Conti v. Citizens Bank, N.A.

• Court: Court of Appeals for the First Circuit
• Decided: September 22, 2025
• Docket: 22-1770
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1770

JOHN CONTI, on behalf of himself and all others similarly situated,

Plaintiff, Appellant,

v.

CITIZENS BANK, N.A.,

Defendant, Appellee,

DOES 1 through 10, inclusive,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Rikelman, Howard, and Aframe, Circuit Judges.

Jonathan E. Taylor, with whom Deepak Gupta, Gupta Wessler LLP, David J. George, Brittany L. Brown, Janine L. Pollack, Michael Liskow, Lori G. Feldman, George Feldman McDonald, PLLC, Patrick Dowling, Jr., and D'Amico Burchfield, LLP were on brief, for Appellant. Geoffrey W. Millsom, with whom Brenna Anatone Force, Daniel J. Procaccini, Colten H. Erickson, and Adler Pollock & Sheehan P.C. were on brief, for Appellee. Stefan L. Jouret, Jouret LLC, Matthew Lambert, Deputy General Counsel, Conference of State Bank Supervisors, and Arthur E. Wilmarth, Jr., Professor Emeritus of Law, George Washington University Law School, on brief, for Conference of State Bank Supervisors and American Association of Residential Mortgage Regulators, amici curiae. Matthew A. Schwartz, H. Rodgin Cohen, Shane M. Palmer, Brandyn J. Rodgerson, Sullivan & Cromwell LLP, Gregg L. Rozansky, Tabitha Edgens, the Bank Policy Institute, David Pommerehn, Consumer Bankers Association, Thomas Pinder, Andrew Doersam, the American Bankers Association, Jonathan D. Urick, Tyler S. Badgley, U.S. Chamber Litigation Center, Justin Wiseman, Alisha Sears, and Mortgage Bankers Association, on brief, for the Bank Policy Institute, American Bankers Association, the Chamber of Commerce of the United States of America, the Consumer Bankers Association, and the Mortgage Bankers Association, amici curiae.

September 22, 2025 AFRAME, Circuit Judge. Rhode Island General Laws

section 19-9-2(a) requires all banks operating within the state to

pay mortgage borrowers interest on the funds they deposit into

mortgage-escrow accounts. See R.I. Gen. Laws § 19-9-2(a). In

July 2021, John Conti, representing a putative class, sued Citizens

Bank, N.A. ("Citizens"), a national banking association chartered

under the National Bank Act, 12 U.S.C. § 21 et seq., alleging that

Citizens failed to pay interest on mortgage-escrow accounts as

required by the Rhode Island statute.

Citizens moved to dismiss the case, see Fed R. Civ. P.

12(b)(6), arguing that the National Bank Act preempts the

application of the Rhode Island statute to national banks. The

district court agreed and dismissed Conti's complaint. Conti

appealed. While the appeal was pending, the United States Supreme

Court decided Cantero v. Bank of America, N.A., 602 U.S. 205

(2024), which clarified the legal standard for preemption under

the National Bank Act.

We conclude that the district court, writing without the

benefit of Cantero, incorrectly granted Citizens' motion to

dismiss on the ground that the National Bank Act preempted the

Rhode Island statute. We therefore vacate the judgment and remand

for further proceedings.

- 3 - I.

In July 2011, Conti financed the purchase of a

residential property in Rhode Island with a mortgage loan from

Citizens. The mortgage agreement required Conti to make advance

payments of municipal property taxes and homeowner's insurance

into a Citizens-maintained escrow account.1 Per the mortgage

agreement, Citizens did not pay Conti interest or earnings on the

escrow-account proceeds.

A decade later, Conti sued Citizens in the United States

District Court for the District of Rhode Island for breach of

contract and unjust enrichment.2 Conti asserted that Citizens

failed to pay its customers interest on their escrow accounts in

violation of the Rhode Island statute. The statute requires banks

operating in Rhode Island to pay interest on borrower funds

deposited into mortgage-escrow accounts:

1 An escrow account is "[a]n account of accumulated funds held by a lender for payment of taxes, insurance, or other periodic debts against real property." Account, Black's Law Dictionary (12th ed. 2024). These accounts provide banks with assurance that their loan collateral is protected against unexpected damage or tax foreclosure, while also allowing borrowers to periodically set aside funds for tax and insurance obligations and thereby avoid having to make one-time bulk payments. See Cantero, 602 U.S. at 210-11. 2 Conti brought the action on behalf of himself and a class of Citizens customers across Rhode Island, Connecticut, Massachusetts, New York, New Hampshire, and Vermont. Conti also sued in the alternative on behalf of a narrower class comprising only Rhode Island-based customers.

- 4 - Every mortgagee holding funds of a mortgagor in escrow for the payment of taxes and insurance premiums with respect to mortgaged property located in this state shall pay or credit interest on those funds at a rate equal to the rate paid to the mortgagee on its regular savings account, if offered, and otherwise at a rate not less than the prevailing market rate of interest for regular savings accounts offered by local financial institutions . . . .

R.I. Gen. Laws § 19-9-2(a).

In due course, Citizens moved to dismiss Conti's suit on

federal preemption grounds. It argued that pursuant to the

National Bank Act, it was not subject to any state law requiring

a bank to pay interest on escrow accounts. The district court

agreed and dismissed the case.

Conti timely appealed. While the appeal was pending,

the Supreme Court granted a petition for writ of certiorari to

review the Second Circuit Court of Appeals' decision in Cantero v.

Bank of America, N.A., 49 F.4th 121 (2d Cir. 2022), cert. granted,

144 S. Ct. 324 (2023). The case involved a substantively identical

issue to the one presented here -- whether the National Bank Act

preempted a New York law requiring banks to pay interest on escrow

accounts. See Cantero, 602 U.S. at 212.3 We stayed Conti's appeal

3 Following Cantero, the Supreme Court also granted a petition for writ of certiorari in a Ninth Circuit Court of Appeals case involving a California interest-on-escrow law. See Kivett v. Flagstar Bank, FSB, No. 21-15667, 2022 WL 1553266 (9th Cir. May 17, 2022), cert. granted, vacated sub nom., Flagstar Bank, N.A. v.

- 5 - to await the Supreme Court's action. See Order, Conti v. Citizens

Bank, N.A., No. 22-1770 (1st Cir. Nov. 27, 2023). Following the

Cantero decision, Conti's appeal resumed with full post-Cantero

briefing.

Conti now makes two arguments. He first contends that

the district court failed to apply the proper test for preemption

as outlined in Cantero. Additionally, he argues that, applying

Cantero, Citizens has failed to show that the Rhode Island statute

significantly interferes with federal-banking power such that it

should be preempted under the National Bank Act. For its part,

Citizens responds that, even assuming the district court did not

effectively apply the legal test as outlined in Cantero, we should

affirm the dismissal of Conti's complaint without a remand because

Conti's claim is preempted under Cantero in any event, and we may

affirm dismissal on any basis. We begin by describing the legal

framework.

