Consumer advocates and state regulators have welcomed the Supreme Court's Cuomo decision because it presages significant growth of state power to protect consumers and regulate federally chartered institutions. They have also read the decision as signaling a policy change that supports federal legislative proposals to divest federal banking statutes of preemptive authority over state consumer protection laws. The former claim perhaps protests too much, and the latter proposal would redress a recent imbalance by breaking the scales. Absent such a legislative detonation, Cuomo does mean more work for banking lawyers and their clients, parsing out those very few pieces of comprehensive OCC preemption regulations that a court might find "unreasonable."

Cuomo stands for the proposition that a state attorney general has as much power as a common citizen who, empowered by state consumer protection law that regulates an issue that is not substantively preempted, can file a lawsuit and use civil discovery. The attorney general cannot command production of documents from a federal bank without judicial help and supervision (something an AG can do to other organizations with a "civil investigative demand"). The attorney general must conform to the court's rulings on privilege, examination report confidentiality and a host of other issues, just like a private litigant.

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