# Amicus Curiae Brief — Chase Manhattan Bank, N. A. v. American Land Title Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 971

## Text

No. 92-645

; NOV
IN THE ed

Supreme Court of the Gnited States”

OCTOBER TERM, 1992

STEPHEN L. STEINBRINK, et al.,
Petitioners,
V.

AMERICAN LAND TITLE ASSOCIATION, et al.,
Respondents.

On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Second Circuit

BRIEF OF THE AMICI CURIAE
AMERICAN BANKERS ASSOCIATION, ET AL.,*
IN SUPPORT OF THE PETITIONERS

JOHN J. GILL III
Counsel of Record

_ MICHAEL F. CROTTY

AMERICAN BANKERS ASSOCIATION
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036

(202) 663-5026

Attorneys for Amici Curiae
November 12, 1992

{*Complete list of sponsoring organizations and counsel on
inside of cover.|

PLAN ERO ENE ENTS AIOE SSSI ASE RRR SEE NEI ARSED
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

ee

-_

—— -_

RICHARD M. WHITING

ASSOCIATION OF BANK HOLDING COMPANIES
730 15th Street, N.W.

Washington, D.C. 20005

(202) 393-1158

JAMES T. MCINTYRE

McNAIR LAW FIRM

1155 15th Street, N.W.

Washington, D.C. 20005

(202) 659-3900

Attorney for Association of
Banks in Insurance

MARCIA Z. SULLIVAN

CONSUMER BANKERS ASSOCIATION

1000 Wilson Boulevard

Arlington, Virginia 22209

(703) 276-1750 4

JOHN S. JACKSON
MINNESOTA BANKERS ASSOCIATION (
730 Second Avenue South

Minneapolis, Minnesota 55402

(612) 338-5137 (

WADE L. NASH

MISSOURI BANKERS ASSOCIATION
207 E. Capitol

Jefferson City, Missournn 65101
(314) 636-8151

JOHN E. KNIGHT

BOARDMAN, SUHR, CURRY & FIELD

P.O. Box 927

Madison, Wisconsin 53701

(608) 257-9521

Attorney for Wisconsin Bankers
Association

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QUESTION PRESENTED

Whether Section 92 of the National Bank Act,
granting insurance agency powers to national banks
in small towns that are “in addition to the powers
now vested by law in national banking associations,”’
constitutes an implied limitation upon the incidental
powers of national banks, granted elsewhere in the
statute, where such banks are located in larger towns.

ill

TABLE OF AUTHORITIES

Cases:

American Insurance Association v. Clarke, 865 F.2d
SR CED. Cie TOG) cvewisecscenctccssecnunessseaterenecnars

American Land Title Association v. Clarke, 772 F.
Supp. 1353 (S.D. N.Y. 1991) .....seeeeeeeereees

American Land Title Association v. Clarke, 968
F.2d 150 (2d Cir. 1992) ccccscccsnsiccccccsessecsesesnses:

Board of Governors of the Federal Reserve System
y. Dimension Financial Corp., 474 U.S. 361

PU icine da vcaicvasccnucrcatusnpentanscvacsasshanvennneeniwneniers
Clarke v. Securities Industry Association, 479 U.S.
BOB CUDST) vsnsksscivestincserecsieneiiieicamnenesan
Crawford Fitting Company v. J.T. Gibbons Inc., 482
OY. GBT CIT) wvvsevces cissxcescarceeresierionsrngsercanses

First National Bank of Eastern Arkansas v. Taylor,
907 F.2d 775 (8th Cir.), cert. denied, 111 8.Ct.
BAD C1GGO): oocccvciccesencocsncsevensnnsssnsexenssssnssieanvennsoes

Independent Bankers Association of America v. Hei-
mann, 613 F.2d 1164 (D.C. Cir. 1979), cert.
denied, 449 U.S. 823 (1980) ...........ccccccesereseeoes

Independent Insurance Agents of America v. Boa rd
of Governors of the Federal Reserve System,

