve, bro- kered deposits, “non-bank” banks, and other topics. The fail- ure of Congress to enact this comprehensive banking legislation, of which the interstate banking provision was only one of many elements, does not in any way support Citicorp’s conclusion that the Second Circuit erred in its interpretation of the Douglas Amendment. Rather, this topic, like so many others having to do with the banking industry, is unfinished congressional business that may be addressed in the next session of Congress. As noted in the Solicitor General’s opposition to the petition in Northeast, the current congressional interest in revising the legislation that this Court would be construing if it reviewed the Second Circuit’s decision counsels denial of the petition. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, Of Counsel: WILLIAN G. DELANA* EDWARD W. DENCE, JR. ALLAN B. TAYLOR WILLIAM C. MUTTERPERL J. BRUCE BOISTURE Day, Berry & Howarp City Place Hartford, CT 06103-3499 (203) 275-0100 *Counsel of Record Counsel for Intervenor- Respondent Fleet Financial Group, Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3278%3A4. Public record. Not legal advice.