II.

In 1863, Congress passed the National Bank Act. See Van

Allen v. Assessors, 70 U.S. (3 Wall.) 573, 589 (1865) (Chase, C.J.,

concurring). The Act creates a federal regulatory scheme to govern

national banks. See Cantero, 602 U.S. at 210. The Act enumerates

Kivett, 144 S. Ct. 2628 (2024). The Supreme Court vacated the judgment and remanded the case for further consideration post-Cantero. See Flagstar Bank, 144 S. Ct. at 2628.

- 6 - express powers for such banks including the power to "make

contracts," "sue and be sued," and "elect or appoint" a "board of

directors." 12 U.S.C. § 24. Subsequent amendments have granted

national banks additional express powers, including the ability to

"make, arrange, purchase or sell loans or extensions of credit

secured by liens on interests in real estate," i.e., to provide

mortgage loans. 12 U.S.C. § 371(a).

The National Bank Act also empowers banks to employ "all

such incidental powers as shall be necessary to carry on the

business of banking." 12 U.S.C. § 24, Seventh. Incidental powers

are those that are "convenient or useful in connection with the

performance of one of the bank's established activities pursuant

to its express powers under the National Bank Act." Arnold Tours,

Inc. v. Camp, 472 F.2d 427, 432 (1st Cir. 1972).

In establishing a comprehensive regulatory scheme for

national banks, the National Bank Act has long been understood to

preempt some, but not all, state regulation of such banks. See

Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 32-33

(1996) (describing the history of "national bank legislation" as

"one of interpreting grants of both enumerated and incidental

'powers' to national banks as grants of authority not normally

limited by, but rather ordinarily pre-empting, contrary state law"

but adding that "[t]o say this is not to deprive [s]tates of the

power to regulate national banks"); Cuomo v. Clearing House Ass'n

- 7 - L.L.C., 557 U.S. 519, 534–35 (2009) (describing how, for over a

century, states have enforced general laws and "banking-related

laws against national banks").

In 2010, the Dodd–Frank Wall Street Reform and Consumer

Protection Act ("Dodd–Frank"), Pub. L. No. 111–203, 124 Stat. 1376

(codified at 12 U.S.C. § 25b(b)), clarified the scope of preemption

under the National Bank Act for state-consumer-financial laws.

See Cantero, 602 U.S. at 213. Section 25b defines "state consumer

financial laws" as those laws that "directly and specifically

regulate[] the manner, content, or terms and conditions of any

financial transaction (as may be authorized for national banks to

engage in), or any account related thereto, with respect to a

consumer." 12 U.S.C. § 25b(a)(2). Under section 25b(b)(1),

state-consumer-financial laws are preempted "only if" they:

(1) have a discriminatory effect on national banks as compared to

state-chartered banks or (2) prevent or significantly interfere

with the exercise of national-bank powers "in accordance with the

legal standard for preemption in the decision of the Supreme Court

of the United States in [Barnett Bank]." Id. § 25b(b)(1)(A), (B).4

In codifying this standard, Congress stressed that federal-banking

4 Section 25b grants courts and the Office of the Comptroller of the Currency ("OCC") concurrent power to make preemption determinations. 12 U.S.C. § 25b(b)(1)(B). Preemption determinations by the OCC may be made by "regulation or order . . . on a case-by-case basis." Id.

- 8 - law "does not occupy the field in any area of [s]tate law." Id.

§ 25b(b)(4).

In Cantero, the Supreme Court elaborated on the

application of section 25b. As mentioned already, the case

involved a New York interest-on-escrow law. See Cantero, 602 U.S.

at 212. The Second Circuit had initially held the law preempted

under the National Bank Act, concluding that "any state law that

'purport[ed] to exercise control over a federally granted banking

power,' regardless of 'the magnitude of its effects'"

significantly interfered with federal-banking power such that the

law is preempted. Id. at 213 (quoting Cantero, 49 F.4th at 131).

The Supreme Court rejected that approach. It first

established that whether a state law significantly interferes with

federal-banking power is not a "categorical test that would preempt

virtually all state laws that regulate national banks . . . other

than generally applicable state laws." Cantero, 602 U.S. at

220-21. Instead, it instructed that courts must make "a practical

assessment of the nature and degree of the interference caused by

a state law." Id. at 219-20. To do this, Cantero directs courts

to perform a "nuanced comparative analysis" of the preemption cases

relied on in Barnett Bank. Id. at 220-21. Cantero specifically

identifies two categories of precedents for courts to consider.

The first category comprises cases in which the Supreme

Court found preemption: Franklin National Bank of Franklin Square

- 9 - v. New York, 347 U.S. 373 (1954); Fidelity Federal Savings & Loan

Ass'n v. De la Cuesta, 458 U.S. 141 (1982); First National Bank of

San Jose v. California, 262 U.S. 366 (1923); as well as Barnett

Bank itself. See Cantero, 602 U.S. at 220. The second category

consists of cases in which the Court found no preemption: Anderson

National Bank v. Luckett, 321 U.S. 233 (1944); National Bank v.

Commonwealth, 76 U.S. (9 Wall.) 353 (1869); and McClellan v.

Chipman, 164 U.S. 347 (1896). See Cantero, 602 U.S. at 220. "If

the state law's interference with national bank powers is more

akin to the interference in [the first category of] cases . . . ,

then the state law is preempted" but "[i]f the state law's

interference with national bank powers is more akin to the

interference in [the second category of] cases . . . then the state

law is not preempted." Id. The Court further observed that in

Barnett Bank and these earlier precedents, it "reached its

conclusions about the nature and degree of the state laws' alleged

interference with the national banks' exercise of their powers

based on the text and structure of the laws, comparison to other

precedents, and common sense." Id. at 220 n.3.

III.

A.

Having described the pertinent background, we first

consider whether the district court performed the analysis

required by Cantero in deciding that the National Bank Act

- 10 - preempted the Rhode Island statute. We review de novo the

district court's grant of a motion to dismiss, see Fed. R. Civ. P.

12(b)(6), taking the complaint's factual allegations as true and

affording the plaintiff all reasonable inferences that can be drawn

therefrom. See Union of Concerned Scientists v. Wheeler, 954 F.3d

11, 16 (1st Cir. 2020). We likewise review de novo the district

court's preemption determination. See Capron v. Off. of Att'y

Gen. of Mass., 944 F.3d 9, 22 (1st Cir. 2019). "[T]he burden of

proving preemption lies with the part[y] asserting it . . . ."