Tae Od £60 (Oth Cie, TOBA) cecncisscnscccssossssesees

Independent Insurance Agents of America v. Clarke,
955 F.2d 731 (D.C. Cir. 1992) ...........scsseseevsee:
Saxon v. Georgia Association of Independent Insur-
ance Agents, 399 F.2d 1010 (5th Cir. 1968) ...
Securities Industry Association v. Clarke, 885 F.2d
1035 (2d Cir. 1989), cert. denied, 493 U.S. 1070
CWOG) ciccciinsscciscsccscsyeessarstaccssrsrssevintnctinceneecnunss

Variable Annuity Life Insurance Co. v. Clarke, 786
F. Supp. 639 (S.D. Tex. 1991), appeal pending,
No. 92-2010 (6th CAP.) ccc. isin oiiccscnne

Page

11

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Table of Authorities Continued

Page

Statutes:
ie tA. Soe Tey csc passim
Ae Wee. Be ccescasicsectsason eee passim
Act of Sept. 7, 1916, ch. 461, 39 Stat. 752

ERUPAWSS cxsancunnvadigensavnssccaccantcsnneeaesapieneieneae aaa 2
Miscellaneous:
Comptroller Interp. Letter No. 499 [1989-90 Trans-

fer Binder] Federal Banking Law Rep. (CCH)—

eee COD EE, TOD vos cactcsarsssisou 1]
Comptroller Interp. Letter No. 331 [1985-87 Trans-

fer Binder] Federal Banking Law Rep. (CCH)—

OO) CRORE 6. TU crsitiecciccuneenete 1]
McFadden American Bank Directory, Spring, 1992

CAADUIIIIOIRD , <sxcssnccassvcesskeukesealceariersceaes pean 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-645

STEPHEN L. STEINBRINK, et al.,
Petitioners,
V.
AMERICAN LAND TITLE ASSOCIATION, et al.,
Respondents.

On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Second Circuit

BRIEF OF THE AMICI CURIAE
AMERICAN BANKERS ASSOCIATION, ET AL.,
IN SUPPORT OF THE PETITIONERS

The American Bankers Association, et al., hereby
respectfully submit this brief as amici curiae in sup-
port of the Petitioner in accordance with the provi-
sions of Rule 37.2 of the Supreme Court Rules. All
parties have consented to this filing, and their written
consents are filed with this brief.

INTEREST OF THE AMICI CURIAE

The American Bankers Association, Association of
Bank Holding Companies, Association of Banks in In-

9

surance and Consumer Bankers Association are all
national trade associations of the commercial banking
industry. A large majority of commercial banks in the
United States, their employees or the bank holding
companies that own them are members of one or
more of the associations. The Minnesota, Missouri and
Wisconsin Bankers Associations are the principal
trade associations for the banking industry within
their respective states. All of the associations rep-
resent the interests of both national banks and state-
chartered banks in the legislatures, regulatory agen-
cies and in the courts on issues that are of widespread
importance to the industry. This is such a case for
the reasons set forth below.

REASONS FOR GRANTING THE WRIT
I. The Conflicts Among the Circuits

There are two conflicts among the circuits pre-
sented in this case. The first is whether or not Section
92 of the National Bank Act continues to exist; the
second is over how to construe Section 92 assuming
it does exist. For purposes of this case, the second
is the more important of the two.

Section 92 of the National Bank Act was enacted
in 1916. It was designed to grant to those national
banks located and doing business in small towns the
power to engage in the general insurance agency busi-
ness. The opening clause of Section 92 provided that
this power was to be “‘in addition to the powers now
vested by law in national banking associations.’”!
Among the powers then and now vested in national
banking associations was the power to exercise ‘‘all

‘Act of Sept. 7, 1916, ch. 461, 39 Stat. 752, 753 (1916).

such incidental powers as shall be necessary to carry
on the business of banking.’’? The Comptroller of the
Currency is charged with the interpretation and en-
forcement of these and other provisions of the Na-
tional Bank Act. Clarke v. Securities Industry
Association, 479 U.S. 388, 403-04 (1987).

In this case, Chase Manhattan, located and doing
business in New York City, sought and received the
approval of the Comptroller to engage in the business
of selling title insurance as agent, as an exercise of
its “incidental powers.’’ The District Court upheld the
Comptroller’s action. American Land Title Associa-
tion v. Clarke, 772 F. Supp. 1353 (S.D.N.Y. 1991).

