643 F.3d 1158 (8th Cir. 2011), 11-1805, TCF Nat. Bank v. Bernanke
|Citation:||643 F.3d 1158|
|Opinion Judge:||MELLOY, Circuit Judge.|
|Party Name:||TCF NATIONAL BANK, Plaintiff-Appellant, v. Ben S. BERNANKE; Janet L. Yellen; Kevin M. Warsh; Elizabeth A. Duke; Daniel K. Tarullo; Sarah Bloom Raskin, the Board of Governors of the Federal Reserve System, in their official capacities; John Walsh, Comptroller of the Currency, in his official capacity, Defendants-Appellees. American Bankers Associati|
|Attorney:||Timothy D. Kelly, argued, Minneapolis, MN, Mark V. Meierhenry, William E. Blewett, Sioux Falls, SD, Sarah Elisabeth Bushnell, Minneapolis, MN, Benjamin R. Civiletti, William D. Coston, and Martin L. Saad, Washington, DC, on the brief, for appellant. Lindsey Powell, argued, Mark B. Stern, on the b...|
|Judge Panel:||Before MURPHY, MELLOY, and SMITH, Circuit Judges.|
|Case Date:||June 29, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted: June 16, 2011.
[Copyrighted Material Omitted]
TCF National Bank sued to enjoin a portion of the Dodd-Frank Wall Street Reform Act of 2010 that will limit the rate some financial institutions may charge for processing debit-card transactions. At the outset of the proceedings, TCF moved for a preliminary injunction, and the district court 1 denied the motion. We affirm.
On July 21, 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. Pub.L. No. 111-203, 124 Stat. 1376 (2010). Section 1075 of the Act, known as the Durbin Amendment, amended the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., by adding several provisions regulating debit-card interchange fees. The new provisions authorize the Board of Governors of the Federal Reserve System (" Board" ) to set the " interchange transaction fee that an issuer [of debit cards] may receive or charge with respect to an electronic debit transaction." § 1693 o -2(a)(1). By statute, " [t]he amount of any interchange transaction fee that an issuer may receive or charge with respect to an electronic debit transaction shall be reasonable and proportional to the cost incurred by the issuer with respect to the transaction." § 1693 o -2(a)(2).
The new provisions also charged the Board with promulgating regulations " to establish standards for assessing whether the amount of any interchange transaction fee ... is reasonable and proportional to the cost incurred by the issuer with respect to the transaction." § 1693 o -2(a)(3)(A). In making this determination, the Board is to " consider the functional similarity between ... electronic debit
transactions[ ] and ... checking transactions that are required within the Federal Reserve bank system to clear at par." § 1693 o -2(a)(4)(A). The Board must further distinguish between " the incremental cost incurred by an issuer for the role of the issuer in the authorization, clearance, or settlement of a particular electronic debit transaction" and " other costs incurred by an issuer which are not specific to a particular electronic debit transaction." § 1693 o -2(a)(4)(B). The latter costs " shall not be considered" by the Board. Id. Importantly, issuers with " assets" less than ten billion dollars are exempt from these regulations. § 1693 o -2(a)(6).
TCF is a national banking association with assets in excess of ten billion dollars. TCF issues debit cards along with its checking accounts and currently uses the Visa...
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