Me. Forest Prods. Council v. Cormier, 51 F.4th 1, 6 (1st Cir.

2022).

The district court held that the National Bank Act

preempts a state law wherever the law places "limits" on

federal-banking power. On this basis, the court concluded that,

because the Rhode Island statute limits "the power to establish

escrow accounts," it "'significantly interfere[d]' with a national

bank['s] incidental powers to utilize mortgage-escrow accounts."

Accordingly, the court found the Rhode Island statute preempted

pursuant to the National Bank Act and dismissed Conti's suit.5

The district court's preemption analysis diverged from

the analysis mandated by Cantero in two respects. First, in

5 The district court disposed of the matter before addressing class certification. See Fed. R. Civ. P. 23. As a result, "the sole plaintiff before it" was Conti, and the sole state statute at issue was R.I. Gen. Laws § 19-9-2(a).

- 11 - finding the Rhode Island statute preempted, the district court

determined only that the statute imposed "limits" on

federal-banking power; it did not conduct "a practical assessment

of the . . . degree of the interference." See Cantero, 602 U.S.

at 219-20. Second, it did not compare the interference produced

by the Rhode Island statute against the interference arising from

the Supreme Court's seminal banking-preemption precedents

identified in Barnett Bank. See id. at 220-21.

As support for its decision, the district court relied

principally on our holding in SPGGC, LLC v. Ayotte, 488 F.3d 525

(1st Cir. 2007), which Citizens also relies on to argue for

affirmance. In SPGGC, which predates Dodd-Frank and Cantero, this

Court found National Bank Act preemption of a New Hampshire law

prohibiting the issuance of certain types of gift cards because

the law restricted a national bank's incidental power to issue

such cards. 488 F.3d at 532-33. But SPGGC neither conducted a

practical assessment of the degree of interference posed by the

New Hampshire law nor included a "nuanced comparative analysis" of

the relevant Barnett Bank precedents. Cantero, 602 U.S. at 219-20.

The decision in SPGCC, like the district court's decision, turned

on the fact that the New Hampshire law "regulate[d] the terms and

conditions" of a banking product. 488 F.3d at 533. SPGGC's

methodology deviates from the analysis mandated by Cantero, and we

therefore are not bound by it. See Educadores Puertorriqueños en

- 12 - Acción v. Hernández, 367 F.3d 61, 67 (1st Cir. 2004) (stating that

"[t]o the extent that preexisting circuit precedent contradicts [a

more recent Supreme Court] holding, we regard that precedent as

abrogated by" the superseding holding).

B.

Having concluded that the district court's approach

differed from that subsequently required by Cantero, we turn to

the core legal question disputed by the parties: Has Citizens

nevertheless established that the Rhode Island statute is

preempted under Cantero?

Citizens contends that the Rhode Island statute is

preempted by the National Bank Act because the statute

significantly interferes with the exercise of its federal-banking

power. Specifically, Citizens argues that the Rhode Island statute

significantly interferes with its express power to engage in

mortgage lending pursuant to 12 U.S.C. section 371(a), and its

incidental power to offer mortgage-escrow accounts pursuant to 12

U.S.C. section 24, Seventh. Conti does not meaningfully dispute

the existence and applicability of the relevant federal-banking

powers identified by Citizens. With agreement on the relevant

national-banking powers at issue, the remaining question is

whether the Rhode Island statute significantly interferes with

Citizens' exercise of these powers.

- 13 - 1.

As explained above, to determine whether a state law

significantly interferes with federal power, we must conduct a

"nuanced comparative analysis" of Barnett Bank and the six Supreme

Court precedents on which Barnett Bank relied. See Cantero, 602

U.S. at 215-16, 220. We start by describing the three cases where

the Supreme Court found the state law preempted -- Barnett Bank,

Fidelity, and Franklin. We then address two cases where the Court

found the state law not preempted -- McClellan and Commonwealth.

Finally, we consider Anderson and First National Bank of San Jose,

two decisions involving seemingly similar state banking laws where

the Court reached opposite preemption conclusions.

i.

In Barnett Bank, the Supreme Court considered whether a

Florida statute prohibiting certain banks from selling most kinds

of insurance in small towns substantially interfered with

federal-banking power under the National Bank Act. 517 U.S. at

27. Examining the statutory text, the Court concluded that federal

law expressly permitted national banks to sell insurance and thus

"authorize[d] national banks to engage in activities that the State

Statute expressly forb[ade]." Id. at 31. Considering the obvious

conflict, the Court deemed the Florida law preempted. Id. at 37.

In Fidelity, the Supreme Court addressed whether a

California law barring due-on-sale clauses in mortgage contracts

- 14 - except when "the lender's security [wa]s impaired," 458 U.S. at

148–49, 155-56, was preempted by a federal regulation that

permitted federal savings-and-loan associations to include such

clauses "at [their] option," id. at 154 (quoting 12 C.F.R. § 545.8–

3(f) (1982)).6 Unlike in Barnett Bank, where the state law

precluded bank activity that federal law allowed, the California

law in Fidelity did not bar savings and loan associations from

including due-on-sale clauses entirely. It simply "limit[ed]

[their] availability." Id. at 156. The Court nevertheless

determined that the California law "deprived the [associations] of

. . . 'flexibility'" that the federal regulation "plainly

provide[d]." Id. at 154-55. In so doing, the Court concluded

that the California law "created 'an obstacle to the accomplishment

and execution of the full purposes and objectives' of the

due-on-sale regulation." Id. at 156 (quoting Hines v. Davidowitz,

312 U.S. 52, 67 (1941)).

Finally, in Franklin, which Cantero described as "[t]he

paradigmatic example of significant interference," 602 U.S. at

216, the Supreme Court considered "whether federal statutes which

authorize[d] national banks to receive savings deposits

conflict[ed] with New York legislation which prohibit[ed] them

6 Due-on-sale clauses "permit[] the lender to declare the entire balance of a loan immediately due and payable if the property securing the loan is sold or otherwise transferred." Id. at 145.

- 15 - from using the word 'saving' or 'savings' in their advertising or

business." Franklin, 347 U.S. at 374. As in Fidelity, the New

York law did not entirely "object to national banks taking savings

deposits or even to their advertising," id. at 378; it only

prohibited the "use of the word 'savings,' or its variants" in

bank advertising, id. at 374.

The Supreme Court held that the New York law was

"incompatible" with federal law. Franklin, 347 U.S. at 374. It

concluded that New York's law significantly interfered with

federal banks' ability to "accept and pay interest on time deposits

of people's savings," and specifically the incidental power "to

advertise that fact." Id. 378. Citing the National Bank Act and

Federal Reserve Act, the Court found that "Congress ha[d] given a

particular label to this type of account" i.e., savings account,

and national banks must "have the right to advertise . . . the

commonly understood description which Congress has specifically

selected." Id. at 375-76, 378. In preventing national banks from

using this "particular label," the Court concluded that New York's

law posed a "clear conflict" with federal-banking powers. Id. at

378.

