CBW Bank v. Federal Deposit Insurance Corporation et al

Filing 31

MEMORANDUM AND ORDER granting 23 American Bankers Association, the Bank Policy Institute, and the National Bankers Association's Motion for Leave to File a Brief as Amici Curiae Brief. The court will consider the amici brief (Doc. 23, Ex. 1) filed and part of the record. Signed by District Judge Daniel D. Crabtree on 1/27/2025. (ca)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CBW BANK, Plaintiff, Case No. 24-2535-DDC-BGS v. FDIC, et al., Defendants. MEMORANDUM AND ORDER The American Bankers Association (ABA), the Bank Policy Institute (BPI), and the National Bankers Association (NBA) have filed a Motion for Leave to File a Brief as Amici Curiae (Doc. 23). These entities seek to file an amici brief opposing defendants’ Motion to Dismiss (Doc. 13). In a nutshell, amici’s proposed filing urges the court to find defendants’ efforts to invoke the “public rights” exception unavailing and hold that the FDIC must try its claims against CBW Bank before a jury under SEC v. Jarkesy, 603 U.S. 109 (2024). Doc. 23 at 15–16 (Ex. 1). Amici assert their brief “provides a unique perspective that will not duplicate the parties’ briefing.” Doc. 23 at 4. And their brief purportedly “present[s] broader context on the overall program of enforcement activity pursued by the FDIC” and “reflects the perspective of not just one bank, CBW, but of members that collectively comprise a majority of the approximately 4,500 banking institutions across the country.” Id. Amici contend their brief, therefore, “would assist this Court in evaluating the broader context and implications of the issues presented in this case[.]” Id. at 2. “Federal courts have discretion in allowing participation as amicus curiae.” N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994 F.3d 1166, 1175 (10th Cir. 2021); see also Hammond v. City of Junction City, No. 00-2146-JWL, 2001 WL 1665374, at *1 (D. Kan. Dec. 17, 2001) (“Whether to permit a nonparty to submit a brief, as amicus curiae, is a matter within the sound discretion of the court.”). Courts allow amicus curiae briefs “upon a finding that the proffered information of amicus is useful or otherwise necessary to the administration of justice.” Hammond, 2001 WL 1665374, at *1. The court, in its discretion, finds the proffered brief useful enough and welcomes its assistance to help decide an issue of importance, namely the role of the Seventh Amendment in claims raised in the context of banking supervision and enforcement. Amici report that plaintiff consents to their motion. Doc. 23 at 1 n.1. Defendants, however, object. Id. Defendants assert that the amici’s brief “would largely duplicate CBW’s arguments and would be outside the strict page limits governing the parties.” Id. The court isn’t persuaded by either rationale. First, amici contribute a unique—not a duplicative—perspective. The ABA and the NBA are both trade associations with significant reach in the banking industry. The ABA has members in all 50 states and the District of Columbia. Id. at 3. The NBA boasts a diverse membership of Minority Depository Institutions in 43 states and territories. Id. It “supports the growth and success of Black, Hispanic, Asian, Pacific Islander, Native American, and women-owned and -operated banks.” Id. And BPI is a “public policy, research and advocacy group that represents universal banks, regional banks, and the major foreign banks doing business in the United States.” Id. Amici thus represent a broader swath of the banking industry. They thereby provide context and perspective that a single-branch bank in Weir, Kansas cannot. See Doc. 2 at 4 (identifying CBW as “a single-branch, Kansas state-chartered 2 bank headquartered in Weir, Kansas”). Second, because the court anticipates the brief’s context and perspective will prove “useful,” it also doesn’t share defendants’ concerns about strictly enforced page limits. Hammond, 2001 WL 1665374, at *1. For starters, amici don’t represent plaintiff, so the amici’s brief doesn’t violate any page limits that govern the parties. In any event, each time a court accepts an amicus curiae brief, additional pages follow. Neither of defendants’ objections sway the court. IT IS THEREFORE ORDERED BY THE COURT THAT the American Bankers Association, the Bank Policy Institute, and the National Bankers Association’s Motion for Leave to File a Brief as Amici Curiae Brief (Doc. 23) is granted. The court will consider the amici brief (Doc. 23, Ex. 1) filed and part of the record. IT IS SO ORDERED. Dated this 27th day of January, 2025, at Kansas City, Kansas. s/ Daniel D. Crabtree Daniel D. Crabtree United States District Judge 3

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