In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts.  See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).

In Kivett, Flagstar Bank appealed the district court’s ruling that Ninth Circuit precedent foreclosed any argument that the National Bank Act preempted a California state law requiring banks pay 2% interest to borrowers on money held in their escrow accounts.  The Ninth Circuit affirmed, and the defendant filed a petition for certiorari.  While the petition was pending, the Supreme Court decided Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), which provided guidance on the standard of preemption under the National Bank Act.  In the process, the Court subsequently vacated the judgment in Kivett and remanded the case for reconsideration in light of that guidance.

On remand, the Ninth Circuit determined that its previous reasoning was sound, writing that “the Supreme Court’s decision in Cantero suggests . . . [w]e properly applied the test for preemption from Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996), in concluding that no legal authority established that [interest on escrow] laws significantly interfered with national bank powers, and that the text of Dodd–Frank also reflected Congress’s view that such laws do not.”  Kivett, 2024 WL 3901188 at *2.

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Photo of Marianne Spencer Marianne Spencer

Marianne Spencer represents companies in high-stakes litigation in state and federal courts nationwide. Her practice focuses on class actions and complex commercial disputes, with particular depth in defending clients against privacy lawsuits arising from emerging technologies.

Marianne represents clients across the full lifecycle…

Marianne Spencer represents companies in high-stakes litigation in state and federal courts nationwide. Her practice focuses on class actions and complex commercial disputes, with particular depth in defending clients against privacy lawsuits arising from emerging technologies.

Marianne represents clients across the full lifecycle of a dispute—from pre-suit counseling through appeal—and has a strong track record at each phase. Recent successes include defeating class certification in a billion-dollar privacy class action and securing a complete victory for a financial services client facing tens of millions of dollars in potential exposure. She has achieved favorable results for clients in the financial services, technology, pharmaceutical, and sports industries at all stages of litigation, including by securing early dismissals, winning summary judgment, and defeating class certification.

Before joining the firm, Marianne served as a law clerk to the Honorable Steven M. Colloton of the U.S. Court of Appeals for the Eighth Circuit. She maintains an active pro bono practice focused on civil rights, housing, and immigration.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.