Franklin also examined the practical impairment that

national banks would suffer from a state-law ban on using the term

"savings" in their advertising or business. 347 U.S. at 377-78.

The Court stressed that (1) the word savings "aptly describes . . .

- 16 - the type of business carried on by these national banks," id. at

378, and (2) advertising is "one of the most usual and useful of

weapons" in "[m]odern competition for business," id. at 377. In

view of these factors, the Court concluded that "[i]t would require

some affirmative indication [from Congress] to justify an

interpretation that would permit a national bank to engage in a

business but g[i]ve no right to let the public know about it."

Id. at 377–78.

In addition to these three cases, Cantero also

identifies precedents where the Court found that a state law was

not preempted.

In Commonwealth, the Supreme Court considered a Kentucky

law that taxed shareholders of bank stock by collecting directly

from banks. 76 U.S. at 360-61. Having determined that "it [wa]s

the share which [wa]s intended to be taxed, and not the cash or

other actual capital of the bank," the Court addressed the more

general argument as to whether banks may be subject to such state

legislation. Id. The Court held that so long as "[s]tate law

[did not] incapacitate[] the banks from discharging their duties,"

banks were presumed to be "subject to the laws of the State." Id.

at 362. Applying this principle, the Court reasoned that the

shareholder tax produced "no greater interference with the

functions of the bank than any other legal proceeding to which its

- 17 - business operations may subject it." Id. at 362–63. On these

grounds, the Court held the Kentucky law not preempted. Id.

In McClellan, the Court considered a Massachusetts

contract law that prohibited certain real estate transfers by

insolvent transferors. 164 U.S. at 358. The bank argued that the

state law interfered with a core banking function to take real

estate as collateral for prior debts. Id. As in Commonwealth,

the Court clarified that national banks were presumed subject to

state law where Congress had not expressly preempted state laws

and where "state interference [did not] frustrate[] the lawful

purpose of [C]ongress, or impair[] the efficiency of the banks to

discharge the duties imposed upon them." Id. at 359. It noted

that the Massachusetts law in question imposed "the same conditions

and restrictions to which all the other citizens of the state are

subjected." Id. at 358. The Court thus concluded that banks could

satisfy their federal obligations while still subjecting

themselves to "the general and undiscriminating law of the state."

Id. at 360-61.

Finally, we address First National Bank of San Jose and

Anderson. Separated by roughly twenty years, each case involved

a state escheat law that compelled banks to confer to the state

any deposits from inactive bank accounts. See First Nat'l Bank of

San Jose, 262 U.S. at 366-67; Anderson, 321 U.S. at 236. In both

- 18 - cases, the Court addressed whether the respective state law

infringed on a national bank's power to accept deposits. See First

Nat'l Bank of San Jose, 262 U.S. at 367, 369; Anderson, 321 U.S.

at 239-40. Despite the laws' facial similarities, the Court found

only the law in First National Bank of San Jose to be preempted,

see 262 U.S. at 370.

The California law at issue in First National Bank of

San Jose required deposits unclaimed for over twenty years to

escheat to the state. 262 U.S. at 366. The Court found the law

"unusual" in that it did not require proof of abandonment by the

depositor before "attempt[ing] to qualify . . . agreements between

national banks and their customers." Id. at 370. The Court

concluded the law would "directly impair" national banks'

efficiency in collecting deposits. Id. at 369-70. It was

specifically concerned that depositors "might well hesitate to

subject their funds to possible confiscation," which could then

impact a national bank's "ability to obtain loans from depositors."

Id. at 370. Accordingly, the Court found the law preempted. Id.

Conversely, Anderson held that a similar Kentucky

statute did not "unlawful[ly] encroach[] on the rights and

privileges of national banks." 321 U.S. at 252. The Court

determined that, unlike the law at issue in First National Bank of

San Jose, the law challenged in Anderson required proof of

depositor abandonment before Kentucky could seize a bank account.

- 19 - Id. Whereas the statute in First National Bank of San Jose allowed

a "confiscation" -- "so unusual and so harsh" that it would serve

as an "an effective deterrent to depositors" -- the law in Anderson

was "nothing more than performance of a duty by the bank" that is

"as old as the common law itself." Id. at 250-52. The Court

further noted that no "word in the national banking laws . . .

expressly or by implication conflict[ed] with the provisions of

the Kentucky statutes." Id. at 247-48.

For these reasons, the Supreme Court did not anticipate

that the Kentucky law would deter borrowers any more than "tax

laws, the attachment laws, or the laws for the administration of

estates of decedents." 321 U.S. at 252. It similarly concluded

that the law would "not infringe or interfere with any authorized

function of the bank." Id. at 249. As the Court explained, the

power to collect deposits has always come with the responsibility

to pay deposits; this law merely allowed the state "the right to

demand payment of the accounts in the place of the depositors."

Id. at 248, 251-52.

2.

Having now described the relevant universe of cases

identified by Cantero, we consider the significance of the Rhode

Island statute's interference against these precedents. See

Cantero, 602 U.S. at 220-21 (requiring courts to perform a "nuanced

- 20 - comparative analysis" of the preemption cases relied on in Barnett

Bank).

Four of the cases -- McClellan, Commonwealth, Barnett

Bank, and Fidelity -- are inapposite. We start with McClellan and

Commonwealth. In both cases, the Court held that national banks

could be subject to generally applicable state laws despite some

inevitable encroachment on federal-banking power. See McClellan,

164 U.S. at 359 (explaining that "the purpose and object of

[C]ongress in enacting the national bank law was to leave such

banks, as to their contracts in general, under the operation of

the state law, and thereby invest them as federal agencies with

local strength"); Commonwealth, 76 U.S. at 362-63 ("[National

banks] are subject to the laws of the State, and are governed in

their daily course of business far more by the laws of the State

than of the nation."); see also Cuomo, 557 U.S. at 534 (noting

that states "have always enforced their general laws against

national banks"). By contrast, the Rhode Island statute at issue

is not a generally applicable law. Rather, it is squarely

banking-specific. It "directly and specifically regulates" a bank

transaction or account by dictating the amount of interest a bank

must pay on escrow. 12 U.S.C. § 25b(a)(2). McClellan and

Commonwealth are thus of limited use in determining whether the

Rhode Island statute is preempted.

- 21 - Barnett Bank and Fidelity are also generally inapposite.