On appeal, the Second Circuit reversed. In doing
so, each of the court’s two key holdings place the
Circuit’s decision in direct and irreconcilable conflict
with decisions of other U.S. Courts of Appeals.

The most obvious conflict is with a District of Co-
lumbia Circuit opinion handed down four months ear-
lier in Independent Insurance Agents of America v.
Clarke, 955 F.2d 731 (D.C. Cir. 1992), and it concerns
the very existence of Section 92 of the National Bank
Act. Because of two arguably - misplaced quotation
marks in the statute enacting Section 92, subsequent
iegislation, enacted only two years later and -on an
entirely unrelated subject, is said to have repealed
Section 92. The District of Columbia Circuit concluded
that Congress did what it did, and that “‘section 92
has ceased to exist.” Jd. at 739. The Second Circuit,
in the case below, explicitly disagreed with the Dis-
trict of Columbia Circuit, holding that whatever hap-

212 U.S.C. § 24 (Seventh).

—

pened in 1918 did not effect a repeal of Section 92.
American Land Title Association v. Clarke, 968 F.2d
150, 152 (2d Cir. 1992).

Obviously, this conclusion by the Second Circuit is
absolutely critical to its ultimate holding. If Section
92 does not exist, then there is no basis upon which
the court could find a “‘limitation”’ upon the incidental
powers of national banks. It would have to have
reached the question (which it declined to reach)
whether title insurance agency activities fit within the
incidental powers clause of the National Bank Act,
and the decision cannot stand.

The respondent title associations, the Comptroller
of the Currency, and your amici all take the position
that the Second Circuit’s decision upholding the con-
tinued existence of Section 92 is correct. Chase Man-
hattan does not take a contrary position. (See Chase
Manhattan Bank v. American Land Title Association,
No. 92-482, Pet. for Cert. at 12-13). The conflict be-
tween the Second and the District of Columbia Cir-
cuits is before the Court on petitions for writ of
certiorari to review the District of Columbia Circuit
opinion in the Independent Insurance Agents case.
Steinbrink v. Independent Insurance Agents of Amer-
ica, No. 92-507; U.S. National Bank: v. Independent
Insurance Agents of America, No. 92-484. The Court
can and should resolve the conflict over the existence
of the statute in the context of those cases.

But doing so will not resolve the second conflict
among the circuits that is created by the decision
below in this case. If Section 92 does exist, is it an
implied limitation upon the insurance powers of na-
tional banks in large towns or is it an independent
grant of insurance powers to national banks in small

3)

towns? That conflict is separate and distinct, and sur-
vives the outcome of the dispute over the existence
of Section 92.

The Petitions for Writ of Certiorari in this and its
companion case correctly point out that the decision
of the Second Circuit here and of the Fifth Circuit
in Saxon v. Georgia Association of Independent In-
surance Agents, 399 F.2d 1010 (5th Cir. 1968) both
construe Section 92 of the National Bank Act as a
limitation upon the rights of national banks located
in larger jurisdictions to engage in the insurance busi-
ness, whether or not the particular insurance business
in question might be considered “‘incidental”’ to bank-
ing. On the other hand, the District of Columbia Cir-
cuit, in Independent Bankers Association of America
v. Heimann, 613 F.2d_1164 (D.C. Cir. 1979), cert.
denied, 449 U.S. 823 (1980), and the Eighth Circuit,
in Independent Insurance Agents of America v. Board
of Governors of the Federal Reserve System, 736 F.2d
468 (8th Cir. 1984), both have clearly rejected the
idea that there is that kind of negative inference to
be drawn from Section 92.

While your amici agree with the Petitioners on this
point, we respectfully suggest that this particular con-
flict between the circuits is even deeper and perhaps
more subtle than it appears at first blush. The conflict
has to do with the order in which the respective courts
analyze the applicable or arguably applicable statutes
in cases testing the powers of banks under the Na-
tional Bank Act, and the priorities that are assigned
to different sections of the law.

