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THe DoDD-FraNK aCT aND FeDeral PreemPTIoN

appear in the action if it chooses to intervene; and (3) appeal from any order or judgment as if it were a party in the proceeding, whether or not it chooses to intervene. The Bureau is required to adopt implementing regulations to provide guidance with respect to these requirements.44

Although the Act both enhances and diminishes the ability of states to sue for violations of federal law, it does not restrict state authority to institute actions or proceedings arising only under state law.45 Perhaps in order to drive this point home, it explicitly states that no provision of the Act limits or affects the authority of state securities or insurance commissions or regulators to adopt rules, initiate proceedings and take any other action under state law.

national Banks, Federal savinGs associations and visitorial Powers

The Act essentially codifies the Supreme Court’s definition of visitorial powers for national banks and federal savings associations. In Cuomo v. Clear- ing House Assn., L.L.C.,46 the Court rejected the OCC’s definition of “visitorial powers” in the National Bank Act. A provision of the act exempted national banks from visitorial powers that are not authorized by federal law.47 The OCC adopted a regulation specifying that only the OCC could exercise visitorial powers and defined “visitorial powers” to include examination, inspection, regulation, supervision and enforcement.48 The Court held that this definition was impermissible because “visitorial powers” include only administrative over- sight and supervision — not enforcement.49 As a result, the OCC could only issue regulations prohibiting states from conducting examinations, inspections and other supervisory activities; the OCC could not define “visitorial powers” to prevent states from bringing enforcement actions against national banks.50

The CFP Act preserves this scheme by adding language to a new section in the National Bank Act that prohibits any provision of the act relating to “visitorial powers” from being construed to limit the authority of states to bring enforcement actions against national banks.51 The amended section also states that OCC authority to bring enforcement actions under the Na- tional Bank Act or Section 5 of the Federal Trade Commission Act does not bar private actions under state or federal law. The Home Owners’ Loan Act is similarly amended so that these visitorial powers provisions apply to fed-


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