In these cases, the Court's preemption inquiry turned on an express

conflict between federal and state law. See Barnett Bank, 517

U.S. at 31 (stating that "the Federal Statute authorize[d] national

banks to engage in activities that the State Statute expressly

forb[ade]"); Fidelity, 458 U.S. at 156 (finding preemption because

a federal regulation expressly granted banks unrestricted

discretionary power which a California law then limited). Here,

Citizens has defined the relevant federal law as the express

banking power to make real estate loans, see 12 U.S.C. § 371(a),

and the incidental power to establish mortgage-escrow accounts,

see id. § 24, Seventh. Unlike Barnett Bank, nothing in the

National Bank Act expressly prohibits state interest-on-escrow

laws, and unlike Fidelity, nothing in the Act expressly reserves

for national banks the option to decide whether to pay interest on

escrow accounts. In fact, Citizens has not identified any

provision in the National Bank Act that suggests Congress sought

to preempt interest-on-escrow laws. Nor has Citizens identified

any other source of federal authority that might be relevant.7

7 Cantero references two federal laws in addition to the National Bank Act that "address[] national banks' operation of mortgage-escrow accounts." 602 U.S. at 211 & n.1. Neither is applicable here.

The Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., enacted in 1974, "extensively regulates

- 22 - Citizens claims, however, that Congress's silence

reflects a "deliberate choice" to exempt national banks from having

to comply with state interest-on-escrow laws. Specifically,

Citizens contends that Congress made a conscious decision not to

legislate on interest-on-escrow and thus left national banks with

national banks' operation of escrow accounts." Cantero, 602 U.S. at 211. Even so, the Act "does not mandate that national banks pay interest to borrowers" on such accounts. Id. Moreover, RESPA does not preclude the enforcement of state laws that grant additional protection to consumers beyond what RESPA provides. See 12 C.F.R. § 1024.5(c)(2)(i) (2025) ("The Bureau [of Consumer Financial Protection] may not determine that a [s]tate law or regulation is inconsistent with any provision of RESPA or this part, if the Bureau determines that such law or regulation gives greater protection to the consumer."). Citizens argues that the absence of a requirement in RESPA for national banks to pay interest on mortgage-escrow accounts was actually a deliberate decision by Congress to leave such discretion to national banks. As we discuss above, this argument is unpersuasive. Apart from this, Citizens points to no other evidence in RESPA's statutory text to support its contention that Congress sought to preempt state interest-on-escrow laws.

Cantero also references the Truth in Lending Act ("TILA"). Congress amended the TILA as part of Dodd Frank to require banks to comply with state and federal interest-on-escrow laws for four select categories of mortgages. See 15 U.S.C. § 1639d(a), (b), (g)(3). For those covered mortgages, banks "shall pay" borrowers interest on the amount held in escrow "in the manner as prescribed by th[e] applicable [s]tate or [f]ederal law." Id. § 1639d(g)(3). It is undisputed, however, that the mortgage at issue here is not covered by section 1639d, see id. § 1639d(b), and Citizens, the party carrying the burden to establish that the Rhode Island statute is preempted, states unambiguously that section 1639d is "utterly irrelevant to this case." Thus, applying the usual rules of party presentation, we do not further consider section 1639d's relevance to the preemption question presented here. See Manganella v. Evanston Ins. Co., 702 F.3d 68, 69 n.1 (1st Cir. 2012) ("We consider the issues as the parties have presented them.").

- 23 - the option "to pay interest as they see fit, within the confines

of the federal regulatory framework." We are unpersuaded.8

First, we cannot reconcile this congressional

intent-by-silence argument with section 25b, which sets out the

legal standard for banking preemption. See 12 U.S.C. § 25b(b)(1).

Section 25b articulates a limited preemption regime. It proceeds

from a default premise that state-consumer-financial laws may

lawfully regulate the conduct of national banks unless such laws

discriminate against national banks, or prevent or significantly

8 As part of this argument, Citizens contends that not only has Congress deliberately left national banks free to decide to pay interest on escrow accounts, but so too has the OCC. Citizens derives this argument from title 12, section 371(a), which grants the OCC regulatory oversight of national banks' mortgage lending. See 12 U.S.C. § 371(a). Citizens contends that, pursuant to this authority, the OCC promulgated standards for real estate loans, see 12 C.F.R. pt. 34 (2025), but made "a deliberate choice not to require national banks to pay interest on mortgage escrow accounts." Citizens in fact goes further. It asserts that, under 12 U.S.C. § 371(a), the OCC is the only entity that can regulate escrow accounts of national banks. While section 371(a) does grant the OCC regulatory oversight, it does not grant the OCC exclusive oversight. Were the OCC to have exclusive regulatory authority, states would be entirely divested of concurrent regulatory power. Congress did not intend this. See Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1196 (9th Cir. 2018) ("[T]he OCC does not enjoy field preemption over the regulation of national banks."); Cantero, 602 U.S. at 213 ("[N]ot all state laws regulating national banks are preempted."). We also reject Citizens' argument that we should infer preemption from the OCC's inaction. Dodd-Frank set out specific criteria that the OCC must follow to preempt a state law. See 12 U.S.C. § 25b(b)(1)(B), (b)(3), (b)(5)(A), (d). To circumvent such procedures by inferring preemption from the OCC's dormancy would upend Dodd-Frank's carefully reticulated scheme. See id.

- 24 - interfere with a national bank exercising federal-banking powers.

Id. To find preemption from Congress's silence would invert the

section 25b standard and create a presumption of preemption. Under

such a standard, a state banking law that does not discriminate

against national banks, or prevent or significantly interfere with

a national bank's exercise of federal-banking power, would

nonetheless be preempted absent positive textual evidence of an

intention to permit the state law's enforcement. Such a

construction would violate the plain text of section 25b.9

Citizens' intent-by-silence argument also does not

follow from the case law. None of the cases identified by Cantero

held a state law preempted based on congressional silence. Cf.

Fidelity, 458 U.S. at 154–56 (preempting local restrictions on the

discretionary exercise of federal power because the regulation

explicitly required as much). To the contrary, the Supreme Court

9 There may be circumstances where Congress's explicit decision to regulate a defined set of circumstances, but not another of like-kind, might be a factor in determining whether a state law significantly interferes with the federal-banking scheme. Cf. Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (explaining that the "negative implication" that Congress's explicit allowance of certain items in an associated group or list excludes related, unmentioned circumstances "depends on the context" and "does not apply 'unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it'" (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003))). But as noted above, Citizens makes no attempt to tie its intent-by-silence argument to any specific statutory language from which it can reasonably be inferred that Congress considered the impact of interest-on-escrow laws on national banks and specifically sought to preempt their application.