Here, the Second Circuit looked first at Section 92
of the Act. Having done so, it opted for an easy
answer: Title insurance is insurance; insurance can

6

only be offered by those national banks located in
small towns; Chase Manhattan is located in a large
town, so it cannot offer title insurance; all other con-
siderations are irrelevant. Had the Second Circuit in-
stead looked first to Section 24 (Seventh) of the
National Bank Act, it would have to have analyzed
the question whether title insurance agency sales fit
within the business of banking or, more precisely,
whether the Comptroller of the Currency was within
his nights in so concluding. If the court then had
decided that title insurance was part of the business
of banking, it could have dismissed sections of the
law governing nonbanking activities as irrelevant—
including Section 92. Other courts—even including an-
other panel of the Second Circuit—have done precisely
that, and the Second Circuit’s failure to do so in this
case creates a conflict in the framework far analysis
of this particular issue and related ones.

in First National Bank of Eastern Arkansas v.
Taylor, 907 F.2d 775 (8th Cir.), cert. denied, 111 S.Ct.
442 (1990), the bank proposed to offer ‘‘debt cancel-
lation contracts”’ to its customers, alleging (with the
agreement of the Comptroller of the Currency and
the Comptroller's support as amicus curiae before the
Eighth Circuit) that such contracts were within the
incidental powers of national banks. The contracts
provided that, for a fee, the bank would cancel a
borrower’s then outstanding indebtedness upon the
borrower's death or disability. The Arkansas Insur-
ance Department directed the bank to cease and des-
ist, claiming that the contracts were the functional
equivalent of credit life insurance policies and, as such
were subject to regulation by the Department, could
not be sold without an insurance license, and that

~

insurance licenses could not be issued to banks in
Arkansas. The bank argued that, as a national bank,
its powers were governed by preemptive federal law;
the Department countered that the federal McCarran-
Ferguson Act left regulation of the insurance business
exclusively to the states.

The Eighth Circuit looked first to Section 24 (Sev-
enth) of the National Bank Act to determine the pow-
ers of the national bank in question. It concluded that
debt cancellation contracts fit within the incidental
powers of banks. The court then turned to the statute
governing nonbanking activities to determine its appl-
icability to the case at hand. It did not deny that
debt cancellation contracts might be ‘“‘insurance’”’ for
state law purposes, but concluded that that was an
irrelevant consideration: ‘Because debt cancellation
contracts offered by FNB fall within the incidental
powers granted by the National Bank Act, they do
not constitute ‘the business of insurance’ under the
McCarran-Ferguson Act.” Jd., 907 F.2d at 779.

Had the Eighth Circuit looked first at the statute
governing nonbanking activities, as the Second Circuit
did in this case, it could well have determined that
debt cancellation contracts were insurance and left to
the regulation of the Insurance Department, never
reaching the ‘‘incidental powers” issue. That court
examined the arguably applicable statutes in the re-
verse order from the Second Circuit’s, the two de-
cisions therefore being in conflict with one another.

In Securities Industry Association v. Clarke, 885
F.2d 1034 (2d Cir. 1989), cert. denied, 493 U.S. 1070
(1990), Security Pacific National Bank proposed to
pool its mortgage loans and sell participations in that

00

pool to investors. The Comptroller of the Currency
approved, and a trade association of the securities
industry sued, claiming that the bank would be en-
gaged in underwriting and selling securities in vio-
lation of the Glass-Steagall Act. The Second Circuit
upheld the Comptroller’s approval. It looked first at
Section 24 (Seventh) of the National Bank Act, and
found that that Section granted explicit powers to
national banks to negotiate promissory notes or other
evidences of debt, and that is precisely what Security
Pacific was doing. The Court then reached the pro-
visions of law governing the securities business, and
found them inapplicable because it had already deter-
mined the activities to be authorized by the statute
governing the banking business:

Activity that falls within the ‘‘business of
banking”’ is not subject to the restrictions the
latter part of section 16 places on a bank’s
‘business of dealing in securities and stock.”’
Thus, the issues concerning the definitions of
‘securities’ and “‘underwriting’’ only become
relevant if the activity constitutes ‘‘the busi-
ness of dealing in securities and stock.” If
the activity constitutes “‘the business of bank-
ing,’ then the Glass-Steagall Act prohibitions
SIA claims are violated here do not apply.

