National Bank Act preemption
Hastings v. TD Bank, N.A.
Date: Aug. 21, 2026
Issue: Whether the National Bank Act (NBA) preempts New York General Business Law Section 399-zzz (Section 399-zzz).
Case Summary: ABA filed a coalition amicus brief urging the Second Circuit to hold that the NBA preempts Section 399-zzz.
As background, New York General Business Law Section 399-zzz prohibits businesses from charging consumers extra fees or higher rates just for paying by U.S. mail or receiving paper billing statements.
In April 2025, Joshua Hastings sued TD Bank, alleging it unlawfully charged him a $3 monthly fee for receiving paper account statements. Hastings, a New York resident who had maintained a TD Bank checking account since at least 2024, claimed the fee violated Section 399-zzz of the New York General Business Law, which restricts businesses from charging paper-statement fees in certain circumstances. He further alleged that TD Bank’s practice constituted a deceptive act or practice in violation of Section 349 of the New York General Business Law. TD Bank moved to dismiss, arguing the NBA preempted Hastings’ Section 399-zzz claim, that Section 399-zzz violated the First Amendment, and that Hastings failed to allege separate violations of Sections 399-zzz and 349.
Judge Hector Gonzales of the Eastern District of New York dismissed, ruling that Section 399-zzz violated TD Bank’s First Amendment rights because the statute regulated commercial speech and failed intermediate scrutiny. The court also ruled that Hastings failed to state a claim under Section 349. However, the court ruled that the NBA did not preempt Hastings’ claim because it concluded that paper statement fees did not involve a banking concept or principle and that TD Bank could avoid the statute by characterizing the charge as a credit rather than a fee. Hastings appealed the district court’s decision.
Urging the Second Circuit to reverse the portion of the district court’s decision holding that the NBA did not preempt Section 399-zzz, ABA made two main arguments. First, ABA argued the Second Circuit should conduct a preemption analysis under Cantero’s mandatory framework. Under Cantero, courts must conduct a “nuanced comparative analysis,” including a practical assessment of the nature and degree of the interference caused by a state law guided by the text and structure of the laws, comparison to other precedents, and common sense. ABA noted that the district court did not conduct that analysis and instead relied on Manship v. TD Bank. This pre-Cantero decision did not apply Barnett Bank or the Supreme Court cases that Cantero requires courts to consider.
Second, ABA argued that Section 399-zzz significantly interferes with national bank powers. ABA emphasized the law plainly affects national banks’ power to charge deposit-account and loan-related fees. The NBA gives national banks broad authority to receive deposits, conduct the business of banking, and charge non-interest fees, while OCC guidance confirms that banks may set those fees based on their own business judgment. ABA maintained that Section 399-zzz directly limits that authority by banning a specific deposit-related fee. ABA also emphasized that Section 399-zzz significantly interferes with national banks’ power to charge non-interest fees. Applying Cantero’s comparative framework, ABA explained that the law restricts banks’ ability to price services efficiently and limits their flexibility to decide whether, when, and how to charge for paper statements. ABA compared that interference to state laws the Supreme Court found preempted in Franklin, Fidelity and Barnett Bank. ABA also rejected the district court’s view that banks could avoid the law by relabeling a fee as a credit, arguing that a possible workaround does not defeat preemption.
Bottom Line: ABA urged the Second Circuit to hold that the NBA preempts Section 399-zzz because the law directly restricts national banks’ federally protected authority to charge non-interest fees and significantly interferes with their pricing discretion under Cantero.
Document: Brief
