The banks sued the Federal Deposit Insurance Corporation (FDIC), seeking to invalidate a guidance document issued by the FDIC. The specific guidance document, Financial Institutions Letter 32 (“FIL 32”), addressed non-sufficient funds (NSF) fees, defined as “the charging of additional insufficient funds fees when a transaction is presented for payment multiple times.” The letter advised banks that NSF fees can lead to unfair or deceptive trade practices if charged multiple times on transactions without disclosing that practice to their clients. The banks contended that the Administrative Procedure Act (APA) controlled FIL 32 because it forces banks to undertake additional compliance measures and that the agency violated the APA by implementing the rule without notice and comment. The agency argued that FIL 32 did not amount to a final order and only functioned as a non-binding guidance document. The district court dismissed the case, finding that FIL 32 did not qualify as a final agency action and concluded that the banks lacked standing. The banks appealed.
In Minn. Bankers Ass’n v. FDIC, 152 F.4th 893 (8th Cir. 2025), the court affirmed the suit’s dismissal, holding the banks’ claim was not yet ripe for judicial review. The court emphasized that FIL 32 did not constitute a violation of the APA because it was a non-final agency action that neither compelled action nor prohibited otherwise lawful conduct. The court characterized FIL 32 as a guidance document that merely warns financial institutions of practices that could present risks of unfair and deceptive acts and encourages them to review their own risk-mitigating practices. The court further found that withholding consideration on this case would not negatively affect the government agency because it did not rely on FIL 32 to bring enforcement actions.
By Charlie Cole [email protected]
Edited By Taylor O’Brien [email protected]
Edited By Callighan Ard [email protected]
Edited By Hayden Mariott [email protected]