- 25 - has found that "national banking [is] subject to local

restrictions" when Congress has expressly indicated as much, as

well as "in the absence of such express language." Franklin, 347

U.S. at 378 & n.7 (emphasis added); see also Anderson, 321 U.S. at

247-48 (permitting Kentucky's escheat law despite "find[ing] [no]

word in the national banking laws which expressly or by implication

conflict[ed] with [its] provisions").10

In sum, because Citizens has pointed to no express

conflict, Barnett Bank and Fidelity are not useful in determining

whether the Rhode Island statute is preempted.

10 During oral argument, Citizens asserted that the Rhode Island statute should be preempted not because Congress was silent on the specific issue of state interest-on-escrow laws, but because there is a "presumption of preemption" that attaches to all federal-banking powers. As Citizens puts it, federal-banking powers, including incidental powers, are presumed "unqualified," or intentionally free from state restrictions. For the reasons discussed, such a presumption conflicts with the case law and Dodd-Frank's text. We also note that such a presumption would have a profound effect on state-consumer-financial laws that implicate incidental powers. Under such a presumption, the only way for states to enforce their consumer-financial laws against national banks would be for Congress to have "qualified" the relevant federal power by expressly permitting the enforcement of certain state laws. But incidental federal-banking powers are not enumerated; rather they arise organically based on bank needs. To "qualify" such incidental powers would require Congress to do the impossible, i.e., to affirmatively permit state regulation of a federal power that has never been written down. In practice, Citizens' argument that national-banking laws are presumed "unqualified" would lead to the preemption of almost all state banking laws that involve federal incidental banking powers. This, again, would equate to a field preemption regime, which Congress expressly disavowed. See 12 U.S.C. § 25b(b)(4).

- 26 - ii.

Having determined that McClellan, Commonwealth, Barnett

Bank, and Fidelity have limited relevance to the problem presented

here, we turn to the final three cases identified by Cantero: First

National Bank of San Jose, Anderson, and Franklin. Unlike the

cases previously discussed, each of these decisions involved state

laws that were banking-specific and that did not expressly conflict

with federal law.

In First National Bank of San Jose, the Court found a

California escheat law that seized bank account assets without

requiring proof of abandonment to be preempted. See 262 U.S. at

369-70. The Court determined the California escheat law was

"unusual" insofar as it did not require proof of a depositor's

abandonment before allowing the state to seize the assets. Id. at

370. The Court went on to stress the law's anticipated effect,

theorizing that the failure to require proof of a depositor's

abandonment before a state could seize a bank account would lead

depositors to "hesitate to subject their funds to possible

confiscation," with negative downstream implications for national

banks. Id.

Anderson reached the opposite conclusion about a

Kentucky state escheat law that differed from the California law

in that it did require proof of abandonment. See 321 U.S. at 252.

Like First National Bank of San Jose, the Court again looked at

- 27 - the construct of the law as well as its likely practical effects.

Id. at 248-49, 251-52. The Court determined that the law was

entirely consistent with what was expected of national banks

operating under the federal statutory scheme. Id. at 248-49. As

the Court put it, the Kentucky law was "as old as the common law

itself" and so constitutive of traditional banking duties as to be

"an inseparable incident of a national bank's" power. Id. at 248,

251.

The Anderson Court similarly determined that the

Kentucky law was not likely to deter borrowers any more than "tax

laws, the attachment laws, or the laws for the administration of

estates of decedents," 321 U.S. at 252, and would "not infringe or

interfere with any authorized function of the bank," id. at 249.

To the contrary, the Court explained, because the Kentucky law

mandating the payment of deposits was "nothing more than

performance of a duty by the bank imposed by the federal banking

laws," id. at 252, a bank's inability "to comply with [Kentucky's

law]" would be a basis "for closing the doors of the bank and

winding up its affairs," id. at 249.

Finally, in Franklin, the Court found a New York law

that prohibited the use of the term "savings" to be "incompatible"

with federal law. 347 U.S. at 374. Citing both the Federal

Reserve Act and National Banking Act, the Court stressed that the

term "savings" was a "particular label" that Congress had

- 28 - "specifically selected." Id. at 378, 375-376. As in Barnett Bank

and Fidelity, this textual hook served as a basis for finding

federal-banking power to be in clear conflict with the New York

law. See id. at 378 ("[National banks] do accept and pay interest

on time deposits of people's savings, and they must be deemed to

have the right to advertise that fact by using the commonly

understood description which Congress has specifically

selected."). As we note above, no equivalent textual hook exists

here.

But Franklin did not rest on that textual hook alone.

It also inferred that the New York law was inconsistent with the

overall federal scheme established by Congress. The Court first

recognized an incidental power to advertise savings accounts from

the express power of national banks to receive savings deposits.

347 U.S. at 376-78. The Court stressed that, were it to sanction

New York's law, it would be "permit[ting] a national bank to engage

in a business but [giving it] no right to let the public know about

it." Id. at 377–78. Such an anomalous "interpretation," the Court

continued, would "require some affirmative indication" from

Congress. Id. The Court also emphasized the material impact the

New York law would likely have on banking operations, noting that

advertising was "one of the most usual and useful of weapons" in

"[m]odern competition for business," id. at 377, and the word

"savings," independent of the "peculiar meaning the word may have

- 29 - in New York, . . . is a word which aptly describes, in a national

sense, the type of business carried on by these national banks,"

id. at 378. Taken together, the Court discerned "a clear conflict

between the law of New York and the law of the Federal Government."

Id.

In each of these cases, to determine whether the state

banking law at issue significantly interfered with the exercise of

federal power such that preemption was warranted, the Court

considered whether the state law was generally consistent with the

federal-banking scheme that Congress intended and the likely

practical effect of the state law's enforcement on a national

bank's exercise of federal-banking power as informed by generally

understood economic principles, or what Cantero calls "common

sense." 602 U.S. at 220 n.3; see also First Nat'l Bank of San

Jose, 262 U.S. at 369 (explaining that a state law is preempted

"whenever it . . . frustrates the purposes of the national

legislation, or impairs the efficiency of the bank to discharge

the duties for which it was created"); Anderson, 321 U.S. at 247-48

(noting state law may "conflict[] with" national banking laws "by

implication" or may "impose an undue burden on the performance of

the banks' functions").

Here, Citizens has failed to show that the Rhode Island

statute conflicts with the overall scheme of federal-banking law.

While Citizens notes that the Rhode Island statute is not so

- 30 - commonplace and constitutive of traditional banking duties as to

be "an inseparable incident of a national bank's" power, Anderson,

321 U.S. at 248, Citizens has not established that Rhode Island's

statute is out of step with the federal statutory scheme in the

mold of First National Bank of San Jose and Franklin.