Id., 885 F.2d at 1048.

In this case, where the court looked first to the
statute governing nonbanking activities to determine
the powers of a bank, it has acted in conflict with a
different panel of the same court.

Obviously, this is not to say that the grant of power
to national banks to engage in the business of banking

found in Section 24 (Seventh) can overcome explicit
statutory prohibitions against banks engaging in a
particular business or in a particular way. But there
is no such prohibition here. Even if the Second Circuit
is right in holding that the law gives a power in one
section of the law and takes it away in another by
negative inference, there must still be some principled
way to choose which of those two sections actually
governs the outcome of a particular case. Here, the
Second Circuit claims to follow the rule of statutory
construction that the statute addressing the matter
under consideration in specific terms controls over
one that does so in a general manner. 968 F.2d at
157 (citing Crawford Fitting Company v. J.T. Gibbons
Inc., 482 U.S. 487, 445 (1987)). That is an entirely
fitting and proper rule of statutory construction where
it is applicable. It is not applicable here. There is no
reason to think that the term ‘“‘act as the agent for
any fire, life, or other insurance company” found in
Section 92 is any more (or less) ‘‘specific”’ than is the
term “carry on the business of banking’ found in
Section 24 (Seventh), nor does the Second Circuit
opinion state why that court believes the former to
be more specific than the latter. It merely premises
its decision upon the unsupported assumption that it
is SO.

The more appropriate rule of statutory construction
to follow—the one that is applicable in this case—is
the rule that requires courts to give effect to the
plain language of the statute. See, e.g. Board of Gov-
ernors of the Federal Reserve System v. Dimension
Financial Corp., 474 U.S. 361, 373-75 (1986). Here,
the court believed it was faced with the prospect of
choosing between Section 24 (Seventh) and Section

10

92. One of those sections directs the answer by its
own terms. The powers that are granted by Section
92 are “‘in addition to the powers now vested by law
in national banking associations.’’ With plain statu-
tory language like that, it would seem incumbent upon
the courts to decide—first—what those ‘‘other pow-
ers’ might be. That would require looking—first—at
Section 24 (Seventh). The fact that the Second Circuit
here performed the statutory analysis upside down
places it not only in conflict with the decisions of
other circuits, but also in conflict with this Court’s
“plain language’’ rule of statutory construction.

lI. The Important Question of Federal Law

The Petitions for Writ of Certiorari in this case
and its companion case correctly point out the impact
that the Second Circuit’s decision will have upon the
operations of a great many national banks if the de-
cision stands and, particularly, if it is followed as
precedent elsewhere.

Literally thousands of national banks act as agent
in the sale of credit-related insurance—credit life and
credit disability—in the exercise of their incidental
powers, with the approval of the Comptroller of the
Currency (12 C.F.R. § 2.6 (1991)) and the courts,
without regard for the size of the jurisdiction in which
they are located and doing business. Independent
Bankers Association of America v. Heimann, supra,
613 F.2d 1164.

A substantial and growing number of national banks
sell both fixed and variable rate annuities as agents,
over the objection by representatives of the insurance
industry that annuities are “‘insurance”’ products. Such
sales are likewise approved by the Comptroller of the

11

Currency as an exercise of the incidental powers of
national banks, again without regard to the size of
the town in which the bank operates (Comptroller
Interp. Letter No. 499 [1989-90 Transfer Binder] Fed-
eral Banking Law Rep. (CCH) ¢ 83,090 (Feb. 12,
1990); Comptroller Interp. Letter No. 331 [1985-87
Transfer Binder] Federal Banking Law Rep. (CCH)
€85,501 (April 4, 1985), and approved by the USS.
District Court in the only challenge to the Comp-
troller’s approvals. Variable Annuity Life Insurance
Co. v. Clarke, 786 F. Supp. 639 (S.D. Tex. 1991),
appeal pending, No. 92-2010 (5th Cir.).

The Comptroller of the Currency has approved the
sale of municipal bond insurance by national banks,
including a national bank in New York City, as an
exercise of incidental powers of the banks, and the

courts have upheld that action. American Insurance
Association v. Clarke, 865 F.2d 278 (D.C. Cir. 1988).

