On December 12, 2017, the United States District Court for the Southern District of New York dismissed, without prejudice, the DFS's lawsuit against the OCC. The DFS had filed suit in May 2017, challenging the OCC's authority to issue special-purpose national bank charters to FinTech companies ("FinTech Charters"). After a round of motions to dismiss, the court found that 1) the DFS lacked standing and 2) the matter was not ripe for adjudication, because the OCC had not reached a final decision to issue FinTech Charters. However, the court recommended that the OCC provide DFS with notice "as soon as it reaches a final decision given DFS's stated intention to pursue these issues."
In its dismissal order, the court pointed out that the OCC's initial FinTech Charter White Paper and supplemental materials were published under Comptroller Thomas J. Curry, an appointee of former President Obama. From May to November 2017, President Trump had appointed Keith Noreika as Acting Comptroller, and in November 2017, Joseph M. Otting was sworn in as the new Comptroller. Given the multiple changes in appointment, the court noted that the FinTech Charter, "a policy first discussed by an appointee of President Obama, has become increasingly uncertain under President Trump's two Comptrollers of the Currency."
It remains to be seen whether Comptroller Otting will embrace the FinTech Charter policy explored by his predecessors. Meanwhile, the DFS has issued a statement expressing its hope that "the OCC will abandon its pursuit of the chartering of nondepository institutions." All indications are that the DFS is committed to renewing its legal challenges should the OCC make a final decision to issue FinTech Charters.
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