To the contrary, as Citizens acknowledges,

interest-on-escrow laws have been enacted by at least twelve

states. Furthermore, Congress has mandated compliance with state

interest-on-escrow laws as to a select set of mortgages under

section 1639d of the TILA. See supra note 7. While Citizens does

not argue that section 1639d bears directly on whether Congress

sought to broadly permit or preempt state interest-on-escrow laws,

see id., Congress's decision to mandate compliance with state

interest-on-escrow laws as to certain mortgages provides some

evidence that such laws are not inconsistent with the

federal-banking scheme, as was the case in Franklin and First

National Bank of San Jose. See Franklin, 347 U.S. at 377–78

(explaining that finding no preemption "would require some

affirmative indication [by Congress] to justify an interpretation

that would permit a national bank to engage in a business but gave

no right to let the public know about it"); First Nat'l Bank of

San Jose, 262 U.S. at 369–70 (noting that the state statute

conflicts "with the letter or general object and purposes of the

legislation by Congress" by "attempt[ing] to qualify in an unusual

- 31 - way agreements between national banks and their customers long

understood to arise when the former receive deposits under their

plainly granted powers"); cf. Commonwealth, 76 U.S. at 363

(describing the routine nature of a state law as evident by the

fact that it was "one which Congress itself has adopted . . . [and]

which experience has justified in the New England [s]tates as the

most convenient and proper").

Apart from that, the Court's preemption determinations

in First National Bank of San Jose, Anderson, and Franklin turned

in large measure on the likely practical effects that a state law

would have on the ability of national banks to exercise their

powers. Here, by contrast, Citizens has not developed any

substantial argument about the practical effects that arise from

the enforcement of the Rhode Island statute on the exercise of

federal-banking power. Instead, Citizens proposes a different

preemption test, one that eschews any consideration of the degree

of interference arising from the state law. Specifically, Citizens

argues that preemption applies whenever a state law dictates the

terms of a banking product in a manner that impairs a bank's

"flexibility" or "efficiency." We reject Citizens' proposal for

three reasons.

First, Citizens' proposed test does not allow for the

kind of commonsense analysis that the Supreme Court performed in

First National Bank of San Jose, Anderson, and Franklin. As

- 32 - Citizens acknowledges, virtually every banking-specific state law

imposes some burden on the regulated bank and thus can be said to

affect a bank's flexibility or efficiency. But if this were

sufficient grounds for preemption, Citizens' proposed test would

obviate the need for an inquiry into whether a state law's

interference with federal-banking powers was significant. See

Cantero, 602 U.S. at 219-20 (requiring a "practical assessment of

the nature and degree of the interference").

Second, Citizens' proposal is at odds with section 25b.

See 12 U.S.C. § 25b. Whereas Citizens' test would preempt

virtually all state-consumer-financial laws, section 25b's

regulatory scheme presumes that at least some state laws regulating

bank products will survive a preemption analysis. Congress

specifically established a carefully designed scheme to permit the

enforcement of state-consumer-financial laws unless those laws

discriminate against national banks or prevent or significantly

interfere with a national bank's exercise of its federal-banking

powers. See id. § 25b(b)(1) ("State consumer financial laws are

preempted, only if . . . ."). Moreover, section 25b(a)(2) defines

state-consumer-financial laws as those that "directly and

specifically regulate[] the manner, content, or terms and

conditions" of a banking product and requires preemption of only

a subset of those laws. Id. § 25b(a)(2). Had Congress wanted to

preempt every state law that dictates a term of a banking product,

- 33 - as Citizens now argues, it simply could have preempted all

state-consumer-financial laws as defined under section 25b(a)(2).

But Congress did no such thing.

Third, Citizens' test does not follow from the relevant

precedents identified in Cantero. As support for its contention,

Citizens looks to Fidelity, First National Bank of San Jose, and

Franklin. It argues that, in these cases, the Supreme Court held

a state law preempted where the law attempted to dictate the terms

of a banking product or service in a manner that impeded a bank's

flexibility or efficiency. Citizens misreads these precedents.

For starters, Fidelity did not preempt California law

because it restrained a bank's flexibility per se. It preempted

California law because federal law expressly granted banks

unfettered discretion over the exercise of the power there at

issue, which California purported to limit. See 458 U.S. at

154-56. As discussed above, here federal law does not expressly

grant national banks discretion to decide whether to pay interest

on mortgage-escrow accounts.

As for First National Bank of San Jose and Franklin,

Citizens confuses correlation with causation. Yes, both cases

involved state laws that imposed terms on a banking product, but

the Supreme Court did not rest its respective preemption

determinations on that fact. As we have explained, the Court

emphasized instead the unusual nature of the state laws and the

- 34 - significant interference that the laws would impose on national

banks' exercise of federal-banking powers.11

If there is a point of reference for Citizens' argument

that preemption applies to any state law that dictates a term or

condition of a banking product, it may be found in the Second

Circuit's decision in Cantero, which held preempted "any state law

that 'purport[ed] to exercise control over a federally granted

banking power.'" 602 U.S. at 213 (quoting Cantero, 49 F.4th at

131). But the Supreme Court rejected that analysis, making clear

that Dodd-Frank declined to adopt "a categorical test that would

preempt virtually all state laws that regulate national banks."

Id. at 220-21. Accordingly, we likewise reject Citizens' argument

that National Bank Act preemption applies whenever a state law

dictates the terms of banking product in a manner that limits a

national bank's flexibility and efficiency.

Before concluding, we consider Citizens' final argument

for preempting the Rhode Island statute. Citizens contends that

Rhode Island's law significantly interferes with federal-banking

power because it forces Citizens to comply with a patchwork of

varying and conflicting state regulations concerning the payment

11Citizens also relies on SPGGC, 488 F.3d 525, for its "flexibility and efficiency" argument. As already explained, the preemption analysis employed there is inconsistent with Cantero.

- 35 - of interest on mortgage-escrow accounts. Citizens derives this

argument from Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007),

and First National Bank of San Jose.

In Watters, the Supreme Court addressed whether mortgage

lending by national-bank subsidiaries can be subject to state

supervision. See 550 U.S. at 7. The opinion noted that the

National Bank Act "has in view the erection of a system . . .

independent, so far as powers conferred are concerned, of state

legislation which, if permitted to be applicable, might impose

limitations and restrictions as various and as numerous as the

States." Id. at 14 (quoting Easton v. Iowa, 188 U.S. 220, 229

(1903)). A similar statement appears in First National Bank of

San Jose. See 262 U.S. at 370 ("If California may thus interfere

other states may do likewise, and, instead of 20 years, varying

limitations may be prescribed . . . . [Such results] seem

incompatible with the purpose to establish a system of governmental

agencies specifically empowered and expected freely to accept

deposits from customers irrespective of domicile. . . .").

Drawing on this authority, Citizens contends that state

interest-on-escrow laws impose "limitations and restrictions as

various and as numerous as the states," and thus significantly

interfere with Citizens' right to engage in real estate lending.