The Comptroller approved the sale of debt cancel-
lation contracts by national banks as an incidental
power. The Eighth Circuit upheld that action in First
National Bank of Eastern Arkansas, supra, 907 F.2d
775, even though the bank in question is located in
Forrest City, Arkansas, population 13,364.°

The Second Circuit’s decision is incompatible with
all of the above regulatory action and court decisions
and. if nothing else, casts doubt upon the validity of
considerable portions of the activities of national
banks of long standing, undertaken in reliance upon
earlier regulatory and judicial approval.

3 McFadden American Bank Directory, Spring, 1992 (Arkan-
sas) page 23.

12

But national banks are not the only banks with an
important interest in the outcome of this matter. State
chartered banks are affected by it as well. In as many
as 37 states, there are so-called “wild card” or ‘“par-
ity” statutes.‘ With quite a few variations, these stat-
utes generally provide that state chartered banks may
have and exercise any powers that may be exercised
by national banks located in the same state, notwith-
Standing other provisions of state law. In many ju-
risdictions, the “wild card” statute is the only source
of authority for state-chartered banks to engage in
one or more of the “‘incidental’’ functions described
above for national banks. Consequently, if the Second
Circuit decision remains unreviewed and unreversed,
the loss of “‘incidental’”’ powers by national banks shall
inevitably result in the loss of comparable powers by
a great many state chartered banks as well. Like their
national brethren, state-chartered banks have invested
in the development of ‘‘incidental’ business and es-
tablished business relationships with customers over
a long period of time in justified reliance upon fa-
vorable regulatory and judicial action. The Second
Circuit’s decision threatens to disrupt much of settled
practice, to the great detriment of both national and
State chartered banks and their customers. It there-
fore presents a question of federal law of sufficient
importance to warrant review by this Court, even
independent of the two conflicts among the circuits
that are created by the Second Circuit’s decision.

‘See Appendix to this brief for complete listing.

13

CONCLUSION

For all of the reasons stated herein and in the
Petition for Writ of Certiorari, the writ should be
granted.

Respectfully submitted,

JOHN J. GILL
Counsel of Record

MICHAEL F. CROTTY

AMERICAN BANKERS ASSOCIATION
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036

(202) 663-5026

Attorneys for Amici Curiae
November 12, 1992

APPENDIX

—

la

APENDIX
Wild Card/Parity Statutes

Alaska Sec. 06.01.020

Arizona Sec. 6-184(2)

Arkansas Sec. 23-32-701(16)

Colorado Sec. 11-2-103

Florida Sec. 655.057

Georgia Sec. 7-1-61(a)(1)

Hawaii Sec. 403-47.1

Idaho Sec. 26-1101(3)

Illinois Ch. 311.95(11)

Kansas Sec. 9-1715

Kentucky Sec. 287.020

Louisiana Tit. 6, §242(A\15), Revised Stat.

Maine Tit. 9B, §416

Maryland Sec. 5-504 of Fin. Inst. Art.

Minnesota Sec. 48.15 (Subd. 2)

Mississippi Sec. 81-5-1(10)

Missouri Sec. 362.105.3

Montana Sec. 32-1-362

Nevada Sec. 662.015(1\f)

New Hampshire Ch. 394-A

New Jersey Sec. 17:9A-24a and 17:9A-25(12)

New Mexico Sec. 58-1-54

North Dakota Sec. 6-03-38

Ohio Sec. 1125.23

Oklahoma T.6, §203

Oregon Sec. 707.340

South Carolina Sec. 34-1-110

South Dakota Sec. 51A-2-14 :

Tennessee Sec. 45-2-601

Texas Sec. 342-113(ayX4) of Civil
Statutes

Utah Sec. 7-1-301(3)

Vermont T.8, §1163

Virginia
Washington
West Virginia
Wisconsin
Wyoming

Sec.
Sec.
Sec.
Sec.
Sec.

2a

6.1-5.1
30.04.215
31A-3-2(a5\B)
220.04(8)
13-3-704

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1457%3A6. Public record. Not legal advice.