Like its prior proposal, this test fails for similar reasons.

- 36 - First, to the extent that the patchwork theory can be

said to have any relevance here, it must be considered in light of

the later enacted section 25b. See 12 U.S.C. § 25b. That

Dodd-Frank permits the application of at least some

state-consumer-financial laws to national banks, see id.

§ 25b(b)(1) ("State consumer financial laws are preempted, only if

. . . ."), indicates that Congress anticipated exposing national

banks to some patchwork of state laws. In addition, if avoiding

a patchwork of state laws were an animating concern of the National

Bank Act after Dodd-Frank, it would justify preempting not only

state-consumer-financial laws but all state laws, as even

generally applicable state laws impose varying and conflicting

requirements on banks. However, all parties agree that generally

applicable state laws are in the main permissible. See Cantero,

602 U.S. at 219 (noting that national banks "remain subject to

state law governing 'their daily course of business' such as

generally applicable state" laws (quoting Commonwealth, 76 U.S. at

362)). Furthermore, to the extent that the patchwork theory would

seemingly justify preempting all state laws, Congress has

expressly declined to adopt such a regime. See Cantero, 602 U.S.

at 221; see also 12 U.S.C. § 25b(b)(4) (stating that the National

Bank Act "does not occupy the field in any area of [s]tate law").

Thus, Citizens' patchwork argument, sounding in field

preemption, is not convincing. Watters and First National Bank of

- 37 - San Jose do identify the profusion of varying state restrictions

as an animating concern of the National Bank Act. See Watters,

550 U.S. at 14; First Nat'l Bank of San Jose, 262 U.S. at 369-70.

That view, which has appeared only occasionally over the past

century, arises from Easton, 188 U.S. at 229, where the Court

notably embraced a field preemption regime, see, e.g., id. at 230

("Such being the nature of these national institutions, it must be

obvious that their operations cannot be limited or controlled by

state legislation."); id. at 231-32 ("[W]e are unable to perceive

that Congress intended to leave the field open for the states to

attempt to promote the welfare and stability of national banks by

direct legislation.").

Since Easton, the Supreme Court and Congress have

squarely rejected the notion that the National Bank Act "occup[ies]

the field in any area of [s]tate law." 12 U.S.C. § 25b(b)(4); see

also Barnett Bank, 517 U.S. at 33 (explaining that states are not

deprived "of the power to regulate national banks" so long as they

"do[] not prevent or significantly interfere with the national

bank's exercise of its powers"); Cuomo, 557 U.S. at 534 ("States,

on the other hand, have always enforced their general laws against

national banks -- and have enforced their banking-related laws

against national banks for at least 85 years. . . ."); Cantero,

602 U.S. at 217 ("Of course, not all state laws regulating national

banks are preempted.").

- 38 - Over this same period, the Supreme Court rarely relied

on the patchwork theory as a basis for National Bank Act

preemption. Aside from Watters, Citizens' patchwork argument does

not appear in recent Supreme Court authority. Cantero did not

include Watters among the relevant precedents.12 And while Cantero

did cite First National Bank of San Jose, see 602 U.S. at 218, it

made no mention of the patchwork argument, instead describing the

holding as an attempt to "'qualify in an unusual way agreements

between national banks and their customers,'" which could then

"cause customers to 'hesitate' before depositing funds at the

bank," id. (quoting First Nat'l Bank of San Jose, 262 U.S. at 370).

The same is true of Anderson, which in differentiating First

National Bank of San Jose, similarly did not mention the patchwork

argument. See Anderson, 321 U.S. at 250-52. The case law's

scattered consideration of the patchwork argument, as well as the

patchwork argument's uneasy fit with Congress's and the Court's

rejection of a field preemption regime, persuades us that the

12 We note also that Watters did not involve substantive state consumer financial regulations but rather state licensing, reporting, and visitorial regimes. Watters, 550 U.S. at 8, 14-15. This does not mean that Watters -- which was decided after Barnett Bank -- has no possible relevance. We do not think, however, that Watters can govern the preemption analysis for a state consumer financial regulation after the enactment of section 25b.

- 39 - argument is an insufficient basis for concluding that the Rhode

Island statute is preempted.13

3.

Applying the standard adopted by the Supreme Court in

Cantero, we conclude that Citizens has failed to satisfy its burden

of showing the Rhode Island statute should be preempted as a matter

of law. Unlike the state laws at issue in McClellan and

Commonwealth, the Rhode Island statute is a banking-specific law.

And unlike in Barnett Bank and Fidelity, there is no express

conflict between the Rhode Island statute and the National Bank

Act. Citizens has likewise failed to demonstrate, unlike in First

National Bank of San Jose and Franklin, that the Rhode Island

statute conflicts with the overall federal-banking scheme. Nor

has Citizens established, as did the Court in First National Bank

of San Jose, Anderson, and Franklin, that the Rhode Island

statute's practical implications will significantly interfere with

13 At various points in its brief, Citizens refers to a preemption rule promulgated by the OCC in 2004, and subsequently amended in 2011, that sought to preempt fourteen categories of state laws including those concerning "escrow accounts." See Bank Activities and Operations; Real Estate Lending and Appraisals, 69 Fed. Reg. 1904, 1917 (Jan. 13, 2004); Office of Thrift Supervision Integration; Dodd-Frank Act Implementation, 76 Fed. Reg. 43459, 43557 (July 21, 2011) (codified at 12 C.F.R. § 34.4(a)). Citizens does not meaningfully rely on the rule as grounds for its claim that the Rhode Island statute is preempted. We therefore do not address its significance. See Cantero, 602 U.S. at 221 n.4 (instructing that Courts of Appeals "may address as appropriate on remand . . . the significance here (if any) of the preemption rules of the [OCC]").

- 40 - Citizens' exercise of its federal-banking powers. Instead,

Citizens has proposed other sweeping theories of preemption that

would essentially, albeit in different ways, impose field

preemption regimes. Citizens' proposals cannot be reconciled with

section 25b or Supreme Court precedent. Citizens has therefore

failed to satisfy its burden of showing that as a matter of law,

the Rhode Island statute is preempted by the National Bank Act.

See Me. Forest, 51 F.4th at 6 (stating that "the burden of proving

preemption lies with the parties asserting it"). Accordingly,

Conti's complaint should be allowed to proceed.14

IV.

For the reasons described, we vacate the judgment and

remand for further proceedings consistent with this opinion.

So ordered.

14Conti brought two claims against Citizens: a breach of contract claim and, in the alternative, an unjust enrichment claim. Apart from the preemption question, Citizens requests that we dismiss the unjust enrichment claim. The district court did not reach this question. As we are remanding for further proceedings, we leave this question for the district court in the first instance.

- 41 -